J-S39029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JEHMAR GLADDEN

                            Appellant                  No. 3253 EDA 2014


                  Appeal from the PCRA Order October 15, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1010312-1997


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

MEMORANDUM BY OTT, J.:                         FILED SEPTEMBER 28, 2015

        Jehmar Gladden appeals pro se from the order entered in the Court of

Common Pleas of Philadelphia County, dated October 15, 2014, dismissing

his second petition filed under the Post-Conviction Relief Act (PCRA)1 as

untimely. Gladden seeks relief from an aggregate judgment of sentence of

life imprisonment imposed on May 24, 1999, following his jury conviction of

second-degree murder, robbery, and criminal conspiracy.2          Because we

agree the petition is untimely, we affirm.

        Gladden’s convictions arose when he and his two co-conspirators went

to the victim’s house to collect a $15.00 debt owed for cocaine, and one of
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1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. §§ 2502, 3701, and 903, respectively.
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the other men shot the victim in the back. A jury convicted Gladden of the

above-mentioned crimes and the trial court immediately imposed a sentence

of life imprisonment for the murder conviction, and five to ten years’

incarceration for      the conspiracy offense, to be served concurrently.

Gladden’s judgment of sentence was affirmed by a panel of this Court on

November 6, 2000. See Commonwealth v. Gladden, 768 A.2d 883 [1705

EDA 1999] (Pa. Super. 2000) (unpublished memorandum). Gladden did not

subsequently file a petition for allowance of appeal with the Pennsylvania

Supreme Court.

       On September 19, 2003, Gladden filed his first PCRA petition. Counsel

was    appointed,      who    then     filed   a   “no-merit”   letter   pursuant   to

Turner/Finley.3       After issuing a Pa.R.Crim.P. 907 notice, the PCRA court

dismissed his petition on April 15, 2004. Gladden did not file an appeal.

       The docket reflects the case went dormant until August 24, 2012,

when Gladden filed the present pro se PCRA petition. Gladden also filed an

amended PCRA petition on August 1, 2013.              On September 10, 2014, the

PCRA court provided Gladden with its Rule 907 notice of its intent to dismiss

the petition without a hearing. Gladden then filed a pro se praecipe for writ

of habeas corpus ad subjiciendum on September 30, 2014. The PCRA court

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3
   See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).




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treated Gladden’s petition for writ of habeas corpus as a supplement to his

August 24, 2012, PCRA petition,4 and subsequently dismissed the petition as

untimely on October 15, 2014. Gladden filed a timely notice of appeal on

November 7, 2014.5

       Our standard of review is as follows:

       Our standard of review of an order denying PCRA relief is
       whether the record supports the PCRA court’s determination and
       whether the PCRA court’s decision is free of legal error. The
       PCRA court’s findings will not be disturbed unless there is no
       support for the findings in the certified record.

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (citations

omitted).

       “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).


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4
   See PCRA Court Opinion, 12/23/2014, at unnumbered 2. We note the
PCRA provides “the sole means of obtaining collateral relief and
encompasses all other common law and statutory remedies of the same
purpose that exist when [the Act] takes effect, including habeas corpus and
coram nobis.” 42 Pa.C.S. § 9542 (emphasis added). The Pennsylvania
Supreme Court has made clear that “the PCRA subsumes the remedy of
habeas corpus with respect to remedies offered under the PCRA[.]”
Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa. 1998).
5
   The court did not order Gladden to file a concise statement of errors
complained of on appeal under Pa.R.A.P. 1925(b). On December 23, 2014,
the trial court issued an opinion under Pa.R.A.P. 1925(a).



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      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).

      A PCRA petition must be filed within one year of the date the

underlying judgment becomes final. 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).    Here, Gladden’s judgment of sentence was affirmed on

November 6, 2000. Accordingly, his sentence became final on December 6,

2000, 30 days after the period to file a petition for allowance of appeal with

the   Pennsylvania   Supreme   Court      expired.   See   Pa.R.A.P.   1113(a).

Therefore, pursuant to Section 9545(b)(1), Gladden had one year from the

date his judgment of sentence became final to file a PCRA petition.        See

Taylor, supra.    The instant petition was not filed until August 24, 2012,

over ten years later, making it patently untimely.

      An untimely PCRA petition may, nevertheless, 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;


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       (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 ascertained 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 the

date when the PCRA claim could have first been brought.                42 Pa.C.S.

§ 9545(b)(2).

       Gladden claims his petition falls under the timeliness exception of

Subsection 9545(b)(1)(ii), because the facts upon which the claim is

predicated were unknown to him and could not have been ascertained by

the exercise of due diligence.         See Gladden’s Brief at 5.   Specifically, he

contends his sentence of life imprisonment without the possibility of parole

violates both the prohibition against cruel and unusual punishment and the

equal protection clause in light of the United States Supreme Court’s

decision in Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (U.S. 2012).6

See Gladden’s Brief at 7-14.            However, his argument is more akin to

Subsection 9545(b)(1)(iii), the right ascertained is a constitutional right that

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6
  We note the Miller case was decided on June 25, 2012. Gladden filed his
petition on August 24, 2012, which was within the 60-day time period.




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was recognized by the Supreme Court of the United States.7 He states that

even though he was 18 years old8 at the time of the offense, that is of no

moment because as Miller suggests, “his brain was not fully developed.”

Id. at 9 (emphasis removed).

       Here, the PCRA court found the following:

       Because [Gladden] was not below the age of eighteen at the
       time he committed the crime for which he was convicted, the
       holding in Miller is not applicable to his case, and [Gladden]
       properly was denied post-conviction relief both because his
       petition was untimely filed and [the] Miller case did not apply to
       his matter.

PCRA Court Opinion, 12/23/2014, at unnumbered 4 (footnote omitted). We

agree with the court’s rationale.

       In Miller, the 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, 132 S.Ct. at 2460 (emphasis added). Although the Court made clear

that it was not foreclosing a trial court’s ability to impose a life sentence

upon a juvenile convicted of murder, it imposed a requirement upon the trial

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7
  Furthermore, to the extent that Gladden attempts to argue that Miller is a
newly-discovered fact, we note Pennsylvania courts “have expressly rejected
the notion that judicial decisions can be considered newly-discovered facts
which would invoke the protections afforded by Section 9545(b)(1)(ii).”
Commonwealth v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013) (citation
omitted).
8
    Gladden was born on December 30, 1977. See Gladden’s Brief at 5.



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court to “take into account how children are different, and how those

differences counsel against irrevocably sentencing them to a lifetime in

prison.” Id. at 2469. Therefore, it was the mandatory sentencing scheme

that the Supreme Court deemed unconstitutional when applied to juveniles,

holding that “a judge or jury must have the opportunity to consider

mitigating circumstances before imposing the harshest possible penalty for

juveniles.” Id. at 2475.

      Preliminarily, we note the Pennsylvania Supreme Court has held the

Miller decision does not apply retroactively to benefit offenders seeking

collateral review because it “‘does not categorically bar a penalty for a class

of offenders.’”   Commonwealth v. Cunningham, 81 A.3d. 1, 10 (Pa.

2013) (quotation omitted), cert. denied, 134 S.Ct. 2724 (U.S. 2014).

Therefore, Gladden’s collateral claim does not satisfy the “newly recognized

constitutional right” exception to the PCRA timing requirements.       See 42

Pa.C.S. § 9545(b)(1)(iii) (providing exception to the timing requirements

when “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”) (emphasis added).

      Moreover, Gladden concedes he was 18 years old at the time of the

shooting.   Because the Miller Court specifically limited its decision to

juvenile offenders, it simply does not apply to the facts of Gladden’s case.


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See Miller, supra, 132 S.Ct. at 2469 (“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);

see also Commonwealth v. Lawson, 90 A.3d 1, 6 (Pa. Super. 2014)

(holding Miller decision inapplicable to appellant’s case when appellant was

thirty-three years old at the time he committed murder).

      Gladden’s attempt to invoke the Equal Protection Clause is similarly

meritless.   He argues Miller applies equally to him as he falls within the

class of individuals between the ages of 18 and 25 that is protected by the

Eighth Amendment, and who are treated differently than others younger

than 18 years old. Gladden’s Brief at 10-13.

      A panel of this Court rejected a similar claim in Commonwealth v.

Cintora, 69 A.3d 759 (Pa. Super. 2013), appeal denied, 81 A.3d 75 (Pa.

2013). In that case, the co-defendants, who were 19 and 21 years old at

the time they committed second degree murder, invoked the Miller decision

in an attempt to overcome their untimely filed PCRA petitions.     Although

they recognized that they were not under the age of 18 at the time they

committed the crimes, 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 human mind does not fully develop or mature until the
      age of 25, it would be a violation of equal protection for the

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      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). Accordingly, Gladden

is similarly entitled to no relief.

      As such, based on the aforementioned law, we conclude Gladden failed

to plead and prove the applicability of the new constitutional right exception

to the PCRA’s timeliness requirement.       The PCRA court properly denied

Gladden’s petition and, therefore, we affirm its October 15, 2014, order.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/28/2015




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