J-S75020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LAMAR FELIX                                :
                                               :
                       Appellant               :   No. 3872 EDA 2017

                 Appeal from the PCRA Order October 25, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-1205341-1995


BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY NICHOLS, J.:                          FILED DECEMBER 19, 2018

       Appellant Lamar Felix appeals from the order dismissing his fifth petition

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

Appellant asserts that the PCRA court erred by dismissing his petition as

untimely where he pled guilty to a lesser offense to avoid the sentencing

scheme deemed to be unconstitutional in Miller v. Alabama.1 We affirm.

       The PCRA court summarized the relevant factual and procedural

background of this matter as follows:

       On March 30, 1995, [Appellant] was arrested after taking part in
       an attempted robbery that led to the shooting and death of
       Frederick Minford.   At the time the crime was committed,
       [Appellant] was 17 years old. On November 10, 1997, [Appellant]
       pleaded guilty to third-degree murder, aggravated assault,
____________________________________________


1 Miller v. Alabama, 567 U.S. 460 (2012). In Miller, the United States
Supreme Court held that a sentencing scheme that mandates life in prison
without possibility of parole for juvenile homicide offenders is forbidden by the
Eighth Amendment. See Miller, 567 U.S. at 470.
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       burglary, criminal conspiracy and possession of an instrument of
       crime.   He was sentenced on December 15, 1997, to [an
       aggregate] term of 35 to 70 years of incarceration and never
       sought appeal.

       On March []4, 1999, [Appellant] filed a pro se PCRA petition which
       was subsequently dismissed. [Appellant] never appealed. On
       January 21, 2003, [Appellant] again filed a pro se PCRA petition.
       After being appointed counsel, [Appellant’s] petition was
       dismissed for lack of merit. Again, no appeal was taken. On
       August 4, 2004, [Appellant] filed his third PCRA petition and
       counsel was again appointed. The court dismissed this petition as
       untimely and the Superior Court affirmed the lower court’s
       decision on December 19, 2006. [Appellant did not file a petition
       for allowance of appeal in the Pennsylvania Supreme Court.]

       On [August] 12, 2013, [Appellant] again filed a pro se PCRA
       petition. On October 15, 2013, [Appellant] filed an amended
       petition claiming relief pursuant to the ruling in Miller[.] That
       petition was dismissed as untimely on July 28, 2015. [Appellant]
       filed an appeal on August 17, 2015, asserting that his sentence
       was illegal under Alleyne v. United States, 133 S. Ct. 2151
       (2013).[2] The Superior Court affirmed the PCRA court’s dismissal
       on July 5, 2016[,] on several grounds. The Superior Court
       reasoned that Alleyne did not apply retroactively, that Miller,
       even in light of the Supreme Court’s ruling in Montgomery v.
       Louisiana, 136 S. Ct. 718 (2016),[3] was inapplicable to
       [Appellant] because he had waived his claim and because Miller
       only applied to juvenile offenders who were given mandatory life
       sentences without parole, which [Appellant] was not. [Appellant
       did not file a petition for allowance of appeal in the Pennsylvania
       Supreme Court.]

       On October 3, 2016, defense counsel filed the current PCRA
       petition asserting an exception to the PCRA’s time-bar as a result
       of the new constitutional right announced in Miller.            A
____________________________________________


2 Alleyne held that any fact that increases a mandatory minimum sentence
for a crime is an element of the crime that must be submitted to the jury to
be determined beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2163.

3 In Montgomery, the United States Supreme Court held that “Miller
announced a substantive rule that is retroactive in cases on collateral review.”
Montgomery, 136 S. Ct. at 732.

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      [Pa.R.Crim.P.] 907 notice informing [Appellant] that his petition
      would be dismissed in 20 days was sent to counsel on July 5,
      2017. An amended petition was filed on July 24, 2017, along with
      [Appellant’s’] response to th[e c]ourt’s [Rule] 907 notice.

      After review of counsel’s PCRA petition, his amended petition and
      counsel’s response to the court’s [Rule] 907 notice, th[e c]ourt
      dismissed Appellant’s petition as untimely and without merit. On
      November 22, 2017, [Appellant] timely appealed the dismissal to
      the Superior Court.

PCRA Ct. Op., 1/24/18, at 1-3 (citations omitted). Appellant filed a timely

court-ordered concise statement of matters complained of on appeal under

Pa.R.A.P. 1925(b).    The PCRA court filed an opinion pursuant to Pa.R.A.P.

1925(a).

      In its Rule 1925(a) opinion, the PCRA court noted that

      [i]n an attempt to satisfy an exception to the time-bar, [Appellant]
      asserted that the new constitutional right announced in Miller
      applied to him. However, [Appellant] failed to prove that Miller
      included juveniles, such as [Appellant], who were not given
      mandatory life sentences. [Appellant] was not sentenced to
      mandatory life without parole but instead was sentenced to a term
      of 35 to 70 years pursuant to a guilty plea. As a result, [Appellant]
      is beyond the reach of the Supreme Court’s decision in Miller.

Trial Ct. Op., 1/24/18, at 5.

      Appellant raises the following question for our review:

      Does the constitutional right announced in Miller v. Alabama
      protect a defendant from a sentencing scheme that mandated a
      life without parole sentence, even where the defendant was a child
      at the time of the offense, and provide relief to a defendant who
      pleaded guilty to a lesser offense to avoid that unconstitutional
      sentencing scheme?

Appellant’s Brief at 2.

      Appellant asserts that



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      the constitutional right announced in Miller . . . should have
      protected him against an unconstitutional sentencing scheme.
      Although he was not sentenced to life imprisonment without
      parole, the specter of the unconstitutional sentencing scheme
      impacted him just the same when he pleaded guilty to lesser
      charges in order to avoid it and received a sentence that exceeds
      the current mandatory minimum sentence for second degree
      murder by five years.

Id. at 9 (citing 18 Pa.C.S. § 1102.1(c)). Appellant states that “he decided to

plead guilty to avoid Pennsylvania’s version of the sentencing scheme

invalidated by Miller. The PCRA [c]ourt had jurisdiction because [Appellant]

filed his petition within 60 days of when he first could have asserted it.” Id.

at 7. Further, Appellant argues that “[p]ublic policy and fundamental fairness

require that [Appellant] be given the opportunity for the type of individualized

sentencing hearing described in Miller v. Alabama and its progeny.” Id.

      In considering the denial of a PCRA petition, our standard of review

      is limited to examining whether the evidence of record supports
      the court’s determination and whether its decision is free of legal
      error. This Court grants great deference to the findings of the
      PCRA court if the record contains any support for those
      findings. We give no such deference, however, to the court's legal
      conclusions.

      Initially, we examine whether Appellant timely filed his current
      PCRA petition. Pennsylvania law makes clear no court has
      jurisdiction to hear an untimely PCRA petition. The most recent
      amendments to the PCRA, effective January 16, 1996, provide
      that a PCRA petition, including a second or subsequent petition,
      shall be filed within one year of the date the underlying judgment
      becomes final. A judgment is deemed 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.” 42 Pa.C.S.A. §
      9545(b)(3).




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Commonwealth v. Secreti, 134 A.3d 77, 79-80 (Pa. Super. 2016) (some

citations omitted).

      The PCRA provides for three statutory exceptions to its timeliness

requirements, which apply in limited circumstances as set forth in 42 Pa.C.S.

§ 9545(b)(1). Id. at 80. The exceptions include the following:

      (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). A petitioner arguing a timeliness exception

must file a PCRA petition within sixty days of the date the claim could have

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

      As such, when a PCRA petition is not filed within one year of the
      expiration of direct review, or not eligible for one of the three
      limited exceptions, or entitled to one of the exceptions, but not
      filed within 60 days of the date that the claim could have been
      first brought, the trial court has no power to address the
      substantive merits of a petitioner’s PCRA claims.

Secreti, 134 A.3d at 80 (citation omitted).

      Here, Appellant’s current PCRA petition was untimely on its face.

Appellant has pled that the exception in Section 9545(b)(1)(iii) regarding a

newly recognized constitutional right applies to his case on the basis of the



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holdings in Miller and Montgomery.         However, Miller and Montgomery

provide that a mandatory life sentence without parole is unconstitutional for

juveniles and that this rule applies retroactively. See Montgomery, 136 S.

Ct. at 732; Miller, 567 U.S. at 470. Significantly, neither case stands for the

proposition that a juvenile who has pled guilty to a term of years in a homicide

case has received an unconstitutional sentence. Indeed, Appellant points to

no authority providing that a juvenile’s negotiated guilty plea to a term of

years is an unconstitutional or otherwise illegal sentence, and we are aware

of none.

      Accordingly, we agree with the PCRA court that Appellant does not meet

the timeliness exception in Section 9545(b)(1)(iii) regarding a newly

recognized constitutional right.   See PCRA Ct. Op., 1/24/18, at 5; accord

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

that “petitioners who were older than 18 at the time they committed murder

are not within the ambit of the Miller decision”). Thus, the PCRA court was

without power to address Appellant’s claim, and we discern no error in the

PCRA court dismissing Appellant’s PCRA petition as untimely. See Secreti,

134 A.3d at 79-80.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/18




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