J-S69027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    DALE MADDEN-EL                             :
                                               :   No. 609 WDA 2017
                       Appellant

                  Appeal from the PCRA Order March 15, 2017
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0005127-1980


BEFORE:      BOWES, J., RANSOM, J., and STEVENS*, P.J.E.

MEMORANDUM BY RANSOM, J.:                             FILED JANUARY 12, 2018

        Appellant, Dale Madden-El, pro se appeals from the March 15, 2017

order dismissing, as untimely, his serial petition filed under the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        Following a jury trial, Appellant was found guilty of first-degree murder.1

In July 1981, Appellant was sentenced to a term of life imprisonment.

        Appellant timely filed a direct appeal, and this Court vacated his

sentence and remanded the matter for an evidentiary hearing on trial

counsel’s effectiveness.      Commonwealth v. Madden, 474 A.2d 690 (Pa.

Super. 1984) (unpublished memorandum). Upon conducting the evidentiary

hearing, the trial court determined that counsel was not ineffective, and

reimposed Appellant’s sentence of life imprisonment.             Appellant again
____________________________________________


1   18 Pa.C.S. § 2502(a).


* Former Justice specially assigned to the Superior Court.
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appealed, and this Court affirmed his judgment of sentence on December 20,

1985.      Commonwealth v. Madden, 506 A.2d 1337 (pa. Super. 1985)

(unpublished memorandum). Appellant did not appeal to the Supreme Court

of Pennsylvania.

        On February 20, 1987, Appellant pro se filed his first PCRA petition,

which was dismissed on October 20, 1988.        On September 25, 1989, this

Court affirmed the dismissal. Commonwealth v. Madden, 569 A.2d 1384

(Pa. Super. 1989) (unpublished memorandum).            Appellant's petition for

allocatur was denied. Commonwealth v. Madden, 584 A.2d 314 (Pa. 1990)

(table).

        On March 18, 2016, Appellant pro se filed the instant petition, seeking

relief based on Miller v. Alabama, 132 S. Ct. 2455 (2012) (finding mandatory

life sentences for juvenile offenders to violate the Eighth Amendment). Newly

appointed counsel reviewed the record and 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).        On February 14, 2017, after

reviewing the record and PCRA counsel’s no merit letter, the PCRA court issued

an order (1) permitting counsel to withdraw, (2) notifying Appellant that he

was no longer entitled to appointed counsel, and (3) advising Appellant how

he may proceed with his petition. See Order of Court, 2/14/2017. This order

did not comply with Pa.R.Crim.P. 907, as it did not give notice of the court’s

intent to dismiss the PCRA petition or state the reason for its dismissal. See

Pa.R.Crim.P. 907(1). Appellant filed a response. On March 15, 2017, the

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PCRA court dismissed Appellant’s petition without a hearing and characterized

its February 14, 2017 order as a notice of intent to dismiss. Appellant filed a

motion for reconsideration of the dismissal on March 30, 2017, to which the

court took no action.

       Appellant timely2 pro se appealed the dismissal of his PCRA petition and

filed a court-ordered Pa.R.A.P. 1925(b) statement. The PCRA court issued a

responsive opinion.

       Appellant raises the following issues for our review:

       1. DID THE PCRA COURT ERR AS A MATTER OF LAW WHEN IT
       DISMISSED THE PCRA PETITION?

       2. DID THE COURT BELOW HAVE JURISDICTION OVER THE
       MATTER UNDER 42 PA.C.S. § 6502, PENNSYLVANIA RULES OF
       CRIMINAL PROCEDURE RULE 108, AND 42 PA.C.S. § 931?

       3. DOES THE EIGHTH AMENDMENT TO THE UNITED STATES
       CONSTITUTION PROHIBIT THE SENTENCE OF MANDATORY LIFE
       WITHOUT PAROLE FOR INDIVIDUALS OVER THE AGE OF 17 BUT
       BELOW AGE 25?

       4. DOES THE EIGHTH AMENDMENT TO THE UNITED STATES
       CONSTITUTION PROHIBIT THE SENTENCE OF MANDATORY LIFE
       WITHOUT PAROLE FOR ADULTS CONVICTED OF MURDER?


____________________________________________


2 Appellant’s notice of appeal was docketed as filed by this Court on April 20,
2017, beyond the 30-day window to appeal the dismissal of his petition. See
Pa.R.A.P. 903(b). However, the instant appeal is timely as Appellant is
incarcerated and the envelope attached to his notice of appeal is postmarked
for April 7, 2017. See Commonwealth v. Jones, 700 A.2d 423, 426 (Pa.
1997) (An appeal by a pro se prisoner is deemed filed on the date the he
deposits the appeal with prison authorities or places is it in the mailbox, even
though appeal is actually received by the court after the deadline for filing an
appeal).

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      5. DOES THE FOURTEENTH AMENDMENT TO EQUAL PROTECTION
      CLAUSE PROHIBIT THE SENTENCE OF MANDATORY LIFE
      WITHOUT PAROLE FOR PERSONS CONVICTED OF MURDER IN THE
      COMMONWEALTH OF PENNSYLVANIA?

Appellant’s Brief at 5 (some formatting added).

      We review an order denying a petition under the PCRA to determine

whether the findings of the PCRA court are supported by the evidence of

record and are free of legal error.   Commonwealth v. Ragan, 923 A.2d

1169, 1170 (Pa. 2007). We afford the court’s findings deference unless there

is no support for them in the certified record. Commonwealth v. Brown, 48

A.3d 1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson,

995 A.2d 1184, 1189 (Pa. Super. 2010)).

      Initially, we must address the PCRA timeliness requirements.          The

timeliness of Appellant’s petition implicates our jurisdiction and may not be

altered or disregarded in order to address the merits of his claim.         See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for relief, including second and subsequent petitions, must

be filed within one year of the date on which the judgment of sentence

becomes final. Id. There are three statutory exceptions:

      (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


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       (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).         Any petition attempting to invoke these

exceptions “shall be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2).

       Appellant’s petition is untimely, and he has failed to establish an

exception to the timeliness requirements of the PCRA.3 Appellant seeks relief

based on Miller, which held that mandatory life sentences imposed on juvenile

offenders violates the Eighth Amendment's prohibition on “‘cruel and unusual

punishments.’” Miller 132 S. Ct. at 2460. In Montgomery v. Louisiana,

136 S. Ct. 718 (2016), the U.S. Supreme Court determined that Miller

announced a new substantive rule that applied retroactively. Montgomery,

136 S. Ct. 718. Appellant filed his petition within 60 days of the Montgomery

decision; however, the precedent is inapplicable to Appellant as he concedes

____________________________________________


3 Appellant’s petition is patently untimely. Appellant’s judgment of sentence
became final on January 19, 1986, at the expiration of his thirty days to file
an appeal to our Supreme Court. See 42 Pa.C.S. § 9545(b)(3) (a judgment
of sentence becomes final at the conclusion of direct review or the expiration
of the time for seeking the review); Pa.R.A.P. 1113. Appellant filed the instant
petition more than nineteen years later. We note further that Appellant’s
judgment of sentence became final prior to the amendments to the PCRA
enacted November 17, 1995; however, this has no bearing on the instant
analysis, as the instant petition is not Appellant’s first. Commonwealth v.
Fenati, 732 A.2d 625, 627 (Pa. Super. 1999) (where a defendant's judgment
of sentence became final before the effective date of the amendments, his
first PCRA petition will be considered timely if it is filed within one year of the
effective date of the amendments [January 16, 1996]); Act of November 17,
1995, P.L. 1118, No. 32 (Spec. Sess. No. 1) § 3(1).

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that he was twenty-four at the time of commission of the underlying crimes.

Appellant’s Brief at 13. As this Court noted in Commonwealth v. Furgess,

149 A.3d 90, 94 (Pa. Super. 2016), the constitutional rule rendering

mandatory sentences of life imprisonment without possibility of parole on

juveniles unconstitutional applies only to those defendants who were under

eighteen when offenses were committed.

      Additionally, Appellant correctly asserts that the PCRA court failed to

comply with Pa.R.Crim.P. 907, and has preserved the claim for review.

“However, ‘our Supreme Court has held that where the PCRA petition is

untimely, the failure to provide such notice is not reversible error.’”

Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super. 2014) (quoting

Commonwealth v. Davis, 916 A.2d 1206, 1208 (Pa. Super. 2007)).

Accordingly, the PCRA court’s failure to provide the requisite Rule 907 notice

does not entitle Appellant to relief.

      Consequently, the PCRA court was without jurisdiction to review the

merits of Appellant’s claims and properly dismissed his petition. See Ragan,

932 A.2d at 1170.

      Order affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2018




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