J-S06010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    CHRISTOPHER WILLIS                         :
                                               :
                      Appellant                :    No. 2522 EDA 2017

                   Appeal from the PCRA Order June 23, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0603401-2005


BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                                   FILED MARCH 16, 2018

        Christopher Willis appeals from the denial of his second pro se PCRA

petition as untimely. We affirm.

        In January 2005, Appellant was arrested in connection with the

October 4, 2003 shooting death of Terrence Barron in Philadelphia.

Appellant was nineteen years old at the time of the shooting.1             Trial was

delayed until January 2009, after which a jury convicted him of first-degree

murder, criminal conspiracy, possession of an instrument of crime, and

recklessly endangering another person.             On July 28, 2009, the trial court

sentenced Appellant to life in prison for first-degree murder, and either

concurrent sentences or no further penalty at the remaining charges.

____________________________________________


1 Appellant’s criminal docket indicates that he was born on February 14,
1984.
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Appellant    filed   a   timely   appeal   to   this   Court,   and   we   affirmed.

Commonwealth v. Willis, 23 A.3d 1079 (Pa.Super. 2011) (unpublished

memorandum).         On August 30, 2011, the Pennsylvania Supreme Court

denied Appellant’s petition for allowance of appeal.            Commonwealth v.

Willis, 27 A.3d 225 (Pa. 2011). He did not seek further review.

      On August 20, 2012, Appellant filed a timely, counseled PCRA petition,

his first.   Counsel filed an amended petition on February 19, 2014.            The

PCRA court filed its Rule 907 notice of its intent to dismiss Appellant’s

petition, and thereafter, on May 16, 2014, it dismissed the petition without a

hearing. Appellant appealed, we affirmed, Commonwealth v. Willis, 131

A.3d 83 (Pa.Super. 2015) (unpublished memorandum), and, on August 11,

2015, the Supreme Court denied Appellant’s petition for leave to file a

petition for allowance of appeal nunc pro tunc.

      Appellant filed the instant pro se PCRA petition on March 18, 2016,

alleging a violation of his constitutional rights, and arguing that he was

entitled to resentencing based on the United States Supreme Court’s holding

in Montgomery v. Louisiana, 136 S.Ct. 718 (2016), which held the new

constitutional right involving the sentencing of juveniles announced in Miller

v. Alabama, 567 U.S. 460 (2012), applied retroactively.               On March 27,

2017, the PCRA court served Rule 907 notice of intent to dismiss on

timeliness grounds. Appellant filed a response reiterating his claim that the

petition was timely filed. The PCRA court disagreed, and on June 23, 2017,

it dismissed Appellant’s petition as untimely.

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        Appellant filed an untimely notice of appeal to this Court on August 1,

2017.        We issued a rule to show cause why this appeal should not be

quashed as untimely. Appellant responded to the rule to show cause, and

provided evidence that the PCRA court failed to serve him with notice of the

dismissal of his PCRA petition until July 21, 2017, three days prior to the

expiration of the time to file a timely notice of appeal.          In light of the

breakdown in the operations of the PCRA court, we find that Appellant’s

notice of appeal was timely filed within thirty days of his receipt of the order

denying his PCRA petition, and thus, we will not quash this appeal.

        Appellant complied with the PCRA court’s order to file a Rule 1925(b)

concise statement of errors complained of on appeal, and the PCRA court

authored its Rule 1925(a) opinion. This matter is now ready for our review.

        Appellant raises four questions for our consideration:

        I.      Whether [Appellant’s] Appeal is timely, and if not, is
                [Appellant] entitled to reinstatement of his right to file a
                timely Notice of Appeal as the court committed error when
                it failed to serve [Appellant] a copy of the order denying
                PCRA relief within sufficient time to timely file a notice of
                appeal, Consequently, violation [Appellant’s] due process
                of law under Pa.R.Crim.P. 122, Article I, sec 9, and Article
                V, sec     9 of Pennsylvania Constitution, the sixth and
                fourteenth Amendments of the U.S. Constitution.

        II.     Whether [Appellant’s] instant PCRA petition predicated
                upon the [U]nited States Supreme Court’s decision in
                [Miller, supra], is timely filed under the purview of 42
                Pa.C.S. § 9545(b)(1)(iii)?

        III.    The court’s imposition of an illegal mandatory life without
                parole sentence, for a homicide offense committed while
                [Appellant] was a child/minor, violates the eighth

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              Amendment’s    Prohibition    on     “cruel   and    unusual
              punishments.” As a result of:

            (A)   Miller’s Application Being Binding Upon All States,

            (B)   Appellant is a Child/Minor Under Pennsylvania Law, and

            (C)   Equal Protection Demands Miller’s Application

      IV.     Whether the rule of law announced in Miller requires
              retroactive invalidation of a mandatory life without parole
              sentenced [sic] imposed on an offender with diminished
              culpability caused by the combined effect of [Appellant’s]
              youth, childhood and adolescent psychological problems.

Appellant’s brief at 1-2.

      Our scope and standard of review of decisions denying relief pursuant

to the PCRA is limited to examining whether the PCRA court’s findings of fact

are supported by the record, and whether its conclusions of law are free

from legal error.      Commonwealth v. Chmiel, 173 A.3d 617, 624 (Pa.

2017). Our review of questions of law is de novo. Id. at 625.

      As we disposed of Appellant’s first issue, supra, and found that his

notice of appeal was timely filed, we commence our analysis by considering

the timeliness of Appellant’s petition, as it implicates our jurisdiction over

this matter. It is well-settled that a PCRA petition, including a subsequent or

serial petition, must be filed within one year of the date that a defendant’s

judgment of sentence became final, unless an exception to the one-year

statutory time bar applies. 42 Pa.C.S. § 9545(b)(1). This time restriction is

jurisdictional in nature.    Whether a petition is timely is a matter of law.

Commonwealth v. Hudson, 156 A.3d 1194, 1197 (Pa.Super. 2017).

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     Appellant concedes that his petition is facially untimely.             When a

petition is facially untimely, the petitioner must plead and prove that one of

the statutory exceptions applies.          Id.     If no exception applies, then the

petition must be dismissed, as we do not have jurisdiction to consider the

merits of the appeal. Id. The PCRA reads, in pertinent part:

     (b)              Time for filing petition.-

        (1)          Any petition under this subchapter, including a second
                     or subsequent petition, shall be filed within one year of
                     the date the judgment of sentence 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 the government officials
                        with the presentation of the claim in violation of the
                        Constitution or law 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.

42 Pa.C.S. § 9545(b)(1) and (2).

     Appellant claims that the PCRA court erred in dismissing his petition as

untimely because he pled and proved that he is entitled to relief pursuant to

§ 9545(b)(1)(iii). He asserts that he filed the instant petition on March 18,

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2016, within sixty days of the Supreme Court’s decision in Montgomery,

supra, which the High Court decided on January 25, 2016.            Appellant

alleges that he is entitled to relief based on Miller, supra, which held

unconstitutional the imposition of a mandatory term of life imprisonment

without parole to juvenile homicide offenders, and Montogomery, supra,

which held Miller to apply retroactively.

        Further, although Appellant concedes that he was nineteen years old

at the time of his offense, he claims that the PCRA court erred in

determining that he was not entitled to the application of Miller.      In so

asserting, he relies on the definition of “child” as provided by 42 Pa.C.S. §

6302 of the Juvenile Act. That provision defines the term “child,” in relevant

part, as an individual who “is under the age of 21 years who committed an

act of delinquency before reaching the age of 18 years[.]”      42 Pa.C.S. §

6302.      He maintains that he was adjudicated delinquent when he was

seventeen years old, and remained under the jurisdiction of the juvenile

courts until he committed the offense in question at age nineteen. As such,

he concludes that, under Pennsylvania law, he was a “child” at the time of

his crime, and hence, he is entitled to relief under Miller.

        The PCRA court determined that Appellant’s petition was untimely

since he was not under the age of eighteen at the time of the murder, and

therefore, he was not entitled to the retroactive application of Miller

pursuant to Montgomery. It concluded that Appellant failed to plead and


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prove an exception to the PCRA’s statutory time bar, and thus, dismissed his

petition as untimely. We agree.

      In Miller, 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, supra, at 465 (emphasis added).                In light of this

clear language, Miller’s holding applies only to those offenders who were

under the age of eighteen at the time of their crimes. See Commonwealth

v. Furgess, 149 A.3d 90 (Pa.Super. 2016) (petitioners who were older than

eighteen when they committed murder “may not rely upon [Miller] to bring

themselves within the time-bar exception in Section 9545(b)(1)(iii)”). It is

irrelevant    whether       Appellant   was   considered    a    “child”     pursuant   to

Pennsylvania’s Juvenile Act at the time of his offense since it is undisputed

that he was nineteen years old at the time of the homicide in question.

Thus, he is not entitled to relief pursuant to Miller, and the PCRA court did

not err in dismissing his PCRA petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/16/18




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