J-S06025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARK CANTY                                 :
                                               :
                       Appellant               :   No. 971 EDA 2018

                 Appeal from the PCRA Order January 25, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0208661-1996


BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                                   FILED MAY 03, 2019

       Appellant, Mark Canty, appeals from the January 25, 2018 Order

entered in the Philadelphia Court of Common Pleas dismissing as untimely his

first Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. After careful review, we affirm.

       On October 30, 1996, a jury found Appellant guilty of Second-Degree

Murder, Conspiracy, and Robbery, for the shooting death of Police Officer

Lauretha Vaird during a gunpoint robbery of a bank.1 On December 17, 1996,

the trial court imposed a sentence of life imprisonment without the possibility

of parole. Appellant filed a direct appeal, but on July 24, 1997, this Court

dismissed Appellant’s appeal for failure to file a brief. Appellant’s Judgment

of Sentence, therefore, became final on July 24, 1997, at the conclusion of
____________________________________________


1 Appellant was born on March 17, 1973, and was 22 years old when he
committed the crimes.
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direct review. See 42 Pa.C.S. § 9545(b)(1); Commonwealth v. Alcorn, 703

A.2d 1054, 1056 (Pa. Super. 1997) (determining that judgment of sentence

became final on the date that this Court dismissed the appellant’s direct appeal

for failure to file a brief and the appellant failed to seek further review with

higher courts).

       On March 25, 2016, more than eighteen years after his Judgment of

Sentence became final, Appellant filed the instant pro se PCRA Petition, his

first, raising a claim that his sentence is illegal under Miller v. Alabama, 567

U.S. 460 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016).2

PCRA Petition, 3/25/16, at 3-4, 8. The PCRA court appointed counsel, who

filed an Amended PCRA Petition on September 7, 2017, advancing the same

claim and arguing that Appellant was under the age of 25 when he committed

the crime and “was operating with reduced brain function or resources given

his age[.]” Amended PCRA Petition, 9/7/17, at 2-3. On December 12, 2017,

the PCRA court issued a Pa.R.Crim.P. 907 Notice advising Appellant of its

intent to dismiss his Petition without a hearing as untimely. Despite being

represented by counsel, on December 29, 2017, Appellant filed a pro se


____________________________________________


2 In Miller, the U.S. Supreme Court held that it is unconstitutional for state
courts to impose an automatic life sentence without possibility of parole upon
a homicide defendant for a murder committed while the defendant was under
eighteen years old. Miller, 567 U.S. at 470. In Montgomery, the U.S.
Supreme Court held that its decision in Miller, supra, applies retroactively.
Montgomery, 136 S.Ct. at 732, 736.




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Response; Appellant’s counsel did not file a counseled Response.3 On January

25, 2018, the PCRA court dismissed Appellant’s Petition as untimely. This

timely appeal followed.4

       Appellant raises the following issue on appeal: “Did the Honorable PCRA

Court err when it denied [Appellant] relief on his PCRA Petition without

conducting an evidentiary hearing?” Appellant’s Brief at 3.

       We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its Order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This

Court grants great deference to the findings of the PCRA court if they are

supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.

Super. 2007).      We give no such deference, however, to the court’s legal

conclusions.     Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.

2012).


____________________________________________


3 Because counsel represented Appellant, this pro se filing was a legal nullity.
See Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016)
(explaining that generally hybrid representation is not permitted in
Pennsylvania and pro se motions filed when a petitioner is represented by
counsel are legal nullities).

4 On February 21, 2018, Appellant filed a pro se Notice of Appeal, which this
court is required to docket despite the fact that Appellant is represented by
counsel. See Williams, 151 A.3d at 624 (holding that, unlike other filings,
because a notice of appeal protects a constitutional right this Court is required
to docket a pro se notice of appeal despite an appellant being represented
by counsel). The trial court did not order a Pa.R.A.P 1925(b) Statement. The
trial court issued a Pa.R.A.P. 1925(a) Opinion. Appellant filed a counseled
Brief on October 12, 2018.

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       In order to obtain relief under the PCRA, a petition must be timely filed.

See 42 Pa.C.S. § 9545 (providing jurisdictional requirements for the timely

filing of a petition for post-conviction relief). A petition must be filed within

one year from the date the judgment of sentence became final. 42 Pa.C.S. §

9545(b)(1).     Appellant’s Petition, filed more than eighteen years after his

Judgment of Sentence became final, is facially untimely.

       Pennsylvania courts may consider an untimely PCRA petition, however,

if an appellant pleads and proves one of the three exceptions set forth in

Section 9545(b)(1). Any petition invoking a timeliness exception must be filed

within 60 days of the date the claim could have been presented. 42 Pa.C.S §

9545(b)(2).5

       Here, Appellant attempts to invoke the timeliness exception under

Section 9545(b)(1)(iii), alleging that his sentence is illegal based on a newly

recognized constitutional right under Miller, which, he argues, is retroactive

in its application pursuant to Montgomery. See Appellant’s Brief at 6; 42

Pa.C.S. § 9545(b)(1)(iii).

       As long as this court has jurisdiction over the matter, a legality of

sentence issue is reviewable and cannot be waived.         Commonwealth v.

Jones, 932 A.2d 179, 182 (Pa. Super. 2007).             However, a legality of


____________________________________________


5 Effective December 24, 2018, Section 9545(b)(2) now provides that for
claims arising on or after December 24, 2017, “[a]ny petition invoking an
exception . . . shall be filed within one year of the date the claim could have
been presented.”

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sentencing issue must be raised in a timely filed PCRA Petition over which we

have jurisdiction. See 42 Pa.C.S. § 9545(b); Commonwealth v. Fahy, 737

A.2d 214, 223 (Pa. 1999) (“Although legality of sentence is always subject to

review within the PCRA, claims must still first satisfy the PCRA’s time limits or

one of the exceptions thereto.”).

      Appellant filed the instant PCRA Petition on March 25, 2016, which was

within 60 days of the issuance of the Montgomery decision (decided January

25, 2016).

      Nevertheless, Appellant’s Miller claim fails. Appellant correctly asserts

that the holding in Montgomery is that the rule announced in Miller, supra,

is substantive for purposes of retroactivity. However, because Appellant was

22 years old at the time he committed the murder, Miller is inapplicable. See

Commonwealth v. Lawson, 90 A.3d 1, 6 (Pa. Super. 2014) (stating that the

holding in Miller is limited to those offenders who were juveniles at the time

they committed their crimes). Further, an en banc panel of this Court has

recently refused to render relief on the brain science argument that Appellant

raises in his Amended PCRA Petition and again in his Brief.                 See

Commonwealth v. Lee, ___ A.3d ___, 2019 PA Super 64, *5-8 (filed March

1, 2019) (en banc) (holding that appellant, who was over 18 years of age at

the time of her offense, could not invoke Miller as an exception to the PCRA

time-bar, despite her argument that “immature brain” studies would have

established that her brain was underdeveloped at time of her crime). See


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also Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016)

(rejecting the 19-year-old appellant’s argument based on neuroscientific

theories of brain development that he is entitled to PCRA relief because he

was a “technical juvenile” at the time he committed his crimes).

      In conclusion, Appellant failed to plead and prove any of the timeliness

exceptions provided in 42 Pa.C.S. § 9545(b)(1), and the PCRA court properly

dismissed Appellant’s Petition as untimely.     The record supports the PCRA

court’s findings and its Order is free of legal error. We, thus, affirm the denial

of PCRA relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/19




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