J-S10022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

KENNETH B. DAVENPORT

                            Appellant                     No. 1409 EDA 2014


                 Appeal from the PCRA Order of April 16, 2014
             In the Court of Common Pleas of Montgomery County
               Criminal Division at No: CP-46-CR-0000117-1973


BEFORE: GANTMAN, P.J., STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                                FILED MARCH 17, 2015

        Appellant,   Kenneth     Davenport,    is   serving   four   consecutive   life

sentences for murders he committed in 1973.             He appeals from an order

dismissing his serial PCRA1 petition as untimely. We affirm the PCRA court’s

order and deny his pending applications for relief.

        On March 11, 19732 Appellant, then a Drexel University student,

murdered four members of his family: father Alexander Sr., mother Rowilla,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46.
2
   The record certified to this Court is missing all documents filed prior to
August 12, 2012, except for a copy of this Court’s unpublished memorandum
filed on February 21, 1986. We elect to decide the case on the diminished
record, because the missing documents do not affect our decision. Appellant
has petitioned to correct the record to include his August 2, 2012 PCRA
petition. For purposes of this appeal, we will assume the petition is a part of
(Footnote Continued Next Page)
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16-year-old-brother Edmund, and 13-year-old brother Peter.           Appellant

bludgeoned them to death with a shotgun barrel inside their home in Willow

Grove, Montgomery County. Appellant was charged, indicted, and convicted

of four counts of first-degree murder,3 but the trial court en banc granted a

new trial because of erroneous jury instructions. On retrial, Appellant was

again convicted, and the trial court imposed four consecutive sentences of

mandatory life without parole. Appellant did not appeal. In 1986, this Court

affirmed the denial of Appellant’s first post-conviction relief petition.   See

Commonwealth v. Davenport, 509 A.2d 1319 (Pa. Super. 1986)

(unpublished memorandum), appeal denied, 563 A.2d 886 (Pa. 1987), cert.

denied, 493 U.S. 996 (1989).

      On August 2, 2012, Appellant filed a pro se PCRA petition. Appellant

claims his sentence is illegal under Miller v. Alabama, 132 S. Ct. 2455,

2460 (2012), which holds that persons who were under 18 when they

committed murder cannot receive mandatory sentences of life without

parole. The PCRA court dismissed Appellant’s petition as untimely.


                       _______________________
(Footnote Continued)

the record and was filed on that date. Appellant also asked for an extension
of time to file his brief, a request that is now moot.
3
   The offenses predate the effective date of the Crimes Code, which defines
first-degree murder at 18 Pa.C.S.A. § 2505(a). The governing law is the
Penal Code of 1939, Act of June 24, 1939, P.L. 872, § 701. See, e.g.,
Commonwealth v. Foster, 72 A.2d 279, 290-91 (Pa. 1950) (quoting the
applicable language).



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       On appeal, Appellant argues the PCRA court erred in not addressing

his petition under the state writ of habeas corpus, in not appointing counsel,

and in dismissing his petition as untimely.      We must first address the

timeliness of Appellant’s petition, a question of law. See Commonwealth

v. Callahan, 101 A.3d 118, 121 (Pa. Super. 2014).           Accordingly, “our

standard of review is de novo and our scope of review is plenary.” Id.

       Upon review, we hold the PCRA court correctly dismissed Appellant’s

petition as untimely. First, Appellant cannot meet the one-year PCRA filing

deadline. See 42 Pa.C.S.A. § 9545(b)(1). Appellant was sentenced on April

29, 1977. Because he did not appeal to the Supreme Court, his judgment of

sentence became final on May 31, 1977.4 The PCRA filing deadline passed

one year later—decades before Appellant filed the instant petition.

       Second, Appellant cannot meet his proffered exception to the time bar,

the “new retroactive constitutional right” exception.      See 42 Pa.C.S.A.

§ 9545(b)(1)(iii).     Miller does not apply to Appellant, because he freely

admits he was 18 years old when he committed the murders.                See

____________________________________________


4
  Until 1980, our Supreme Court had jurisdiction over direct appeals in all
murders cases. Appellate Court Jurisdiction Act of 1970, Act of July 31,
1970, P.L. 673, No. 223 § 202(1) (formerly codified at 42 Pa.C.S.A.
§ 722(1), and deleted by the Act of Sept. 23, 1980, P.L. 686, No. 137 § 1).

Appellant had 30 days from imposition of sentence to appeal, or May 31,
1977. May 29, 1977 was a Sunday, and May 30 was Memorial Day. See 1
Pa.C.S.A. § 1908 (excluding Sundays and legal holidays from computation of
time).



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Defendant’s Amended Supplemental Statement of Jurisdiction Concerning

His Recently Filed Petition for Post Conviction Relief (PCRA), 10/31/12, ¶ 2.5

We recently rejected such an attempt to expand Miller’s holding to persons

18 and older.      See Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa.

Super. 2013).      Moreover, Miller does not apply retroactively to cases on

collateral review.     Commonwealth v. Cunningham, 81 A.3d 1, 11 (Pa.

2013); Commonwealth v. Sesky, 86 A.3d 237, 243 (Pa. Super. 2014).

Any new constitutional right must have been held to be retroactive before a

PCRA petition invoking § 9545(b)(1)(iii) is filed—not after. Sesky, 86 A.3d

at 243.6

       Appellant’s remaining assignments of error are meritless.   The PCRA

court properly rejected Appellant’s attempt to circumvent the PCRA by


____________________________________________


5
   To this filing, Appellant attached a partial copy of his presentence
investigation report dated February 9, 1977. The report lists Appellant’s
date of birth as November 3, 1954, meaning that he turned 18 in 1972, i.e.,
before committing the murders.
6
  The Supreme Court of the United States has never held Miller to be
globally retroactive.    Indeed, it denied certiorari on the question in
Cunningham. See Pennsylvania v. Cunningham, 134 S. Ct. 2724
(2014). The High Court recently granted certiorari to consider Miller’s
retroactivity, but it appears that the grant was limited to the facts of that
specific case, and, in any event, the Court has now dismissed the case. See
Toca v. Louisiana, No. 14-6381, 135 S. Ct. 781 (2014) (“Does the rule
announced in [Miller] apply retroactively to this case?”) (emphasis added),
cert. dismissed, 2015 WL 507612 (U.S. Feb. 3, 2015). We therefore deny
Appellant’s application for post-submission communication, in which he
requested we hold his case for a decision in Toca.



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styling his petition a “habeas petition.”   The PCRA subsumes all forms of

post-conviction relief, including the writ of habeas corpus when used to

obtain post-conviction relief.    42 Pa.C.S.A. § 9542; Commonwealth v.

Taylor, 65 A.3d 462, 466 (Pa. Super. 2013) (“[A] defendant cannot escape

the PCRA time-bar by titling his petition or motion as a writ of habeas

corpus.”). Further, the PCRA court did not err in denying Appellant’s request

for appointment of counsel. The right to PCRA counsel exists only for a first

PCRA petition. Pa.R.Crim.P. 904(C). This proceeding is Appellant’s second

post-conviction petition.

      For the foregoing reasons, we affirm the order dismissing Appellant’s

PCRA petition as untimely. We deny Appellant’s application for an extension

of time to file brief and to correct the record, and application for post-

submission communication. See supra, footnotes 2 and 6.

      Order affirmed. Motion for an Enlargement of Time to File a Brief and

Correction   of   the   Record   denied.    Application   for   Post-Submission

Communication denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/17/2015




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