J-S48041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellee              :
                                          :
              v.                          :
                                          :
 GARY JOHNSON                             :
                                          :
                    Appellant             :       No. 3983 EDA 2017


              Appeal from the PCRA Order November 13, 2017
            in the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: CP-51-CR-0233931-1991


BEFORE:    DUBOW, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                          FILED OCTOBER 10, 2018

      Appellant, Gary Johnson, appeals from the order denying his second

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546, as untimely. We affirm.

      We take the factual and procedural background of this case from our

independent review of the limited certified record and the PCRA court’s

January 30, 2018 opinion. On December 10, 1991, at the conclusion of a

waiver trial, the trial court convicted Appellant of murder in the second degree

and conspiracy for his role in the January 20, 1991 murder of the victim after

an altercation in a nightclub.    The same day, the trial court sentenced

Appellant to a term of life imprisonment without parole on the murder

conviction, plus a concurrent sentence of not less than one nor more than two

years’ incarceration for conspiracy. After the court granted Appellant leave to
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* Retired Senior Judge assigned to the Superior Court.
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file an appeal nunc pro tunc, a panel of this Court affirmed the judgment of

sentence on August 19, 1998, and our Supreme Court denied further review

on February 8,1999.

       Appellant filed his first1 pro se PCRA petition in October 1999. Appointed

counsel filed an amended petition on January 17, 2002. Thereafter, the PCRA

court denied the petition.2

       On May 18, 2012, Appellant filed the instant petition for PCRA relief, pro

se. He filed pro se supplemental documents on October 1, 2015, and March

22, 2016. On July 20, 2017, the PCRA court issued Rule 907 notice of its

intent to dismiss Appellant’s petition without a hearing.     See Pa.R.Crim.P.

907(1).     On August 8, 2017, Appellant’s newly retained counsel filed a

response to the Rule 907 notice, seeking court approval for leave to file an

amended PCRA petition to raise a claim pursuant to Miller v. Alabama, 567

U.S. 460 (2012). On November 13, 2017, after review of the response and




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1 “[W]hen a PCRA petitioner’s direct appeal rights are reinstated nunc pro tunc
in his first PCRA petition, a subsequent PCRA petition will be considered a first
PCRA petition for timeliness purposes.” Commonwealth v. Turner, 73 A.3d
1283, 1284 (Pa. Super. 2013), appeal denied, 91 A.3d 162 (Pa. 2014)
(citation and footnote omitted).

2The exact dates on which Appellant filed the petition and the PCRA court
denied it are not apparent in the record.



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application to amend, the court dismissed Appellant’s petition without a

hearing for untimeliness and lack of merit. Appellant timely appealed. 3

       Appellant raises one issue on appeal:      “Should [he] be resentenced

pursuant to Miller[, supra]? (Appellant’s Brief, at 3).

            Our standard of review of an order denying PCRA relief is
       whether the record supports the PCRA court’s determination, and
       whether the PCRA court’s determination is free of legal error. The
       PCRA court’s findings will not be disturbed unless there is no
       support for the findings in the certified record.

Commonwealth v. Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citations

omitted).

       We begin by addressing the timeliness of Appellant’s petition.

              To be timely, a PCRA petition, including a second or
       subsequent petition, must be filed within one year of a judgment
       of sentence becoming final. See 42 Pa.C.S.[A.] § 9545(b)(1).
       This time constraint is jurisdictional in nature, and is not subject
       to tolling or other equitable considerations. The statutory time
       bar implicates the court’s very power to adjudicate a controversy
       and prohibits a court from extending filing periods except as the
       statute permits. Thus, the jurisdictional time bar only can be
       overcome by satisfaction of one of the three statutory exceptions
       codified at 42 Pa.C.S.[A.] § 9545(b)(1)(i)–(iii).         The PCRA
       petitioner bears the burden of proving the applicability of one of
       the exceptions.

Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017) (case citations and

quotation marks omitted).




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3On January 5, 2018, Appellant filed a timely court-ordered concise statement
of errors complained of on appeal. The court filed an opinion on January 30,
2018. See Pa.R.A.P. 1925.

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      Here, Appellant’s judgment of sentence became final on May 10, 1999,

when his time to file a writ of certiorari expired. See 42 Pa.C.S.A. §

9545(b)(3); U.S. Sup. Ct. R. 13. Therefore, Appellant had until May 10, 2000,

to file a timely PCRA petition.    See 42 Pa.C.S.A. § 9545(b)(1).        Because

Appellant filed the instant petition on May 18, 2012, it is untimely on its face,

and the PCRA court lacked jurisdiction to review it unless he pleaded and

proved one of the statutory exceptions to the time-bar. See 42 Pa.C.S.A. §

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

      Section 9545 of the PCRA provides only three limited exceptions that

allow for review of an untimely PCRA petition:

      (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.

Id.

      Any petition invoking an exception must “be filed within [sixty] days of

the date the claim could have been presented.” Id. at § 9545(b)(2). “If the

[PCRA] petition is determined to be untimely, and no exception has been pled

and proven, the petition must be dismissed without a hearing because


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Pennsylvania courts are without jurisdiction to consider the merits of the

petition.” Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa. Super. 2011),

appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted).

       Here, Appellant claims the benefit of the newly recognized and

retroactively applied constitutional right exception at 42 Pa.C.S.A. §

9545(b)(1)(iii), by arguing that his life sentence is unconstitutional pursuant

to Miller, supra, and Montgomery v. Louisiana, 136 S. Ct. 718 (2016).4

(See Appellant’s Brief, at 8-12). Appellant acknowledges that he was eighteen

years, and four months’ old, at the time he committed the murder, but

“objects to the use of an arbitrary and capricious cutoff date of the date of

birth as a basis for a determination of whether or not [he] is entitled to

relief[.]” (Id. at 6, see id. at 4). Appellant’s claim lacks merit.

       This Court recently reaffirmed that “Miller only applies to defendants

who were under the age of [eighteen] at the time of their crimes.”

Commonwealth v. Montgomery, 181 A.3d 359, 366 (Pa. Super. 2018),

appeal denied, 2018 WL 3784694 (Pa. filed Aug. 8, 2018) (citations and

internal quotation marks omitted). Hence, “petitioners who were older than



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4 In Miller, the United States Supreme Court held that it is unconstitutional
for states to sentence juvenile homicide defendants to mandatory sentences
of life imprisonment without the possibility of parole. See Miller, supra at
465. In Montgomery, the United States Supreme Court determined that its
Miller holding constituted a new substantive rule of constitutional law that
must be applied retroactively to cases on collateral review.             See
Montgomery, supra at 736.

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[eighteen] at the time they committed murder are not within the ambit of the

Miller decision and therefore may not rely on that decision to bring

themselves within the time-bar exception in Section 9545(b)(1)(iii).”

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

citation omitted).       Accordingly, Appellant’s argument predicated on an

extension of Miller and Montgomery fails. See id.

       In sum, we conclude Appellant has not met his burden of proving that

his untimely PCRA petition fits within one of the three exceptions to the PCRA’s

time-bar. See Spotz, supra at 678. Accordingly, we affirm the order of the

PCRA court.5

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/18




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5  Moreover, Appellant’s reliance on a decision from Connecticut, (see
Appellant’s Brief, at 9-11), is not legally persuasive, particularly where the
case is unpublished and inconsistent with Pennsylvania jurisprudence. See
Eckman v. Erie Ins. Exchange, 21 A.3d 1203, 1207 (Pa. Super. 2011)
(“[T]his Court is not bound by the decisions of . . . other states’ courts. . . .
[W]e may use them for guidance to the degree we find them . . . not
incompatible with Pennsylvania law.”) (citations omitted).

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