J-S29003-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

TYREE HART,

                          Appellant                    No. 316 EDA 2019


             Appeal from the PCRA Order Entered January 10, 2019
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0905971-1995


BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                           FILED JULY 10, 2019

      Appellant, Tyree Hart, appeals pro se from the post-conviction court’s

January 10, 2019 order denying, as untimely, his petition filed under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review,

we affirm.

      On August 2, 1995, Appellant — then 18 years of age — approached the

victim on a street corner in Philadelphia, shot him to death, and stole his

wallet. On March 17, 1997, Appellant pled guilty to murder generally, and

waived his right to a jury trial on a robbery charge. Thereafter, the trial court

held a degree-of-guilt hearing for the murder conviction and a non-jury trial

on the robbery count. The trial court found that Appellant had committed

second-degree murder, and it convicted him of robbery. On September 19,

1997, the court sentenced Appellant to a mandatory term of life without the
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possibility of parole (LWOP) for his murder conviction, and imposed no further

penalty for his robbery offense. This Court affirmed Appellant’s judgment of

sentence on January 25, 1999, and our Supreme Court denied his subsequent

petition for allowance of appeal. Commonwealth v. Hart, 736 A.2d 681 (Pa.

Super. 1999) (unpublished memorandum), appeal denied, 742 A.2d 672 (Pa.

1999).

       Appellant thereafter filed a PCRA petition that was ultimately denied by

the post-conviction court and affirmed on appeal. See Commonwealth v.

Hart, 832 A.2d 537 (Pa. Super. 2003). Appellant did not seek review by our

Supreme Court. On August 10, 2012, he filed a second, pro se PCRA petition,

which was also denied, and we affirmed on appeal. Commonwealth v. Hart,

116 A.3d 674 (Pa. Super. 2014) (unpublished memorandum). Appellant did

not file a petition for allowance of appeal with our Supreme Court.

       On March 23, 2016, Appellant filed the pro se PCRA petition underlying

the present appeal.1 For some unexplained reason, it was not until October

9, 2018, that the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to

dismiss Appellant’s petition without a hearing.    Although he filed a pro se

response to that notice, the court issued an order (and an accompanying

opinion) on January 10, 2019, denying his petition as being untimely-filed.


____________________________________________


1Both parties claim that Appellant’s petition was filed on August 23, 2016;
however, the time-stamp on the petition (titled, “Supplemental Post
Conviction Collateral Relief Petition Pursuant to the [PCRA] Under 42 Pa.C.S.
§§ 9541-9546”) shows a date of March 23, 2016.

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      Appellant filed a timely, pro se notice of appeal. Herein, he presents

three issues for our review:

      I) Whether the [PCRA] court[] inappropriately applied 42 Pa.C.S.
      § 9545(b)(1)(iii) relating to timeliness when Appellant’s claim that
      the right established in Miller v. Alabama[, 567 U.S. 460
      (2012),] applies to [Appellant,] who possessed those same
      characteristics of youth identified as constitutional[ly] significant
      for sentencing purposes by the United States Supreme Court[]?

      II) Did the [PCRA] court abuse it’s [sic] discretion in failing to hold
      an evidentiary hearing … where [Appellant] … raised genuine
      issues … of material fact[] that entitle[] him to relief[]?

      III) Did the [PCRA] court err in not holding an evidentiary hearing
      when [Appellant’s] [PCRA] petition “relies on” and “contain[s]” a
      new rule of constitutional law[]?

Appellant’s Brief at 1 (unnecessary capitalization omitted).

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.        Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations implicate

our jurisdiction and may not be altered or disregarded in order to address the

merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.

2007). Under the PCRA, any petition for post-conviction relief, including a

second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the following exceptions

set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--



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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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, at the time Appellant’s petition

was filed, section 9545(b)(2) required that any petition attempting to invoke

one of these exceptions “be filed within sixty days of the date the claim could

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

       Here, Appellant’s judgment of sentence became final in 1999 and thus,

his present petition filed in 2016 is facially untimely. Consequently, for this

Court to have jurisdiction to review the merits thereof, Appellant must prove

that he meets one of the exceptions to the timeliness requirements set forth

in 42 Pa.C.S. § 9545(b).



____________________________________________


2 A recent amendment to section 9545(b)(2), which became effective on
December 24, 2018, changed the language to require that a petition “be filed
within one year of the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2).

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      Instantly, Appellant argues that he meets the new-retroactive-right

exception of section 9545(b)(1)(iii).   In support of this claim, he relies on

Miller, in which the United States Supreme Court held that mandatory LWOP

sentences “for those under the age of 18 at the time of their crimes violate[]

the Eighth Amendment’s prohibition against ‘cruel and unusual punishments.’”

Miller, 567 U.S. at 465. Although Appellant was 18 years old at the time of

his crime, he insists that the Equal Protection Clause requires that Miller be

applied to individuals, such as him, who were the mental equivalent of a

juvenile at the time of their crime. See Appellant’s Brief at 4.

      Appellant’s argument is unavailing.    This Court has consistently held

“that age is the sole factor in determining whether Miller applies to overcome

the PCRA time-bar[,]” and we have repeatedly “decline[d] to extend [Miller’s]

categorical holding” to petitioners who were 18 or over at the time of their

crime. Commonwealth v. Lee, 206 A.3d 1, 11 (Pa. Super. 2019) (en banc).

Further, this Court has rejected the same Equal Protection argument raised

by Appellant herein. See Commonwealth v. Montgomery, 181 A.3d 359,

366 (Pa. Super. 2018) (en banc) (“Neither the Supreme Court of the United

States nor our Supreme Court has held that Miller announced a new rule

under the Equal Protection Clause. Instead, Miller only announced a new rule

with respect to the Eighth Amendment.         Thus, contrary to [petitioner’s]

assertions, his Equal Protection Clause argument is also an attempt to extend

Miller’s holding.”).   Accordingly, as we stated in Lee, “[u]ntil the United

States Supreme Court or the Pennsylvania Supreme Court recognizes a new

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constitutional right in a non-juvenile offender, we are bound by precedent” to

conclude that Appellant cannot rely on Miller to satisfy the timeliness

exception of section 9545(b)(1)(iii). Lee, 206 A.3d at 11.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/19




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