J-S74037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    PHILLIP OCAMPO                             :
                                               :
                       Appellant               :   No. 865 EDA 2019

            Appeal from the PCRA Order Entered February 15, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0410962-1994


BEFORE:      BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                        FILED JANUARY 13, 2020

        Appellant, Phillip Ocampo, appeals from the February 15, 2019, order

entered in the Court of Common Pleas of Philadelphia County, which dismissed

his first petition filed under the Post-Conviction Relief Act (“PCRA”), 42

Pa.C.S.A. §§ 9541-9546, on the basis it was untimely filed. After a careful

review, we affirm.

        The relevant facts and procedural history are as follows: In early March

of 1994, Appellant and John Spaddy went to the home of Magdalia Garcia, and

they discussed burglarizing Gilberto Torres, who they believed had a large

amount of cash and marijuana. After Appellant and Spaddy left the Garcia

residence, they met up with their friend, Corey Jones. The trio, at least two


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*   Former Justice specially assigned to the Superior Court.
J-S74037-19


of whom were armed, went to the apartment building where Torres lived in

order to carry out the burglary plan.

      While the three men were in the apartment, Torres, who was

accompanied by his nephew, a cousin, and a friend, returned home. Upon

hearing Torres’ return, the three intruders hid in a vacant front room on the

second floor and, when Torres and his companions entered the room, Spaddy

opened fire, killing one man and seriously injuring another.

      Appellant, who was eighteen years old at the time of the murder, was

charged with various offenses, and following a jury trial at which Appellant

was represented by counsel, Appellant was convicted of second-degree

murder, aggravated assault, burglary, criminal conspiracy, and possession of

an instrument of crime.     He was sentenced to life in prison without the

possibility of parole.

      Appellant filed a direct appeal to this Court, and on January 7, 1997, we

affirmed his judgment of sentence. See Commonwealth v. Ocampo, 03587

Philadelphia 1995 (Pa.Super. filed Jan. 7, 1997) (unpublished memorandum).

Appellant did not file a petition for allowance of appeal with our Supreme

Court.

      On August 9, 2012, Appellant filed a pro se PCRA petition, which he

supplemented pro se on March 25, 2016. On March 21, 2018, counsel entered

an appearance on behalf of Appellant, and counsel filed an amended PCRA

petition. On January 15, 2019, the Commonwealth filed a response to the


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PCRA petition, and on January 17, 2019, the PCRA court provided Appellant

with notice of its intent to dismiss the petition without an evidentiary hearing

on the basis it was untimely.

      On February 15, 2019, Appellant filed a counseled response to the PCRA

court’s notice of its intent to dismiss, and by order entered on February 15,

2019, the PCRA court dismissed Appellant’s first PCRA petition on the basis it

was untimely filed. This timely, counseled appeal followed. The PCRA court

did not direct Appellant to file a Pa.R.A.P. 1925(b) statement, and

consequently, Appellant did not file a statement. However, the PCRA court

filed a Pa.R.A.P. 1925(a) opinion on June 27, 2019.

      On appeal, Appellant has set forth the following issues in his “Statement

of the Questions Involved” (verbatim):

      I.     Did the Court of Common Pleas err in rejecting Appellant’s
             claim that the right established in Miller v. Alabama
             applies to petitioner who possessed those characteristics of
             youth identified as constitutionally significant for sentencing
             purposes by the U.S. Supreme Court?
      II.    Did the Court of Common Pleas abuse its discretion in failing
             to hold an evidentiary hearing where petitioner had raised
             issues of material fact that entitle him to relief?
      III.   Did the Court of Common Pleas err in declining to construe
             Appellant’s petition as a petition for writ of habeas corpus
             even though his claims are not cognizable under the PCRA?
      IV.    Did the Court of Common Pleas abuse its discretion in failing
             to hold an evidentiary hearing to determine whether
             Appellant’s petition for writ of habeas corpus entitled him to
             relief under the United States and Pennsylvania
             Constitutions?

Appellant’s Brief at 4.


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      In addressing Appellant’s issues, we are mindful that:

      This Court’s standard of review regarding an order denying a
      petition under the PCRA is whether the determination of the PCRA
      court is supported by the evidence of record and 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. Walls, 993 A.2d 289, 294-95 (Pa.Super. 2010) (citations

omitted).

      In the instant case, the PCRA court concluded that Appellant’s petition

was untimely filed and failed to plead any valid exception to the timeliness

exceptions of the PCRA. Pennsylvania law is clear that no court has jurisdiction

to hear an untimely PCRA petition. Commonwealth v. Robinson, 575 Pa.

500, 837 A.2d 1157 (2003). Accordingly, at this juncture, we must determine

whether Appellant’s August 9, 2012, PCRA petition was timely filed under the

PCRA.

      The most recent amendments to the PCRA, effective January 19, 1996,

provide that a PCRA petition, including a second or subsequent petition, shall

be filed within one year of the date the underlying judgment becomes final.

42 Pa.C.S.A. § 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

the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition


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will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a petition

must allege and the petitioner must prove:

      (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 the law of this Commonwealth or the Constitution or
               law 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.A. § 9545(b)(1)(i)-(iii).

      “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008) (citation omitted).

      In the case sub judice, this Court affirmed Appellant’s judgment of

sentence on January 7, 1997, and Appellant did not file a petition for allowance

of appeal with our Supreme Court. Accordingly, his judgment of sentence

became final on February 6, 1997, when the thirty-day time period for filing a

petition for allowance of appeal with our Supreme Court expired.        See 42

Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113. Appellant had one year from that

date, or until February 6, 1998, to file a timely PCRA petition.        See 42

Pa.C.S.A. § 9545(b). However, Appellant did not file the instant PCRA petition




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until August 9, 2012, and, thus, it is patently untimely. See 42 Pa.C.S.A. §

9545(b)(1).1

       This does not end our inquiry, however, as Appellant alleges he is

entitled to the timeliness exception under Subsection 9545(b)(1)(iii) pursuant

to Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455 (2012), and

Montgomery v. Louisiana, ____ U.S. ____, 136 S.Ct. 718 (2016).

       In 2012, the Supreme Court of the United States 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). In Montgomery,

supra, the High Court determined that Miller announced a new substantive

rule of law that applies retroactively. Montgomery, 136 S.Ct. at 736.

       Here, Appellant was not under the age of 18 when he participated in the

burglary/murder.       In fact, Appellant admits as much in his brief. See

Appellant’s Brief at 9-10 (admitting Appellant was 18 years old when he

committed his crimes). This Court has held that, since Miller does not apply

to a petitioner who was 18 years or older at the time he committed murder,

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1 The PCRA provides that where a petitioner’s judgment of sentence became
final on or before the effective date of the amendments (January 16, 1996),
a special grace proviso allows first PCRA petitions to be filed by January 16,
1997. See Commonwealth v. Alcorn, 703 A.2d 1054, 1056-57 (Pa.Super.
1997) (explaining application of PCRA timeliness proviso). Here, Appellant’s
judgment of sentence became final on February 6, 1997, which is after the
effective date of the amendments. Thus, he is not entitled to the proviso.



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such petitioner cannot rely on Miller (or Montgomery) to avail himself of the

time-bar exception in Subsection 9545(b)(1)(iii). See Commonwealth v.

Lee, 206 A.3d 1, 7-11 (Pa.Super. 2019) (en banc) (holding Miller applies only

to those who were under the age of eighteen at the time they committed the

offense); Commonwealth v. Montgomery, 181 A.3d 359, 366 (Pa.Super.

2018) (en banc) (holding that the High Court’s ruling in Montgomery v.

Louisiana did not extend Miller’s holding to individuals who committed

homicides after they reached the age of 18).

       Appellant seeks to avail himself of the holding of Miller by asserting

that, “at the time of his offense, he possessed the characteristics of youth that

render a life-without-parole sentence unconstitutional[.]” Appellant’s Brief at

9. We conclude this is an argument for an extension of the holding 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. This Court has

repeatedly rejected such a claim, and, as we clearly stated in Lee, “age is the

sole factor in determining whether Miller applies to overcome the PCRA time-

bar…[and] Miller does not afford collateral relief to a petitioner who was over

the age of 18 at the time of his or her offense.” Lee, 206 A.3d at 4, 11.2


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2 Appellant requests that we overrule and/or reconsider this Court’s en banc
decision in Lee. We are neither inclined nor permitted to do so. See Marks
v. Nationwide Ins. Co., 762 A.2d 1098, 1101 (Pa.Super. 2000) (explaining
that the Superior Court has “long held that as long as the [precedential]



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Accordingly, since Appellant was 18 years old at the time of his offense, he

cannot rely on Miller (or Montgomery) to meet a timeliness exception.3

       To the extent Appellant contends the PCRA court erred in dismissing his

PCRA petition without holding an evidentiary hearing, we note “[t]he PCRA

court need not hold a hearing on every issue [a petitioner] raises, as a hearing

is only required on ‘genuine issues of material fact.’” Commonwealth v.

Albrecht, 606 Pa. 64, 67, 994 A.2d 1091, 1093 (2010 (quotation omitted).

Here, there was no dispute as to Appellant’s age at the time he committed his

offenses, and accordingly, there was no “genuine issue of material fact.” Thus,

the PCRA court did not err in dismissing Appellant’s PCRA petition without an

evidentiary hearing.

       Finally, to the extent Appellant contends the PCRA court erred in treating

his petition raising the Miller/Montgomery issue under the auspices of the

PCRA, as opposed to a habeas corpus petition, we disagree.




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decision has not been overturned by the Supreme Court, a decision by our
Court remains binding precedent”).

3 Appellant also suggests that, assuming, arguendo, his sentence of life in
prison without parole does not violate the Eighth Amendment since he was 18
years old when he committed his crime, the sentence constitutes “cruel
punishment” under Article I, Section 13 of the Pennsylvania Constitution, and,
therefore he is entitled to a timeliness exception. We disagree. See
Commonwealth v. Yasipour, 957 A.2d 734, 743 (Pa.Super. 2008) (holding
Pennsylvania’s prohibition of cruel punishment is coextensive with the Eighth
and Fourteenth Amendments of the United States Constitution).


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      The PCRA provides: “The action established in this subchapter shall be

the sole means of obtaining collateral relief and encompasses all other

common law and statutory remedies for the same purpose that exist when

this subchapter takes effect, including habeas corpus and coram nobis.” 42

Pa.C.S.A. § 9542. Thus, where a petitioner’s claim is cognizable under the

PCRA, the court must analyze the petition under the auspices of the PCRA.

Commonwealth v. Taylor, 65 A.3d 462 (Pa.Super. 2013).

      In the case sub judice, Appellant asserted the lower court had no

authority to impose upon him a sentence of life imprisonment without parole.

This presents a challenge to the legality of his sentence, which is a claim

cognizable under the PCRA. See Commonwealth v. Beck, 848 A.2d 987,

989 (Pa.Super. 2004) (“Issues concerning the legality of sentence are

cognizable under the PCRA.”). Therefore, the PCRA court properly treated

Appellant’s   petition   as   a   petition   for   relief   under   the   PCRA.   See

Commonwealth v. Eller, 569 Pa. 622, 807 A.2d 838, 842-43 (2002) (any

claim cognizable under the PCRA must be brought under the PCRA and not

through habeas corpus).

      For all of the foregoing reasons, we affirm the PCRA court’s order

dismissing Appellant’s PCRA petition.

      Affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/20




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