J-S31028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMEL DAVIS                                :
                                               :
                       Appellant               :   No. 2779 EDA 2017

                   Appeal from the PCRA Order August 8, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0608741-1998


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                                FILED JULY 02, 2018

        Jamel Davis appeals, pro se, from the order, entered in the Court of

Common Pleas of Philadelphia County, dismissing his petition filed pursuant

to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-46 (“PCRA”). After

our review, we affirm.

        Following a bench trial before the Honorable Jane C. Greenspan, the

court convicted Davis of first-degree murder and sentenced him to life

imprisonment. On direct appeal, this Court affirmed his judgment of sentence

on December 16, 1999. See Commonwealth v. Davis, 750 A.2d 366 (Pa.

Super. 1999) (Table). Davis did not seek allowance of appeal in the

Pennsylvania Supreme Court.1 He filed his first PCRA petition on November


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1   The thirtieth day, January 15, 2000, fell on a Saturday. See 1 Pa.C.S.A. §
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8, 2000. The court appointed counsel, who thereafter filed a “no merit” letter

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

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

August 15, 2001, the PCRA court dismissed his petition as meritless, and this

Court affirmed. Commonwealth v. Davis, 806 A.2d 458 (Pa. Super. 2002)

(Table). Davis did not seek allowance of appeal in the Pennsylvania Supreme

Court.

       On September 14, 2011, Davis filed a second PCRA petition, which was

dismissed as untimely on January 13, 2012. This Court affirmed the PCRA

court’s order on December 17, 2012. Commonwealth v. Davis, 64 A.3d 23

(Pa. Super. 2012) (Table). The Pennsylvania Supreme Court denied allowance

of appeal, Commonwealth v. Davis, 620 Pa. 695 (Pa. May 13, 2013), and

the United States Supreme Court denied certiorari. Davis v. Pennsylvania,

571 U.S. 919 (Oct. 07, 2013).

       On March 24, 2016, Davis filed the instant PCRA petition, his third. The

PCRA court dismissed it as untimely, and Davis filed this appeal. He raises

the following issues for our review:

          1. Whether the United States Supreme Court case in
             Montgomery v. Louisiana, [136 S. Ct. 718 (2016, as
             revised (Jan. 27, 2016)] has rendered a new executive
             decision that applies to all cases of substantive rules of
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1908. Thus, Davis had until Monday, January 17, 2000, to file a petition for
allowance of appeal in the Pennsylvania Supreme Court, and his judgment of
sentence became final on that date. 42 Pa.C.S.A. § 9545(b)(3). He therefore
had until January 17, 2001, to file any and all petitions under the PCRA. 42
Pa.C.S.A. § 9545(b)(1).

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            constitutional law. Thereby, making it “constitutional[ly]”
            permissible, by due process of law, for a defendant to raise
            said claim where application applies under [the] 5th, 8th and
            14th [Amendments].

         2. Whether the ruling in Montgomery gives retroactive effect
            to Alleyne [v. United States, 570 U.S. 99 (2013)], when
            involving new watershed procedural rules and substantive
            rules of constitutional which apply to a defendant.

         3. Whether according to Montgomery, citing Miller v.
            Alabama, [567 U.S. 460 (2012)], the petitioner’s sentence
            is a disproportionate punishment as a mandatory life-
            without-parole for a youth homicide offender, though not a
            juvenile, violates the Eighth Amendment’s prohibition on
            “cruel and unusual punishment” for the undisputable
            reasoning of a youth offender between the ages of 18 to 25
            suffers from the same or similar irresponsible characteristics
            and immature traits as those described in association with
            juvenile offenders.

         4. The scientific research that supported the decision in
            Montgomery, to make Miller v. Alabama retroactive
            definitively concluded that such scientific/medical research
            substantiating transient immaturity that diminishes
            culpability extends to the age 25, thereby entitled a
            defendant who was under the age of 25 when committing
            homicide of the first or second degree to the equal
            protection rights governed under [the Fourteenth
            Amendment] and due process under the [Fifth Amendment]
            as a defendant in this regard is similarly situated to that of
            a juvenile concerning immaturity research and should
            therefore be award the “same” treatment as a juvenile
            offender.

Appellant’s Brief, at 3-4.

      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

determination is free of legal error. Commonwealth v. Phillips, 31 A.3d

317, 319 (Pa. Super. 2011). The PCRA court’s findings will not be disturbed


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unless there is no support for the findings in the certified record.

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

       Here, Davis’ petition is clearly untimely. See supra n. 1. However,


       [A]n untimely petition may be received when the petition alleges,
       and the petitioner proves, that any of the three limited exceptions
       to the time for filing the petition, set forth at 42 Pa.C.S.A. §
       9545(b)(1)(i), (ii), and (iii), is met. A petition invoking one of
       these exceptions must be filed within sixty days of the date the
       claim could first have been presented. 42 Pa.C.S.A. § 9545(b)(2).
       In order to be entitled to the exceptions to the PCRA’s one-year
       filing deadline, “the petitioner must plead and prove specific facts
       that demonstrate his claim was raised within the sixty-day time
       frame” under section 9545(b)(2).

Commonwealth v. Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citations

omitted).      Davis claims he is entitled to the timeliness exception found in

section 9545(b)(1)(iii), the “newly-recognized constitutional right” exception.

This exception applies 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.”   42   Pa.C.S.A.   §

9545(b)(1)(iii).2




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2We note Davis has met the 60-day statutory filing requirements of the PCRA.
See 42 Pa.C.S.A. § 9545(b)(2). Montgomery was decided on January 25,
2016, and revised on January 27, 2016. Davis filed the instant petition on
March 24, 2016, within the 60-day limit.

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       Here, the PCRA court determined Davis was not entitled to the

application of this timeliness exception and, therefore, it had no jurisdiction to

address his petition. We agree.

       Miller held that a juvenile could not be sentenced to a mandatory term

of life imprisonment without the possibility of parole.       The United States

Supreme Court in Montgomery ruled that Miller retroactively applied to

cases on state collateral review. Here, Davis was over the age of eighteen3

at the time of his offense and therefore he is not entitled to relief.       See

Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016) (Miller

inapplicable to appellant who was nineteen years old when he committed

murder); see also Commonwealth v. Cintora, 69 A.3 759, 764 (Pa. Super.

2013) (Miller does not create retroactive constitutional right for appellant

over the age of eighteen at time of crime, despite argument defendant was a

“technical juvenile” due to immature brain development).

       Further, Davis claims he cannot be sentenced to a “mandatory

minimum” sentence of life without parole, asserting that that Montgomery

requires retroactive application of Alleyne. Alleyne held that “any fact that,

by law, increases the penalty is an ‘element’ that must be submitted to the

jury and found beyond a reasonable doubt.” Alleyne, 570 U.S. at 103. Thus,

he argues, his mandatory life sentence is illegal. We disagree.



____________________________________________


3Davis was born on November 25, 1978, and his offense occurred on August
3, 1997. Thus, he was 19 years old at the time of the murder.

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     Montgomery held the rule announced in Miller, not Alleyne, applies

retroactively on collateral review. Our Supreme Court has held that Alleyne

“does not apply retroactively to cases pending on collateral review[.]”

Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).                 See

Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc)

(Alleyne applies only to those criminal cases pending on direct appeal when

it was decided). To date, there is no United States Supreme Court decision

holding that Alleyne applies retroactively to untimely PCRA petitions.

Moreover, there was no judicial fact finding involved here. The mandatory life

sentence flowed directly from the finding that Davis had committed first-

degree murder. Thus, Alleyne does not apply to Davis.

     Davis’ PCRA petition is untimely and he has failed to establish that he is

entitled to an exception to the time bar. The PCRA court properly determined

it had no jurisdiction to address his claims, and it properly dismissed his

petition without a hearing. We find no error. Phillips, supra.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/2/18




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