J-S20022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ABIMAEL CASIANO-FERNANDEZ                  :
                                               :
                       Appellant               :   No. 1596 MDA 2017

               Appeal from the PCRA Order September 27, 2017
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0006385-2003


BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY OTT, J.:                                    FILED JUNE 20, 2018

        Abimael Casiano-Fernandez appeals pro se1 from the order entered

September 27, 2017, in the Court of Common Pleas of Berks County, that

dismissed, as untimely, his petition for writ of habeas corpus, which was

deemed a second petition filed pursuant to the Pennsylvania Post Conviction

Relief Act (PCRA).2 Casiano-Fernandez contends he is entitled to PCRA relief

“based on newly discovered mitigating evidence regarding Brain Science and

Social Science Study.” Casiano-Fernandez’s Brief at 3. In support, Casiano-

Fernandez cites the United States Supreme Court decisions in Miller v.

Alabama, 567 U.S. 460, 132 S. Ct. 2455 (2012), issued June 25, 2012, and
____________________________________________


1 The PCRA court conducted a hearing pursuant to Commonwealth v.
Grazier, 713 A.2d 81 (Pa. 1998), and determined Casiano-Fernandez was not
entitled to appointed counsel. See PCRA Court Opinion, 12/12/2017, at 1.

2   42 Pa.C.S. §§ 9541-9546.
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Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718 (2016), issued

January 25, 2016. Based upon the following, we affirm.

       On July 22, 2005, Casiano-Fernandez was convicted by a jury of murder

in the first degree. See 18 Pa.C.S. § 2502(a). He was 21 years old when he

committed the crime.3 On September 19, 2005, the trial court sentenced him

to life imprisonment without the possibility of parole. On October 24, 2006,

this Court affirmed the judgment of sentence and, on May 10, 2007, the

Pennsylvania      Supreme       Court    denied    allowance   of   appeal.   See

Commonwealth v. Casiano-Fernandez, 913 A.2d 939 (Pa. Super. 2006)

(unpublished memorandum), appeal denied, 923 A.2d 1172 (Pa. 2007).

Thereafter, on November 30, 2007, Casiano-Fernandez filed a timely PCRA

petition that was unsuccessful.                See Commonwealth v. Casiano-

Fernandez, 55 A.3d 126 (Pa. Super. 2012) (unpublished memorandum),

appeal denied, 83 A.3d 413 (Pa. 2014).

       On March 28, 2016, Casiano-Fernandez filed the instant pro se petition

for writ of habeas corpus, citing Miller, supra, in which the United States

Supreme Court held that “mandatory life without parole for those under the

age of 18 at the time of their crimes violates the Eighth Amendment's

prohibition on cruel and unusual punishments.” Miller, 567 U.S. at 465

(emphasis added).           On August 4, 2016, Casiano-Fernandez filed a


____________________________________________


3The record reflects Casiano-Fernandez was born in August of 1978 and the
murder occurred in May of 2000.

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supplemental petition, citing Montgomery, supra, wherein the United States

Supreme Court decided that the Miller holding was a new substantive right

that, under the United States Constitution, must be applied retroactively in

cases on state collateral review. Montgomery, 136 S.Ct. at 736.

       The PCRA court treated the habeas corpus petition as a PCRA petition

and, on June 16, 2017, held a hearing on the merits. Thereafter, the PCRA

court issued a Pa.R.Crim.P. 907 notice of intent to dismiss, to which Casiano-

Fernandez filed a response.           A final order of dismissal was entered on

September 27, 2017. This appeal followed.4

       In reviewing an order denying post-conviction relief, we examine

whether the trial court’s determination is supported by evidence of record and

whether it is free of legal error. Commonwealth v. Robinson, 139 A.3d 178,

185 (Pa. 2016).        Preliminarily, we address the timeliness of the instant

petition.

       Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

became final unless the petition alleges and the petitioner proves one of the

three exceptions to the time limitations for filing the petition. 42 Pa.C.S. §

9545(b)(1). Specifically, the PCRA provides:

       (b) Time for filing petition.—


____________________________________________


4 Casiano-Fernandez timely complied with the order of the PCRA court to file
a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.

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         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition
         alleges and the petitioner proves that:

            (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.

         (2) Any petition invoking an exception provided in
         paragraph (1) shall be filed within 60 days of the date the
         claim could have been presented.

         (3) For purposes of this subchapter, 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.

42 Pa.C.S. § 9545(b).

      Here, Casiano-Fernandez’s judgment of sentence became final on

August 8, 2007, following the Pennsylvania Supreme Court’s denial of his

petition for allowance of appeal on May 10, 2007, and the expiration of the

90-day period for filing a petition for writ of certiorari.     See 42 Pa.C.S. §

9545(b)(3); U.S. Sup. Ct. R. 13. Therefore, under the PCRA one-year time

limitation, any PCRA petition was required to be filed by August 8, 2008. See


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42 Pa.C.S. § 9545(b)(1). Casiano-Fernandez filed his petition on March 28,

2016, and filed a supplemental petition on August 4, 2016.       As such, the

petition is facially untimely.

      Casiano-Fernandez contends, however, that based upon the recent

United States Supreme Court decisions in Miller and Montgomery, he is

entitled to review pursuant to the PCRA’s exception set forth at 42 Pa.C.S. §

9545(b)(1)(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”). Casiano-Fernandez attempts to extend the holdings of Miller and

Montgomery based upon the brain studies and data discussed in Miller. He

maintains he suffered from “a lessened culpability at 22 [sic] years of age due

to his mental infirmities and was no different than a 17 year old offender.”

Casiano-Fernandez’s Brief at 8.

      Initially, we note that Montgomery was decided on January 25, 2016,

and Casiano-Fernandez’s present petition was filed 63 days later, on March

28, 2016. Applying the “prisoner mailbox rule,” we find Casiano-Fernandez

has complied with the threshold 60-day filing requirement of Section

9545(b)(2), supra, because the mailing envelope bears a postmark of March

23, 2016. See Commonwealth v. Little, 716 A.2d 1287, 1288 (Pa. Super.

1998) (“The prisoner mailbox rule provides that the date of delivery of the

PCRA petition by the defendant to the proper prison authority or to a prison




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mailbox is considered the date of filing the petition.”). Nonetheless, no relief

is due.

      Casiano-Fernandez’s “brain science and social science study” argument

was rejected in Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super.

2016), albeit with respect to the retroactively applied constitutional right

exception, 42 Pa.C.S. § 9545(b)(1)(iii).

      In Furgess, the nineteen-year-old defendant convicted of homicide

claimed he was a “technical juvenile” and relied on neuroscientific theories

pertaining to immature brain development to support his claim. The Furgess

Court rejected this argument. Specifically, the Furgess Court relied on the

holding in Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013),

“that petitioners who were older than 18 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).” Furgess, supra, 149 A.3d at 94. Moreover, the Furgess

Court found “nothing in Montgomery undermines” this holding in Cintora.

Id. at 94. In the recent decision of Commonwealth v. Montgomery, ___

A.3d ___ [2018 Pa. Super. LEXIS 221 at *15] (Pa. Super. 2018) (en banc),

this Court declined to overrule Furgess.

      While Furgess concerned a claim brought under Section 9545(b)(1)(iii),

we believe the same rationale is equally applicable to a claim brought under

Section 9545(b)(1)(ii). See id. Simply put, the holdings in Montgomery and


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Miller have no relevance to individuals who were over the age eighteen at the

time they committed murder. Therefore, Casiano-Fernandez cannot rely on

these decisions to satisfy Section 9545(b)(1)(ii).

      Moreover, we note Casiano-Fernandez’s discussion regarding the

applicability of the Pennsylvania Mental Health and Mental Retardation Act of

1966 (“MHMRA”), 50 P.S. § 4101, et seq., is more akin to a defense assertion

(diminished capacity, guilty but mentally ill, and insanity). We reiterate the

Miller and Montgomery decisions held that imposition of a mandatory

sentence of life without parole upon a defendant who was under the age of

eighteen when he/she committed murder violates the Eighth Amendment's

prohibition on cruel and unusual punishments. See Miller, 567 U.S. at 479

(“We therefore hold that the Eighth Amendment forbids a sentencing scheme

that mandates life in prison without possibility of parole for juvenile

offenders.”) (emphasis added). Miller and Montgomery did not analyze

whether their holdings extend to the MHMRA, and we decline to do so.

      Finally, Casiano-Fernandez’s argument that the PCRA court erred in

treating his petition as a PCRA petition, and not a petition for writ of habeas

corpus, warrants no relief.    In his petition filed March 28, 2016, Casiano-

Fernandez challenged the legality of his life sentence based upon Miller,

supra. This Court has held that such a claim is properly construed as a PCRA

petition subject to timeliness requirements.         See Commonwealth v.

Montgomery, supra, 2018 Pa. Super. LEXIS 221 at *16 (finding petition for


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writ of habeas corpus that relied upon Miller to assert it is illegal to sentence

an individual to life imprisonment if he/she does not have a fully developed

brain was cognizable under the PCRA and properly construed as a PCRA

petition).

      In sum, we conclude the present petition was properly treated as

Casiano-Fernandez’s second PCRA petition, and further conclude the petition

is untimely and does not satisfy any PCRA timeliness exception. Accordingly,

we affirm the PCRA court’s order of dismissal.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 06/20/2018




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