J-S26044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 DONALD REEL                               :
                                           :
                    Appellant              :   No. 2484 EDA 2017

                  Appeal from the PCRA Order July 12, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0819632-1976


BEFORE:    BENDER, P.J.E., BOWES, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                        FILED AUGUST 03, 2018

      Appellant,   Donald   Reel,   was   convicted   of   first-degree   murder,

aggravated assault, simple assault, and firearms offenses in 1977.           He is

serving a mandatory term of life imprisonment without parole.             Here, he

appeals, pro se, from the order entered in the Court of Common Pleas of

Philadelphia County dismissing his serial petition filed under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We

affirm.

      The PCRA court’s Opinion filed on August 9, 2017, sets forth the full

procedural history of the case sub judice such that we need not repeat it for

purposes of our review. Suffice it to say Appellant has appealed from the

PCRA court’s denial of his fifth PCRA petition and asserts that he qualifies for

a “newly recognized constitutional right” exception to the PCRA’s timeliness

provision at Section 9545(b)(1)(iii), as explained more fully below.

____________________________________
* Former Justice specially assigned to the Superior Court.
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      The timing of a PCRA petition “is a threshold question implicating our

subject matter jurisdiction and ability to grant the requested relief.”

Commonwealth v. Whitney, 817 A.2d 473, 478 (Pa. 2003) (citations

omitted). A petition must be filed within one year of the date the judgment is

final unless the petition alleges, and the petitioner proves, an exception to the

timeliness requirement. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      A petition invoking one of these statutory exceptions “shall be filed

within 60 days of the date the claim could have been presented[,]” 42

Pa.C.S.A. § 9545(b)(2), and exceptions to the PCRA's time bar must be pled

in the petition, see Commonwealth v. Burton, 936 A.2d 521, 525

(Pa.Super. 2007).      Notably, “[a] contention that a newly-recognized

constitutional right should be extended to others does not render [a] petition

[seeking such an expansion of the right] timely pursuant to section

9545(b)(1)(iii).” Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.Super.

2016) (citation omitted; brackets in original; emphasis in original).

      Appellant’s judgment of sentence became final on or about May 28,

1981, ninety days after the Pennsylvania Supreme Court affirmed his

judgments of sentence in Commonwealth v. Reel, 425 A.2d 739 (Pa. 1981)

(per curiam). See 42 Pa.C.S.A. § 9545(b)(3) (“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”). Therefore, this petition, his fifth,




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filed over thirty years later on June 29, 2012, and incorporating two amended

petitions, is patently untimely.

      Appellant     argues   his   petition    qualifies    for   a   newly-recognized

constitutional right exception set forth in § 9545(b)(1)(iii). Specifically, he

alleges the United States Supreme Court decision in Miller v. Alabama, 567

U.S. 460, 132 S.Ct. 2455, 183 L.Ed. 2d. 407 (2012), holding that “mandatory

life without parole for those under the age of 18 at the time of their crimes

violated   the    Eighth   Amendment’s        prohibition   on    cruel   and   unusual

punishment[,]” Id., ---- U.S. at ----, 132 S. Ct. at 2469, ---- L.Ed. 2d at ----,

provides him with a basis for relief.

      Appellant evokes this newly-recognized constitutional right exception

through Montgomery v. Louisiana, ––– U.S. at ––––, 136 S.Ct. at 736, 193

L.Ed.2d at ––––. In Montgomery, the United States Supreme Court declared

its prior holding in Miller constitutes a substantive rule of constitutional law

to which state collateral review courts were required as a constitutional matter

to give retroactive effect. Montgomery, ––– U.S. at ––––, 136 S.Ct. at 736,

193 L.Ed.2d at ––––. The Supreme Court held therein that the new rule of

law announced in Miller applies retroactively to cases on collateral review.

      The United States Supreme Court decided Montgomery on January 25,

2016, and Appellant filed his amended petition on March 25, 2016.                    In

Commonwealth v. Secreti, 134 A.3d 77, 82 (Pa.Super. 2016), this Court

held that the date upon which Montgomery had been decided is to be used

when calculating whether a petition is timely filed under the sixty-day rule of

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42 Pa.C.S.A. § 9545(b)(2). Because Appellant's PCRA petition was filed on

March 25, 2016, he has satisfied the PCRA time-bar. See 42 Pa.C.S.A. §

9545(b)(2). Notwithstanding, Miller does not apply to his case.

        While the Supreme Court’s holding in Miller set forth a bright-line rule

prohibiting the imposition of such mandatory life sentences on juvenile

offenders, it did not prevent a trial court from imposing such a sentence upon

an individual such as Appellant who was over the age of eighteen at the time

he committed murder.1 Therefore, the right recognized by Miller and held to

be retroactive in Montgomery does not provide Appellant a basis for relief

from the PCRA time-bar. See Miller, ––– U.S. at ––––, 132 S. Ct. at 2469,

––– L.Ed.2d at –––– (holding “the Eighth Amendment forbids a sentencing

scheme that mandates life in prison without possibility of parole for juvenile

offenders.”) See also Commonwealth v. Cintora, 69 A.3d 759, 764

(Pa.Super. 2013) (holding Miller is not an exception under Section

9545(b)(1)(iii) to those over the age of eighteen at the time crimes were

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

(holding the Miller decision applies only to defendants “under the age of 18

at the time of their crimes”).

        Additionally, Appellant attempts to defeat the PCRA time-bar by alleging

an exception pursuant to Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376,

182 L.Ed. 2d 398 (2012), in which the United States Supreme Court held a

____________________________________________


1   Appellant was 18 years, 11 months’ old at the time he committed murder.

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defendant's Sixth Amendment right to counsel requires effective assistance of

counsel at all crucial stages of a criminal proceeding, id. at 1384–85, and its

companion case Missouri v. Frye, 566 U.S. 134, 132 S.Ct. 1399, 182 L.Ed.2d

379 (2012).      This Court emphasized, however, in Commonwealth v.

Feliciano, 69 A.3d 1270, 1277 (Pa.Super. 2013) that Lafler did not create a

new constitutional right.     Indeed, we reiterated in Commonwealth v.

Hernandez, 79 A.3d 649, 654 (Pa.Super. 2013) that neither Lafler nor Frye

established a newly-recognized constitutional right that would provide an

appellant with an exception to the PCRA timeliness requirements. See also

Commonwealth v. Wharton, 584 Pa. 576, 588, 886 A.2d 1120, 1127

(2005); Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa.Super. 2007)

(allegations of counsel's ineffectiveness will not overcome the jurisdictional

timeliness requirements of the PCRA). Furthermore, to the extent Appellant

invokes Lafler and Frye simply as an alternate means by which to achieve

merits review of his Miller claim, we reiterate Miller is inapplicable to his

case.

        As Appellant has failed to plead and prove one of the exceptions to the

PCRA time-bar, the courts of this Commonwealth are without jurisdiction to

offer him any relief.     Commonwealth v. Jackson, 30 A.3d 516, 523

(Pa.Super. 2011). Accordingly, the PCRA court properly denied Appellant's

patently untimely PCRA petition without a hearing.

        Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/3/18




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