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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :       IN THE SUPERIOR COURT OF
                                            :             PENNSYLVANIA
                    v.                      :
                                            :
TITO McGILL,                                :           No. 708 MDA 2017
                                            :
                          Appellant         :


                  Appeal from the PCRA Order, March 10, 2017,
                in the Court of Common Pleas of Dauphin County
                Criminal Division at No. CP-22-CR-0001336-1996


BEFORE: SHOGAN, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED FEBRUARY 21, 2018

        Tito McGill appeals pro se from the March 10, 2017 order denying his

second petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”)1 as untimely. After careful review, we affirm.

        The   relevant   facts   and   procedural    history   of   this   case   were

summarized in the PCRA court’s Pa.R.Crim.P. 907 notice and need not be

reiterated here.    (See Notice Pursuant to Rule of Criminal Procedure 907,

1/24/17 at 1-2; certified record at no. 17.)         In sum, appellant was found

guilty of first-degree murder and related offenses and was sentenced to an

aggregate term of life imprisonment on August 27, 1996.                On March 18,

1999, a panel of this court affirmed appellant’s judgment of sentence, and




1   42 Pa.C.S.A. §§ 9541-9546.
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our   supreme     court   denied    allowance   of    appeal   on     July   13,    1999.

Commonwealth v. McGill, 737 A.2d 1276 (Pa.Super. 1999), appeal

denied, 740 A.2d 1145 (Pa. 1999). On April 18, 2000, appellant filed his

first pro se PCRA petition, and counsel was appointed to represent him. The

PCRA court ultimately dismissed appellant’s petition on August 27, 2002. On

August 6, 2003, a panel of this court affirmed the dismissal of appellant’s

petition,   and   our     supreme    court   denied       allowance    of    appeal   on

September 23,     2004.      Commonwealth            v.   McGill,     833    A.2d   1148

(Pa.Super. 2003), appeal denied, 859 A.2d 768 (Pa. 2004).

      Appellant filed the instant pro se petition, his second, on August 13,

2012, as well as a 21-page supplemental pro se petition on March 14, 2016.

On July 13, 2016, the PCRA court appointed Kaitlyn S. Clarkson, Esq.

(“Attorney Clarkson”), to represent appellant. Thereafter, on November 28,

2016, Attorney Clarkson filed a “no-merit” letter and a petition to withdraw

in accordance with Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),

and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

On January 24, 2017, the PCRA court granted Attorney Clarkson leave to

withdraw and provided appellant with notice of its intention to dismiss his

petition without a hearing, pursuant to Rule 907. Appellant filed a pro se

response to the PCRA court’s Rule 907 notice on February 10, 2017.




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Thereafter, on March 10, 2017, the PCRA court dismissed appellant’s petition

as untimely. This timely appeal followed.2

      Before we address the merits of appellant’s arguments, we must first

consider the timeliness of appellant’s PCRA petition because it implicates the

jurisdiction of this court and the PCRA court. Commonwealth v. Davis, 86

A.3d 883, 887 (Pa.Super. 2014) (citation omitted). It is well settled that all

PCRA petitions, including second and subsequent petitions, must be filed

within one year of when a defendant’s judgment of sentence becomes final.

See 42 Pa.C.S.A. § 9545(b)(1).     Here, appellant’s judgment of sentence

became final on October 13, 1999, 90 days after the Pennsylvania Supreme

Court denied allowance of appeal and the deadline for filing a petition for

writ of certiorari in the United States Supreme Court expired.           See

42 Pa.C.S.A. § 9545(b)(3) (providing “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[]”).    Accordingly, appellant had

until October 13, 2000, to file a timely PCRA petition.    See 42 Pa.C.S.A.

§ 9545(b)(1). Appellant’s instant petition, filed August 13, 2012, is patently




2 The PCRA court ordered appellant to file a concise statement of errors
complained of on appeal, in accordance with Pa.R.A.P. 1925(b), on April 24,
2017. Appellant filed a timely pro se Rule 1925(b) on May 10, 2017. On
August 9, 2017, the PCRA court filed a “Memorandum Statement in Lieu of
Opinion” adopting the reasoning set forth in this January 24, 2017 Rule 907
notice.


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untimely, and the PCRA court lacked jurisdiction to review it, unless

appellant alleged and proved one of the statutory exceptions to the time-bar

set forth in Section 9545(b)(1).

      To invoke an exception under Section 9545(b)(1), a petitioner must

allege and prove:

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

      Instantly, the record reveals that appellant failed to prove any of the

statutory exceptions to the PCRA time-bar.                The crux of appellant’s

argument    on      appeal   is   that   his   sentence   of   life   imprisonment   is

unconstitutional in light of the United States Supreme Court’s decisions in

Miller v. Alabama, 567 US 460 (2012), and Montgomery v. Louisiana,

136 S.Ct. 718 (2016).         (See appellant’s brief at 9-10.)          In Miller, the

Supreme Court recognized a constitutional right for juveniles, holding that


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“mandatory life without parole for those under the age of 18 at the time of

their crimes violates the Eighth Amendment’s prohibition against ‘cruel and

unusual punishments.’”       Miller, 567 US at 465.         In Montgomery, the

Supreme Court recently held that its rule announced in Miller applies

retroactively on collateral review. Montgomery, 136 S.Ct. at 736.

        Here, however, the record reveals that appellant was 19 years old on

December 14, 1995, the date he committed the crimes in question. As such,

these    cases   are   inapplicable.   Miller,   567   US    at   465;   see   also

Commonwealth v. Furgess, 149 A.3d 90, 92-93 (Pa.Super. 2016) (holding

that, an appellant’s assertion of the time-bar exception set forth in

Section 9545(b)(1)(iii) must be rejected because the constitutional rule

rendering mandatory sentences of life imprisonment without possibility of

parole on juveniles unconstitutional applied only to those defendants who

were 18 or under when offenses were committed).

        Accordingly, we discern no error on the part of the PCRA court in

dismissing appellant’s PCRA petition as untimely.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/21/2018



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