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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

HASSAN MAYHEW,

                            Appellant                No. 1864 EDA 2015


               Appeal from the PCRA Order Entered May 21, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0609791-1995


COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

HASSAN MAYHEW,

                            Appellant                No. 2408 EDA 2015


               Appeal from the PCRA Order Entered June 30, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0700711-1995


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                        FILED MARCH 16, 2016

        Appellant, Hassan Mayhew, appeals pro se from two separate orders,

each of which denied, as untimely, identical petitions Appellant filed under

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.1          After

careful review, we affirm the order in case 711-1995 (2408 EDA 2015). In

case 791-1995 (1864 EDA 2015), we reverse the order, vacate Appellant’s

judgment of sentence, and remand for resentencing.

       On April 9, 1995, Appellant – who was 15 years old at the time –

participated in a series of robberies with his adult co-defendant, Eddie

Dickens. The robberies culminated in the murder of George Harris, who was

shot by Appellant as he fled from a store being robbed by Appellant and

Dickens.

       Appellant was tried before a jury and ultimately convicted, in case

791-1995, of second-degree murder, robbery, possessing an instrument of

crime (PIC), and criminal conspiracy.            On July 2, 1996, Appellant was

sentenced to a mandatory term of life without the possibility of parole

(hereinafter, “LWOP”) for his murder conviction.         No further penalty was

imposed for his remaining offenses.

       In case 711-1995, the jury convicted Appellant of multiple counts of

robbery, PIC, criminal conspiracy, and carjacking. At the sentencing hearing

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1
  Appellant was charged under two separate bills of information, docketed by
the trial court at CP-51-CR-0609791-1995 (hereinafter “791-1995”) and CP-
51-CR-0700711-1995 (hereinafter “711-1995”). The cases were ultimately
consolidated for trial. Appellant has filed notices of appeal in both cases, as
well as two separate briefs raising different issues. However, because
Appellant’s claims are interrelated, we consolidate his two appeals.




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on July 2, 1996, the court imposed an aggregate term of ten to twenty

years’ incarceration, to be served consecutively to his LWOP sentence in

case 791-1995.

      Appellant filed a timely direct appeal, but this Court dismissed it after

he failed to file a brief.    In August of 1997, Appellant filed a timely PCRA

petition seeking the restoration of his appeal rights nunc pro tunc. The court

did not appoint PCRA counsel, as Appellant requested. On August 15, 1997,

the court granted Appellant’s petition and reinstated his direct appeal rights.

However, no direct appeal was filed by Appellant.

      In February of 2001, Appellant filed a second, untimely PCRA petition,

again seeking the restoration of his direct appeal rights.    The PCRA court

appointed counsel and granted Appellant’s petition, but this Court quashed

his subsequent, counseled appeal, concluding that the PCRA court did not

have jurisdiction to reinstate Appellant’s direct appeal rights.          See

Commonwealth         v.      Mayhew,   No.   1083   EDA   2001,   unpublished

memorandum at 4-5 (Pa. Super. filed May 29, 2002).

      In April of 2008, Appellant filed a third, pro se PCRA petition alleging,

inter alia, that the 1997 PCRA court erred by failing to appoint him direct

appeal counsel after reinstating his appeal rights nunc pro tunc. The PCRA

court denied Appellant’s petition as untimely, and this Court affirmed on




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appeal.     Commonwealth v. Mayhew, No. 2787 EDA 2003, unpublished

memorandum (Pa. Super. filed May 12, 2004).2

        On June 28, 2010, Appellant filed identical, pro se PCRA petitions in

each of his two cases, 791-1995 and 711-1995. Those petitions underlie the

present appeal.       For some unexplained reason, the PCRA court took no

action on either petition.         Over the next several years, Appellant filed

amended petitions and other pro se motions in each case, still with no action

or rulings by the court. In particular, on July 11, 2012, Appellant filed, in

both cases 711-1995 and 791-1995, an “Addendum to PCRA Petition Raising

New Claim Under the Authority of Miller v. Alabama.”3 Therein, Appellant
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2
  After concluding that we did not have jurisdiction to afford Appellant post-
conviction relief on his untimely petition, we stated:

               [W]e also note with disapproval that although Appellant’s
        first, timely, PCRA petition in 1997 contained a request for
        appointment of counsel, the record contains no indication that
        the request was, as it should have been, granted. Moreover,
        counsel appointed for Appellant’s second, untimely, petition was
        none other than the same appellate counsel whose failure to file
        a brief resulted in the necessity for post conviction proceedings
        to restore Appellant’s appeal rights. It should also be noted that
        although the record contains a letter from that same counsel to
        Appellant explaining that he had failed to file the appellate brief
        on Appellant’s behalf because of other commitments, there is no
        indication that an extension of the briefing schedule was ever
        sought. Although we are without jurisdiction to address what
        appears to be a truly unfortunate concatenation of events, we
        would attempt to forestall any repetition.

Id. at 2.
3
    Miller v. Alabama, 132 S.Ct. 2455 (2012).



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argued that his mandatory LWOP sentence was illegal under the Supreme

Court’s holding in Miller, which was issued on June 25, 2012.4

        On June 24, 2014, the PCRA court issued, in case 791-1995, a

Pa.R.Crim.P. 907 notice of its intent to dismiss Appellant’s petition without a

hearing. Appellant filed a pro se response, but on May 21, 2015, the PCRA

court issued an order and opinion denying, as untimely, the petition filed in

791-1995. Thereafter, on May 26, 2015, the PCRA court issued a Rule 907

notice in case 711-1995, and issued an order dismissing the petition filed in

that case on June 30, 2015.

        Appellant pro se filed two separate, timely notices of appeal in each

case.     In case 791-1995 (docketed by this Court at 1864 EDA 2015),

Appellant presents the following seven issues for our review:

        I. Whether [the PCRA court] committed reversible error in
        dismissing [Appellant’s] 2010 [PCRA] petition where it should
        have been viewed as a mere extension of Appellant’s first timely
        1997 [PCRA] petition?

        II. Did the [PCRA] court err in not appointing counsel in
        Appellant’s initial 1997 [PCRA] petition?

        III. Did the court err in never ruling on Appellant’s first timely
        [PCRA] petition?

        IV. Did the trial court abuse it’s [sic] discretion in the seating of
        prospective juror George E. Klenk, Jr. as juror No. 10?

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4
    We discuss Miller’s holding in detail, infra.




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      V. Did the trial court err in refusing a defense challenge for
      cause?

      VI. Did the trial court err in granting the Commonwealth’s
      motion to consolidate for trial all charges at [cases 791-1995
      and 711-1995]?

      VII. Does Appellant’s mandatory sentence of life without parole
      violate the Eighth Amendment’s prohibition on cruel and unusual
      punishment?

Appellant’s Brief in Case 791-1995 (hereinafter “Appellant’s Brief I”) at vi

(unnecessary capitalization omitted).   In case 711-1995 (docketed by this

Court at 2408 EDA 2015), Appellant presents two issues for our review:

      I. Whether the trial court erred in consolidating all charges [in
      case 711-1995] with charges [in case 791-1995] for trial?

      II. Whether the trial court erred in denying severence [sic] from
      [Appellant’s] co-defendant and trying juvenile Appellant in front
      of [a] “death-qualified” jury for robbery?

Appellant’s Brief in Case 711-1995 (hereinafter “Appellant’s Brief II”) at ii

(unnecessary capitalization omitted). We will address Appellant’s nine total

issues in turn.

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.   Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.   Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007).    Under the PCRA, any petition for post-conviction



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relief, including a second or subsequent one, must be filed within one year of

the date on which the judgment of sentence becomes final, unless one of the

following exceptions applies:

      (b) Time for filing petition.--

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition
         alleges and the petitioner proves that:

            (i) the failure to raise the claim previously was the
            result of interference by government officials with
            the presentation of the claim in violation of the
            Constitution or laws of this Commonwealth or the
            Constitution or laws of the United States;

            (ii) the facts upon which the claim is predicated were
            unknown to the petitioner and could not have been
            ascertained by the exercise of due diligence; or

            (iii) the right asserted is a constitutional right that
            was recognized by the Supreme Court of the United
            States or the Supreme Court of Pennsylvania after
            the time period provided in this section and has been
            held by that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Here, Appellant’s 2010 petitions were clearly filed years after his

judgment of sentence became final; thus, he must prove the applicability of

one of the exceptions set forth in 42 Pa.C.S. § 9545(b).

      In Appellant’s Brief I (case 791-1995), he first argues that he does not

need to satisfy a timeliness exception because his 2010 petition constituted



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an ‘extension’ of his timely petition filed in 1997. Appellant reasons that his

1997 petition was never ruled on and, therefore, it was “still pending and

active” when he filed his petition in 2010, making the 2010 petition

essentially an amendment of the timely filed 1997 petition. Appellant’s Brief

I at 3. However, the certified record confirms that the PCRA court did rule

on Appellant’s 1997 petition – it granted it and reinstated Appellant’s direct

appeal rights nunc pro tunc.    Indeed, Appellant admits this fact when he

states that he “received an order from the [PCRA court] dated August 15,

1997[,] granting Appellant his right to direct appeal nunc pro tunc.”

Appellant’s Brief I at 14 (unnecessary capitalization omitted). Accordingly,

Appellant’s contention that his 2010 petition is a mere ‘extension’ of his

1997 petition is meritless.

      Appellant next asserts that he was denied his right to counsel on his

first PCRA petition filed in 1997. Relatedly, he argues that the PCRA court

presiding over that 1997 petition erred by not appointing him direct appeal

counsel after reinstating his appellate rights nunc pro tunc. While the record

supports Appellant’s argument that the PCRA court erred by not appointing

him counsel in 1997, we do not have jurisdiction to afford him relief because

he has not pled, nor proven, that any timeliness exception applies to this

claim.   Further, even if we liberally construed Appellant’s argument as a

claim of governmental interference under section 9545(b)(1)(i), i.e., that the

court interfered with his right to appeal by not appointing counsel, the

present petition was clearly filed well beyond the 60 day time-requirement of

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section 9545(b)(2). Indeed, as discussed supra, Appellant raised this same

claim in 2008, proving that he knew about the court’s failure to appoint

counsel   in   1997   years   before   filing   the   present   petition   in   2010.

Consequently, we are without jurisdiction to address whether the 1997 PCRA

court erred by failing to appoint PCRA and/or direct appeal counsel.

      In the third issue presented in Appellant’s Brief I, he asserts that the

PCRA court erred by not ruling on his PCRA petition filed in 1997. This claim

was addressed in our discussion of Appellant’s first issue.

      Appellant’s next three issues in Appellant’s Brief I, and his two issues

in Appellant’s Brief II, involve claims of trial court error.       Specifically, he

argues that the court erred by: (1) seating a certain juror, despite a

peremptory challenge by Appellant’s co-defendant, see Appellant’s Brief I at

17-18; (2) “refusing a defense challenge for cause” regarding another juror,

id. at 18-19 (unnecessary capitalization omitted); (3) “granting the

Commonwealth’s motion to consolidate for trial all charges” Appellant faced

in his two separate case, id. at 22 (unnecessary capitalization omitted); see

also Appellant’s Brief II at 1-2; and (4) denying Appellant’s motion to sever

his case from that of his adult co-defendant, see Appellant’s Brief II at 2-7.

None of these claims satisfy an above-stated exception, nor do they meet

the 60-day mandate of section 9545(b)(2).




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       In the final issue raised in Appellant’s Brief I, Appellant asserts that his

mandatory LWOP sentence is illegal under Miller.5               With this claim,

Appellant seeks to satisfy the ‘new constitutional right’ exception of section

9545(b)(1)(iii). That subsection requires a petitioner to prove that “there is

a ‘new’ constitutional right and that the right ‘has been held’ by ‘that court’

to apply retroactively.” Commonwealth v. Abdul-Salaam, 812 A.2d 497,

501 (Pa. 2002). The Abdul-Salaam Court interpreted “the language ‘has

been held’ in 42 Pa.C.S. § 9545(b)(1)(iii) [to] mean[] that a retroactivity

determination must exist at the time that the petition is filed.” Id. at 502.

       In Miller, the High Court clearly established a new constitutional right

by holding that “the Eighth Amendment forbids a sentencing scheme that

mandates life in prison without possibility of parole for juvenile offenders.”
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5
  Appellant filed petitions raising the Miller issue in both cases 711-1995
and 791-1995, yet he did not receive a mandatory LWOP sentence in case
711-1995. Accordingly, our analysis of Appellant’s Miller issue pertains only
to case 791-1995. We also note that Appellant first raised his Miller claim
in an amended petition filed on July 11, 2012. See Appellant’s “Addendum
to PCRA Petition Raising New Claim Under the Authority of Miller v.
Alabama,” 7/11/12. We acknowledge that the PCRA court did not expressly
grant Appellant leave to file that amended petition. See Pa.R.Crim.P.
905(A). However, the record indicates that court accepted Appellant’s July
11, 2012 “Addendum,” considered his Miller issue as being properly raised
and preserved, and determined whether that claim satisfied a timeliness
exception. See PCRA Court’s “Order and Memorandum,” 5/21/15, at 2
(unnumbered) (acknowledging that Appellant “did not waive his Miller claim
because he raised it within sixty days of the date that Miller was decided,”
yet denying Appellant’s petition as untimely after concluding that his
“invocation of the constitutional rights created in Graham [v. Florida, 103
S.Ct. 2011 (2010),] and Miller failed to satisfy the PCRA time-bar).




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Miller, 132 S.Ct. at 2469. During the pendency of this appeal, the United

States Supreme Court issued Montgomery v. Louisiana, 136 S.Ct. 718,

735-36 (2016), holding that Miller applies retroactively.

      Shortly   after   Montgomery         was   decided,   this   Court     filed

Commonwealth v. Secreti, --- A.3d ---, 2016 PA Super 28 (Pa. Super.

filed February 9, 2016), which held that Montgomery must be interpreted

“as making retroactivity under Miller effective as of the date of the Miller

decision” so as to “satisfy the ‘has been held’ conditional language

enunciated in Abdul–Salaam, supra.” Secreti, 2016 PA Super 28, at *5.

The Secreti panel further declared that,

      we will use the date of the Montgomery decision solely to
      measure the 60–day rule of Section 9545(b)(2) (requiring
      petitioner asserting timeliness exception to file petition within 60
      days of date claim could have been presented)…. In all other
      respects, Miller remains the lodestar for substantive
      constitutional law on this subject such that the retroactivity
      determination will be deemed to have existed at the time the
      pending petitions were filed. Thus, we harmonize the PCRA
      requirements with Montgomery, Miller, and Abdul–Salaam
      and simultaneously achieve the justice this law was designed to
      promote.

Id. (one citation omitted).

      In light of Miller, Montgomery, and Secreti, it is clear that the

timeliness exception of section 9545(b)(1)(iii) applies to Appellant’s case.

Thus, we have jurisdiction to vacate Appellant’s now illegal, mandatory

LWOP sentence imposed in case 791-1995.          Accordingly, we reverse the

PCRA court’s order in case 791-1995, vacate Appellant’s judgment of



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sentence in that case, and remand for resentencing in accordance with

Montgomery. The PCRA court order issued in case 711-1995 is affirmed.

     Order in 2408 EDA 2015 affirmed. Order in 1864 EDA 2015 reversed.

Judgment of sentence in 1864 EDA 2015 (CP-51-CR-0609791-1995)

vacated. Case remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/16/2016




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