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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
DEREK A. MABINE,                         :         No. 1009 EDA 2018
                                         :
                         Appellant       :


                Appeal from the PCRA Order, February 28, 2018,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-1121271-1990


BEFORE: OLSON, J., STABILE, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED OCTOBER 23, 2018

        Derek A. Mabine appeals pro se from the February 28, 2018 order

dismissing his third petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, as untimely. After careful review, we

affirm.

        A prior panel of this court summarized the relevant facts and

procedural history of this case as follows:

              On April 16, 1991, a jury convicted [appellant] of
              first-degree murder and possession of an instrument
              of crime[1] [in connection with the May 3, 1990
              shooting death of Wayne Hill]. On September 25,
              1991, [appellant] was sentenced to an aggregate
              term of life imprisonment. This Court affirmed the
              judgment     of   sentence  on    July   6,   1992.
              Commonwealth v. Mabine, 616 A.2d 716
              (Pa.Super. 1992) (unpublished memorandum).

1   18 Pa.C.S.A. §§ 2502 and 907, respectively.
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            [Appellant] did not seek allocatur          with   the
            Pennsylvania Supreme Court.

            [Appellant] filed his first [PCRA] petition on
            January 16, 1997.       Counsel was appointed to
            represent [appellant], and an amended petition was
            filed on his behalf.    The Commonwealth filed a
            motion to dismiss, and the PCRA court dismissed the
            petition on May 20, 1998. This Court affirmed the
            decision on July 21, 1999, and the Pennsylvania
            Supreme Court denied allowance of appeal on
            January 13, 2000. Commonwealth v. Mabine, 742
            A.2d 1147 (Pa.Super. 1999), appeal denied, [] 749
            A.2d 468 ([Pa. ]2000).

Commonwealth v. Mabine, 813 A.2d 905 (Pa.Super. 2002) (unpublished

memorandum at 1-2).

      Appellant filed his second PCRA petition pro se on November 20,

2000, which was dismissed by the PCRA court on June 5, 2001.               On

September 4, 2002, a panel of this court affirmed the PCRA court’s order,

and appellant did not file a petition for allowance of appeal with our supreme

court. See id. Appellant filed the instant pro se PCRA petition, his third, on

August 22, 2012. Thereafter, on February 2, 2018, the PCRA court provided

appellant with notice of its intention to dismiss his petition without a

hearing, pursuant to Pa.R.Crim.P. 907(1).2 Appellant did not file a response

to the PCRA court’s Rule 907 notice. On February 28, 2018, the PCRA court

filed an order and opinion dismissing appellant’s petition as untimely. This




2It is unclear from the docket as to why no action was taken on appellant’s
petition for over five years.


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timely appeal followed.     The PCRA court did not order appellant to file a

concise statement of errors complained of on appeal in accordance with

Pa.R.A.P. 1925(b).

      Appellant raises the following issues for our review:

            A.     Whether the [PCRA] court erred and made a
                   “contrary to” ruling when it declared that the
                   Miller v. Alabama[,] 567 U.S. 460 (2012)[,]
                   holding “specifically” limited itself to juveniles
                   under the age of 18 at the time of the offense?

            B.     Whether the [PCRA] court erred when it
                   declared that the petitioner did not invoke nor
                   plead    an     exception     enumerated     in
                   [Section] 9545(b)(1)(iii)?

            C.     Whether the [PCRA] court erred in not
                   appointing counsel to frame and file this appeal
                   to the Pa. Superior Court, after [appellant] was
                   indigent and placed into the mental health
                   facility at Mahanoy?

            D.     Whether the mentally-illed [sic] [appellant]
                   “Derek Mabine” should be allowed pursuant to
                   Commonwealth v. Burton, [158 A.3d 618
                   (Pa. 2017),] to rely on the whole case
                   authority of Cruz v. United States[,] 2018
                   WL 1541898 [(D. Conn. 2018)], and. its
                   contents referring to expert testimony by
                   Dr. Laurence Steinberg, whereas the public
                   articles and exhibits by Dr. Steinberg and other
                   studies are not available in the mental health[]
                   facility[’s] law library?

Appellant’s brief at 4 (full capitalization omitted).3




3 For the ease of our discussion, we have elected to address appellant’s
claims in a different order than presented in his appellate brief.


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         Preliminarily, we must first consider the timeliness of appellant’s PCRA

petition because it implicates the jurisdiction of this court and the PCRA

court.     Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014)

(citation omitted). It is well settled that all PCRA petitions, including second

and subsequent petitions, must be filed within one year of when a

defendant’s judgment of sentence becomes final.                 See 42 Pa.C.S.A.

§ 9545(b)(1).        Here, appellant’s judgment of sentence became final on

August 5, 1992, 30 days after this court affirmed appellant’s judgment of

sentence and the time-frame for filing a petition for allowance of appeal with

our supreme court expired.         See 42 Pa.C.S.A. § 9545(b)(3) (providing “a

judgment becomes final at the conclusion of direct review, including

discretionary review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review”). Accordingly, in order to be timely, appellant had to file his petition

by August 5, 1993. Appellant’s instant petition, filed on August 22, 2012, is

patently untimely. As a result, the PCRA court lacked jurisdiction to review

appellant’s petition, unless appellant alleged and proved one of the statutory

exceptions to the time-bar, as set forth in Section 9545(b)(1).

         To invoke an exception under Section 9545(b)(1), a petitioner must

allege and prove:

               (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


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                        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.A. § 9545(b)(1)(i)-(iii).

         Instantly, the record reveals that appellant failed to prove any of the

statutory exceptions to the PCRA time-bar. The crux of appellant’s first two

claims is that his sentence of life imprisonment is unconstitutional in light of

the United States Supreme Court’s decisions in Miller and Montgomery v.

Louisiana, 136 S.Ct. 718 (2016).              (Appellant’s brief at 8-9, 12-13.)    In

Miller, the Supreme Court recognized a constitutional right for juveniles,

holding that “mandatory life without parole for those under the age of 18 at

the time of their crimes violates the Eighth Amendment’s prohibition against

‘cruel    and    unusual     punishments.’”      Miller,   567   U.S.   at   465.   In

Montgomery, the Supreme Court recently held that its rule announced in

Miller applies retroactively on collateral review.         Montgomery, 136 S.Ct.

at 736.

         This court has repeatedly recognized that Miller and its progeny do

not create a newly recognized constitutional right for petitioners who were


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over the age of 18 at the time they committed their crimes.              See

Commonwealth v. Furgess, 149 A.3d 90, 92-93 (Pa.Super. 2016) (holding

that an appellant’s assertion of the time-bar exception set forth in

Section 9545(b)(1)(iii) must be rejected because the constitutional rule

rendering the mandatory sentences of life imprisonment without possibility

of parole on juveniles unconstitutional applied only to those defendants who

were under 18 when offenses were committed).

      Here, appellant acknowledges that he was over 18 years of age4 on

the date he shot Wayne Hill, but posits that Miller and Montgomery are

applicable because his “brain definitely was not developed or matured” at

the time of this crime.     (Appellant’s brief at 10-11.)     This court has

repeatedly rejected similar arguments invoking Section 9545(b)(1)(iii) in this

manner.   In Commonwealth v. Montgomery, 181 A.3d 359 (Pa.Super.

2018), an en banc panel of this court recently stated as follows:

            This Court noted that Miller only applies to
            defendants who were “under the age of 18 at the
            time of their crimes.” [Furgess, 149 A.3d] at 94,
            quoting Miller, 567 U.S. at 465[.] Moreover, as
            this Court noted in Furgess, Appellant’s argument
            attempts to extend Miller to those adults whose
            brains were not fully developed at the time of their
            offense.   See Furgess, 149 A.3d at 94.         This
            argument fails, however, because “a contention that

4 Appellant avers in his pro se PCRA petition that he was 24 years old at the
time of the crime, but states in his appellate brief that he was only 19 years
old. (See PCRA petition, 8/22/12 at 1; appellant’s brief at 10.) The certified
record, however, indicates that appellant was born in November 1969, which
would make him 20 years old at the time of the crime. (See criminal
complaint/arrest report, 5/7/90.)


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           a newly-recognized constitutional right should be
           extended to others does not [satisfy the new
           constitutional rule exception to the PCRA’s timeliness
           requirement.]”      Id. at 95 (internal alteration
           omitted; emphasis removed)[.]

           Instead, the PCRA requires that the Supreme Court
           of the United States or our Supreme Court extend
           the new right to a class of individuals, and make the
           extension retroactive, in order to satisfy the new
           constitutional    right      timeliness     exception.
           42 Pa.C.S.A. § 9545(b)(1)(iii). Montgomery merely
           made Miller retroactive for juvenile offenders whose
           judgments of sentence had already become final. It
           did not extend Miller’s holding to those individuals
           who committed homicides after they reached the age
           of 18. Furgess, 149 A.3d at 95.

Montgomery, 181 A.3d at 366 (some citations omitted; bracketed text in

original.) Based on the forgoing, Miller and Montgomery are inapplicable.

     Appellant also argues that his sentence of life imprisonment is

unconstitutional in light of Cruz v. United States, 2018 WL 1541898

(D.Conn. 2018), wherein the United States District Court for the District of

Connecticut held in a habeas proceeding that the protections of Miller apply

to offenders aged 18 at the time of their offense. Cruz, 2018 WL 1541898,

at *25.   (See appellant’s brief at 14-16.)     In Cruz, the defendant was

18 years and 20 weeks old at the time of his crime.         Cruz, 2018 WL

1541898, at *1.    We find appellant’s reliance on this case, which was

decided by a federal trial court, unavailing.   Although this court recently

certified for en banc review a case involving the application of Miller to a

defendant who was 18 years and 9 months old at the time of his crime,



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there is presently no controlling authority in this Commonwealth that has

extended the protections of Miller to defendants who are 18 years of age or

older.        See    Commonwealth        v.   Lee,   No.      1891   WDA      2016,

2017 WL 6629309 (Pa.Super. 2017) (non-precedential opinion withdrawn

per court order dated March 9, 2018).

         Lastly, appellant argues that the PCRA court erred in failing to appoint

counsel to assist him in appealing the PCRA’s court order denying the instant

PCRA petition, his third.     (Appellant’s brief at 13-14.)    We disagree.    Our

review of the certified record reveals that counsel was appointed to

represent appellant during the pendency of his first PCRA petition. There is

no automatic right to appointed counsel on second or subsequent PCRA

petitions.    See Commonwealth v. Vega, 754 A.2d 714, 719 (Pa.Super.

2000) (stating, “although a first-time PCRA petitioner is entitled to

appointment of counsel, there is no such entitlement on second and

subsequent petitions[.]”(citation omitted)).      Accordingly, appellant is not

entitled to relief on this claim.

         Based on the foregoing, we discern no error on the part of the PCRA

court in dismissing appellant’s third PCRA petition as untimely.

         Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/23/18




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