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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
JOHN AIKENS,                                :
                                            :
                          Appellant         :     No. 2106 EDA 2014

                    Appeal from the PCRA Order July 1, 2014
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0406531-1993

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JULY 14, 2015

        Appellant, John Aikens, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas, dismissing his untimely request

for relief under the Post Conviction Relief Act1 (“PCRA”).     On appeal, he

contends his petition was timely pursuant to Miller v. Alabama, 132 S. Ct.

2455 (2012). We affirm.

        The PCRA court summarized the facts and procedural history of this

case as follows:

               [Appellant] was found guilty after a non-jury waiver
           trial of first degree murder, criminal conspiracy, and
           possession of an instrument of crime before the Honorable



*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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        Judge Jane Cutler Greenspan on July 7, 1994.[2] Also on
        July 7, 1994, [Appellant] was sentenced by Judge
        Greenspan to serve a life sentence on the murder
        conviction as well as to concurrent sentences of
        incarceration, which in the aggregate totaled seven and
        one-half to fifteen years. After [Appellant] filed his timely
        appeal, the Superior Court affirmed the judgment of
        sentence on July 26, 1995.[3] No further appeal was filed.

            [Appellant] filed his first pro se [PCRA] petition on
        March 4, 1996. Thereafter counsel was appointed, and the
        petition was denied[4] on May 2, 1997, after a hearing was
        held before Judge Greenspan on April 8, 1997. [Appellant]
        filed an appeal from that order on May 30, 1997. The
        Superior Court affirmed the [PCRA] court’s denial of relief
        on April 17, 1998. The Supreme Court denied allocatur on
        December 3, 1998.

           [Appellant] filed his [second] post conviction petition on
        June 12, 2013.

PCRA Ct. Op., 10/29/2014, at 1-2 (footnote omitted). On October 29, 2014,

the PCRA court determined Appellant’s second petition for post conviction

collateral relief was untimely and that none of the timeliness exceptions




2
 At the time of the homicide, Appellant was over the age of eighteen. PCRA
Ct. Op. at 4.
3
  Commonwealth v. Aikens, 2747 PHL 1994 (unpublished memorandum)
(Pa. Super. July 26, 1995).
4
  We note the PCRA court dismissed Appellant’s first petition. See
Commonwealth v. Aikens, 2307 Philadelphia 1997 (unpublished
memorandum at 3) (Pa. Super. April 17, 1998).




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applied.     Id. at 2.    The PCRA dismissed Appellant’s petition as untimely.

Order, 7/1/14. This timely appeal followed.5

      Appellant raises the following issue for review, reproduced verbatim:

            I. Did the lower Court err by denying the Appellants
            second and Subsequent PCRA Petition, where it was timely
            [filed] pursuant to, SEE: [42 Pa.C.S.A. § 9545
            (b)(i)(ii)(iii)(2)], and where the United States Court of
            Appeals for the Third Circuit granted that Petitioner has
            made a prima facie claim that the [claim] he seeks to
            present relies on a decision pursuant to, SEE [Miller v.
            Alabama; 132 S. Ct. 2455, 2460 (2012)], in which
            announced “a new rule of Constitutional law, made
            retroactive to cases on Collateral Review by the Supreme
            Court, that was previously unavailable. SEE: [28 U.S.C. §
            2244(b)(2)(A)] [Citing, SEE: [In re Pendleton; 732 F.3d
            280 (3d. Cir. 2013)]???

Appellant’s Brief at 3.

      Appellant argues his petition was timely and alleges the violation of a

constitutional right recognized after the expiration of the one-year time-bar,

which he claims applies retroactively.     Id. at 10.   He avers Miller held it

unconstitutional to impose a life sentence without the possibility of parole

upon a juvenile convicted of murder.

      Before examining the merits of Appellant’s claims, we consider

whether the PCRA court had jurisdiction to entertain the underlying PCRA

petition.

               We . . . turn to the time limits imposed by the PCRA, as
            they implicate our jurisdiction to address any and all of

5
  Appellant was not ordered to file a Pa.R.A.P. 1925(b) statement of errors
complained of on appeal.



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        Appellant’s claims. To be timely, a PCRA petition must be
        filed within one year of the date that the petitioner’s
        judgment of sentence became final, unless the petition
        alleges and the petitioner proves one or more of the
        following 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

                  (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).

           We emphasize that it is the petitioner who bears the
        burden to allege and prove that one of the timeliness
        exceptions applies. In addition, a petition invoking any of
        the timeliness exceptions must be filed within 60 days of
        the date the claim first could have been presented. 42
        Pa.C.S. § 9545(b)(2). . . .

Commonwealth v. Marshall, 947 A.2d 714, 719-20 (Pa. 2008) (some

citations omitted) (emphasis added). Our Supreme Court has stated:

        This Court has repeatedly stated that the PCRA timeliness
        requirements are jurisdictional in nature and, accordingly,
        a PCRA court cannot hear untimely PCRA petitions. In
        addition, we have noted that the PCRA confers no
        authority upon this Court to fashion ad hoc equitable
        exceptions to the PCRA time-bar in addition to those
        exceptions expressly delineated in the Act. We have also



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         recognized     that    the   PCRA’s   time   restriction   is
         constitutionally valid.

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations

and quotation marks omitted).

      Under the PCRA, “all petitions, including second and subsequent ones,

must be filed within one year of the date on which the judgement becomes

final, unless one of the statutory exception . . . applies.” Commonwealth

v. Yarris, 731 A.2d 581, 586 (Pa. 1999).       On July 26, 1995, this Court

affirmed his judgment of sentence. Appellant did not seek further review.

Thus, his judgment became final on August 28, 1995.6        See 42 Pa.C.S §

9545(b)(3) (providing “a judgment becomes 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 [ ]”. Appellant had until August 28, 1996, to file his PCRA

petition.7   See 42 Pa.C.S. § 9545(b)(1); Marshall, 947 A.2d at 719.

Therefore, because he filed the instant PCRA on June 12, 2013, it is patently

untimely.


6
 August 26, 1995 fell on a Saturday. Therefore, his judgment of sentence
became final on August 28, 1995. See 1 Pa.C.S. § 1908.
7
  “Effective January 16, 1996, the PCRA was amended to require a petitioner
to file any PCRA petition within one year of the date the judgment of
sentence becomes final.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.
Super. 2014). This was Appellant’s second PCRA petition, thus it does not
qualify for the grace proviso allowing a first PCRA to be filed by January 16,
1997. Id. at 4-5.



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      Appellant argues his petition is timely pursuant to Miller.             In

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), cert. denied, 134

S. Ct. 2724 (2014), our Supreme Court held that Miller was not retroactive

and opined:

         Here, applying settled principles of appellate review,
         nothing in [Appellant’s] arguments persuades us that
         Miller’s proscription of the imposition of mandatory life-
         without-parole sentences upon offenders under the age of
         eighteen at the time their crimes were committed must be
         extended to those whose judgments of sentence were final
         as of the time of Miller’s announcement.

Id. at 11.

      The PCRA court reasoned that “[e]ven if [Appellant] had been under

the age of eighteen and had filed his petition within sixty days of the date

Miller was handed down, he still would have the burden of establishing that

this [c]ourt had jurisdiction to address his petition[,]” because Miller did not

apply retroactively. PCRA Ct. Op. at 4 (unpagniated). We agree.

      Our    Pennsylvania   Supreme    Court   held   Miller   did   not   apply

retroactively.   See Cunningham, 81 A.3d at 11.         Therefore, the section

9545(b)(1)(iii) exception to the PCRA’s time restrictions is unavailing. Thus,

the PCRA court lacked jurisdiction to consider Appellant’s claims.          See

Robinson, 837 A.2d at 1161. Accordingly, the PCRA court’s ruling is free of

legal error. See Marshall, 947 A.2d at 719.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/14/2015




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