J-S79015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KENNETH BYRON DAVENPORT                    :
                                               :
                       Appellant               :   No. 782 EDA 2017

                 Appeal from the PCRA Order February 10, 2017
              In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0000117-1973


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

MEMORANDUM BY OTT, J.:                                   FILED MARCH 06, 2018

       Kenneth Byron Davenport appeals, pro se, from the order entered

February 10, 2017, in the Court of Common Pleas of Montgomery County,

dismissing his serial petition filed under the Post-Conviction Relief Act

(“PCRA”)1 as untimely. On appeal, Davenport claims he is entitled to PCRA

relief under Miller v. Alabama, 567 U.S. 460 (2012),2 and Montgomery v.




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1   42 Pa.C.S. §§ 9541-9546.

2 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, 567 U.S. at 465 (emphasis added).
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Louisiana, 136 S. Ct. 718 (January 25, 2016).3         Based on following, we

disagree and, therefore, affirm.

       On March 11, 1973, Davenport, then a Drexel University student,

murdered four family members: his father, mother, and two brothers. He

was originally found guilty of four counts of first-degree murder4 on April 11,

1974, but because of erroneous jury instructions, he was granted a new trial.

On June 24, 1976, at his re-trial, a jury again convicted Davenport of four

counts of first-degree murder. On April 29, 1977, Davenport was sentenced

to four consecutive life terms of imprisonment without the possibility of parole.

Davenport did not file a direct appeal but did seek post-conviction relief. In

1986, a panel of this Court affirmed the denial of his first post-conviction

petition.    Both the Pennsylvania Supreme Court and the United States

Supreme Court denied review.            See Commonwealth v. Davenport, 509

A.2d 1319 (Pa. Super. 1986) (unpublished memorandum), appeal denied, 563

A.2d 886 (Pa. 1987), cert. denied, 493 U.S. 996 (1989).




____________________________________________


3 In Montgomery, the Supreme Court held that Miller 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.

4   18 Pa.C.S. § 2502(a).



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       Davenport filed the instant, serial PCRA petition5 on February 26, 2016,

and a supplemental petition on September 16, 2016. After determining the

petition was untimely, the PCRA court notified Davenport of its intent to

dismiss the petition without a hearing on December 19, 2016.                 See

Pa.R.Crim.P. 907.       Davenport filed a response to the Rule 907 notice on

January 6, 2017.        On February 10, 2017, after considering Davenport’s

response, the PCRA court dismissed his petition. This pro se appeal followed.6

       Davenport presents the following issues for our review:

       1. Did the PCRA court err by failing to resolve the substantial
          question under state law whether the U.S. Supreme Court’s
          holding in Montgomery v. Louisiana applies to a marginally
          older teenager (age 18 and 4 mos.) who was severely mentally
          ill and psychotic at the time of the murders and who was
          demonstrably a juvenile pursuant to provisions of the
          Pennsylvania Mental Health and Mental Retardation Act of
          1966.

       2. Did the PCRA court err by declining to accept subject matter
          jurisdiction to decide the above question under Article 1, §§ 9
          and 13, and Article III, § 32 of the Pennsylvania Constitution -
          - providing for substantive due process and equal protection.

       3. Did the PCRA court err by declining to accept subject matter
          jurisdiction to decide the first question under the 8th
          Amendment of the U.S. Constitution and/or coextensively with
          Article 1, § 13 of the Pennsylvania Constitution.
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5  The PCRA Court and the Commonwealth both indicate this is Davenport’s
third petition. See PCRA Court Opinion, 5/11/2017, at 4-5; Commonwealth’s
Brief at 2. His prior petitions have not provided Davenport with any relief.

6 On February 27, 2017, the PCRA court ordered Davenport to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Davenport filed a concise statement on March 8, 2017. The PCRA court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on May 11, 2017.

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      4. Did the PCRA court err by failing to resolve the issue of whether
         there was a waiver of the age-issue as applied based on the
         Commonwealth’s prior representations in Kremens v.
         Bartley, 431 U.S. 119 (1977), and Secretary of Public
         Welfare v. Institutionalized Juveniles, 442 U.S. 640
         (1979), that the certified class of juveniles consisted of “… all
         persons eighteen years of age or younger who have been, are,
         or may be admitted or committed to mental facilities in
         Pennsylvania.”

Davenport’s Brief at 5.

      “Crucial to the determination of any PCRA appeal is the timeliness of the

underlying petition. Thus, we must first determine whether the instant PCRA

petition was timely filed.” Commonwealth v. Smith, 35 A.3d 766, 768 (Pa.

Super. 2011), appeal denied, 53 A.3d 757 (Pa. 2012).

      The PCRA timeliness requirement … is mandatory and
      jurisdictional in nature. Commonwealth v. Taylor, 933 A.2d
      1035, 1038 (Pa. Super. 2007), appeal denied, 597 Pa. 715, 951
      A.2d 1163 (2008) (citing Commonwealth v. Murray, 562 Pa. 1,
      753 A.2d 201, 203 (2000)). The court cannot ignore a petition’s
      untimeliness and reach the merits of the petition. Id.

Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013), cert. denied,

134 S. Ct. 2695 (U.S. 2014). A PCRA petition must be filed within one year

of the date the underlying judgment becomes final.          See 42 Pa.C.S. §

9545(b)(1). A judgment is deemed 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

review.” 42 Pa.C.S. § 9545(b)(3). As noted above, Davenport was sentenced

on April 29, 1977, and did not file a direct appeal. Therefore, his judgment of


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sentence became final on May 31, 1977,7 making the present petition patently

untimely.8

       Nevertheless, an untimely PCRA petition may be considered if one of the

following three exceptions applies:

       (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). Furthermore, a PCRA petition alleging any of

the exceptions under Section 9545(b)(1) must be filed within 60 days of when

the PCRA claim could have first been brought. 42 Pa.C.S. § 9545(b)(2).

       Davenport contends he is entitled to review pursuant to the PCRA’s new

constitutional    right   exception     at     Section   9545(b)(1)(iii),   based   upon


____________________________________________


7  See 1 Pa.C.S. § 1908 (excluding weekends and legal holidays from
computation of time).

8 There exists a proviso to the 1995 amendments to the PCRA that provides
a grace period for petitioners whose judgments became final on or before the
January 16, 1996 effective date of the amendments. However, the proviso
applies to first PCRA petitions only, and the petition must be filed by January
16, 1997. See Commonwealth v. Thomas, 718 A.2d 326 (Pa. Super. 1998)
(en banc). It is evident Davenport is not entitled to the relief provided by the
proviso.

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Miller/Montgomery.      The PCRA court concluded that Davenport is not

entitled to relief under these decisions because Davenport was 18 years of

age when he committed the murders, and Miller’s holding only applies to

defendants who were under the age of 18 at the time of their crimes. See

PCRA Court Opinion, 5/11/2017, at 5-6.     We agree with the PCRA court’s

determination.

     Davenport contends that Miller should be extended to individuals such

as himself on the basis that he was age 18 and four months at the time of his

arrest and his mental illness resulted in a diminished culpability.      See

Davenport’s Brief at 14-19.      Similar arguments have been previously

considered and rejected by this Court.

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

19-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 relied on the holding in

Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013), appeal denied,

81 A.3d 75 (Pa. 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-




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bar exception in Section 9545(b)(1)(iii).”9 Furgess, supra, 149 A.3d at 94.

Moreover, the Furgess court found “nothing in Montgomery undermines”

this holding in Cintora. Id.10 See also Commonwealth v. Rodriguez, 174

A.3d 1130 (Pa. Super. 2017) (“Appellant acknowledges that he was eighteen

years old at the time he committed the murder; however, he argues,

nevertheless, that he may invoke Miller because his immature and/or

impulsive brain made him similar to a juvenile.    Thus, Appellant seeks an

extension of Miller to persons convicted of murder who were older at the time

of their crimes than the class of defendants subject to the Miller holding.

However, this Court has previously rejected such an argument.”).

        Although Davenport attempts to distinguish case law from his specific

circumstances, we conclude that Furgess and Cintora are controlling in this

case.




____________________________________________


9 In Cintora, the co-defendants, who were 19 and 21 years old at the time
they committed second degree murder, invoked Miller to overcome the
untimeliness of their PCRA petition, arguing that a human brain does not fully
develop until the age of 25 and that the holding of Miller was applicable
pursuant to the Equal Protection Clause. In rejecting these arguments, this
Court stressed the co-appellants’ “contention that a newly-recognized
constitutional right should be extended to others does not render their
petition timely pursuant to section 9545(b)(1)(iii).” Cintora, 69 A.3d at 764
(emphasis in original).

10 The Furgess Court acknowledged, however, that Cintora's additional
holding, that Miller had not been applied retroactively, was “no longer good
law” after Montgomery. Furgess, supra, 149 A.3d at 94.

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      Moreover, we note Davenport’s argument 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/Montgomery holding specifically concerns cases involving defendants

who are under the age of 18 at the time of their crimes and have been

sentenced to mandatory life without parole because it 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/Montgomery did not

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

so.

      Furthermore, Davenport’s attempt to circumvent this obstacle to relief

by invoking the Equal Protection Clause is similarly meritless.            See

Davenport’s Brief at 19-22. This Court rejected a similar claim in Cintora,

supra. In Cintora, although the defendants recognized that they were not

under the age of 18 at the time they committed the crime, they argued that

the holding of Miller was applicable pursuant to the Equal Protection Clause.

This Court disagreed:

      Appellants … contend that because Miller created a new Eighth
      Amendment right, that those whose brains were not fully
      developed at the time of their crimes are free from mandatory life
      without parole sentences, and because research indicates that the

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       human mind does not fully develop or mature until the age of 25,
       it would be a violation of equal protection for the courts to treat
       them or anyone else with an immature brain, as adults. Thus,
       they conclude that the holding in Miller should be extended to
       them as they were under the age of 25 at the time of the murder
       and, as such, had immature brains. However, we need not reach
       the merits of Appellants’ argument, as their contention that a
       newly-recognized constitutional right should be extended to
       others does not render their petition timely pursuant to section
       9545(b)(1)(iii).

Id. at 764 (citation omitted and emphasis in original). Therefore, Davenport

is similarly entitled to no relief. Accordingly, Davenport’s claim that the right

in Miller/Montgomery applies to his case is without merit.

       In sum, the PCRA court properly found that Davenport’s PCRA petition

is untimely and that he failed to establish a statutory exception to the time

bar.   Because we have no jurisdiction to review this untimely petition, we

affirm.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/6/18




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