J-E02005-17

                               2018 PA Super 54

    COMMONWEALTH OF PENNSYLVANIA,                IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

    STEPHEN MONTGOMERY,

                          Appellant                   No. 938 WDA 2016


                  Appeal from the Order Dated June 2, 2016
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0017226-2000

BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, SHOGAN, LAZARUS,
        OLSON, OTT, STABILE AND DUBOW, JJ.

OPINION BY OLSON, J.:                                FILED MARCH 14, 2018

       Appellant, Stephen Montgomery, appeals from the order dated June 2,

20161 dismissing his fourth petition filed pursuant to the Post-Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We consider in this case whether

PCRA courts have jurisdiction to address collateral petitions despite the

pendency of a previously filed petition challenging the same judgment of

sentence.     We hold that PCRA courts possess jurisdiction to decide

subsequently filed petitions under these circumstances. As to the merits of

this appeal, we conclude that the PCRA court properly characterized

Appellant’s fourth filing as a PCRA petition. Moreover, we hold that Miller v.


1 The CPCMS docket indicates that the order was entered on June 3, 2016;
however, the certified record docket indicates that the order was entered on
June 6, 2016. For simplicity, we refer to the date the order was signed – June
2, 2016.
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Alabama, 567 U.S. 460 (2012) and Montgomery v. Louisiana, 136 S.Ct.

718 (2016) permit sentencing an individual to a mandatory term of life

imprisonment without the possibility of parole (“LWOP”) if that individual was

at least 18 years old at the time of the offense. As Appellant was 22 years

old at the time of the offense in question, the new rule of constitutional law

announced in Miller, and held retroactive by Montgomery, does not apply in

this case. Accordingly, we affirm.

      The factual background of this case is as follows. On November 4, 2000,

James Carter (“Carter”) and George Maxwell (“Maxwell”) attempted to visit a

club in McKeesport; however, the club was closed when they arrived. While

waiting for a jitney ride home, Carter and Maxwell observed Kijafi Fuqua

(“Fuqua”) jumping on the hood of his vehicle while singing and dancing to the

music emanating from the vehicle. Carter then saw an individual he knew

sitting in an SUV across the street from the jitney station. Carter walked over

and began speaking to the individual.

      At this time, Carter noticed Appellant walk into the middle of the street

with a firearm while looking at Fuqua. Fuqua got off the hood of his vehicle

and opened his trunk.      Maxwell then crossed the street to speak with

Appellant.    The conversation became heated and Appellant struck Maxwell

with the firearm. This strike caused Maxwell and the firearm to fall to the

ground.      Appellant then began kicking Maxwell.    Soon thereafter, Trent

Thompson joined in kicking Maxwell. Appellant retrieved the firearm from the



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street and hit Maxwell in the head with the firearm.       Appellant then shot

Maxwell in the neck, fatally wounding him. Appellant was 22 years old at the

time of this incident.

        The procedural history of this case is as follows. On January 19, 2001,

the Commonwealth charged Appellant via criminal information with twelve

offenses including, inter alia, criminal homicide.2      On October 24, 2002,

Appellant was convicted of first-degree murder3 and related crimes.          On

January 28, 2003, the trial court sentenced Appellant to an aggregate term of

LWOP. The trial court was required, by statute, to impose a LWOP sentence

for the first-degree murder conviction.     See 18 Pa.C.S.A. § 1102(a); 61

Pa.C.S.A. § 6137(a)(1).

        On direct appeal, this Court affirmed Appellant’s judgment of sentence

and our Supreme Court denied allowance of appeal.          Commonwealth v.

Montgomery,        872    A.2d   1273    (Pa.   Super.    2005)   (unpublished

memorandum), appeal denied, 885 A.2d 532 (Pa. 2005). On September 26,

2006, Appellant filed a timely, counseled first PCRA petition. On July 29, 2008,

after an evidentiary hearing, the PCRA court denied the petition. This Court

affirmed the denial of PCRA relief and our Supreme Court denied allowance of

appeal. Commonwealth v. Montgomery, 986 A.2d 1260 (Pa. Super. 2009)

(unpublished memorandum), appeal denied, 991 A.2d 311 (Pa. 2010).


2   18 Pa.C.S.A. § 2501(a).

3   18 Pa.C.S.A. § 2502(a).


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      On November 13, 2014, Appellant filed a document that the PCRA court

properly treated as his second, pro se PCRA petition. On January 21, 2015,

the PCRA court dismissed the petition.     This Court dismissed Appellant’s

appeal from that order.   Commonwealth v. Montgomery, 379 WDA 2015

(Pa. Super. June 26, 2015).

      On June 29, 2015, Appellant filed a pro se petition for a writ of habeas

corpus. The PCRA court treated the filing as his third PCRA petition.   While

that petition was pending before the PCRA court, Appellant filed his fourth,

pro se, PCRA petition. By order dated June 2, 2016, the PCRA court dismissed

the fourth petition as untimely. This timely appeal followed.4

      This case was originally submitted to a three-judge panel of this Court.

See Superior Court Operating Procedure § 65.36(A). On April 12, 2017, this

Court sua sponte ordered that this case be heard en banc and remanded the

case to the PCRA court for the appointment of counsel. This Court directed

counsel to address, in addition to any other issues deemed meritorious,

whether a PCRA court possesses subject matter jurisdiction over a subsequent

PCRA petition when a previous PCRA petition regarding the same judgment of

sentence is pending before the PCRA court. Prior, three-judge panels of this

Court reached divergent conclusions regarding this issue in unpublished

memorandum decisions. Compare, e.g., Commonwealth v. Hardy, 135


4The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure
1925(b).


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A.3d   647,   2015   WL   7737688,     *6   (Pa.   Super.   2015)   (unpublished

memorandum) with Commonwealth v. Walton, 135 A.3d 653, 2015 WL

8197240, *1 n.2 (Pa. Super. 2015).           This case presents a vehicle to

definitively resolve the issue and is now ripe for disposition.

       Appellant presents three issues for our review:

       1. Whether the PCRA court had jurisdiction to address a
       subsequent PCRA petition while a prior PCRA petition was still
       pending [before the PCRA court]?

       2. Whether Appellant, a 22[-]year[-]old adult at the time his crime
       was committed, can rely on Miller . . . to satisfy the [new
       constitutional rule] timeliness exception to the PCRA?

       3. Whether Appellant is entitled to habeas corpus relief because
       the PCRA prohibits Appellant from challenging the legality of his
       sentence and Appellant continues to serve an illegal mandatory
       [LWOP] sentence[?]

Appellant’s Substitute Brief at 5.

       In his first issue, which this Court directed counsel for both parties to

brief, Appellant argues that a PCRA court may exercise subject matter

jurisdiction over two PCRA petitions relating to the same judgment of sentence

at the same time.      The Commonwealth agrees with Appellant that the

pendency of a prior PCRA petition does not divest the PCRA court of subject

matter jurisdiction to consider a subsequent PCRA petition. For the reasons

set forth below, we agree with Appellant and the Commonwealth regarding

this issue.

       As noted above, Appellant’s third PCRA petition was pending before the

PCRA court when Appellant filed his fourth PCRA petition. Some prior three-


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judge panels of this Court have held that a PCRA court lacks subject matter

jurisdiction over a fourth PCRA petition in these circumstances because of the

pendency of the third PCRA petition. Other three-judge panels of this Court

have reached the opposite conclusion and held that the pendency of a prior

petition before a PCRA court does not divest the PCRA court of jurisdiction

over a subsequent PCRA petition.

      The confusion over this issue stems from two prior Supreme Court

decisions addressing a PCRA court’s jurisdiction over subsequent PCRA

petitions.   In Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000), our

Supreme Court held that “a subsequent PCRA petition cannot be filed until the

resolution of review of the pending PCRA petition by the highest state court in

which review is sought, or upon the expiration of the time for seeking such

review.” Id. at 588. Our Supreme Court reasoned that “[a] second appeal

cannot be taken when another proceeding of the same type is already

pending.”    Id. (citation omitted).   Where a petitioner attempts to raise a

subsequent, independent claim for relief during the pendency of an earlier

PCRA petition, his or her “only option is to raise it within a second PCRA

petition filed within [60] days of the date of the order that finally resolves the

[pending] PCRA petition[.]” Commonwealth v. Steele, 961 A.2d 786, 808-

809 (Pa. 2008).

      More recently, however, in Commonwealth v. Porter, 35 A.3d 4 (Pa.

2012), our Supreme Court held that the pendency of a PCRA petition that was



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held in abeyance, at the request of the petitioner, did not divest the PCRA

court of jurisdiction to consider a subsequent PCRA petition filed in order to

satisfy the Antiterrorism and Effective Death Penalty Act of 1996’s state court

exhaustion requirement.5     Porter, 35 A.3d at 12-15.    Our Supreme Court

stated that “Lark does not speak to the PCRA court’s authority in situations

like this one, where no appeal was pending, and where a prior petition was

set aside, in accordance with the petitioner’s demand that it not be decided.”

Id. at 14 (emphasis added). Thus, Porter held that the pendency of a PCRA

petition did not affect the PCRA court’s jurisdiction to consider a subsequent

PCRA petition in a case where no PCRA appeal was pending and a prior petition

was being held in abeyance at the petitioner’s request. Cf. Commonwealth

v. McCann, 478 A.2d 883, 884 (Pa. Super. 1984) (The holding of a case “must

be read in the context of its facts.”).

        Neither our Supreme Court nor this Court (in a published decision) has

directly addressed whether Porter announced a new general rule or whether

it announced a narrow exception to Lark.        In other words, no reported

decision in this Commonwealth has considered whether, in light of Porter and

Lark, a PCRA court ordinarily has the ability to consider a later-filed PCRA




5   See 28 U.S.C. § 2254(b)(1)(A).



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petition when a prior PCRA petition is pending before the PCRA court and is

not pending on appeal as in Lark.6

      Today, we answer the question by holding that our Supreme Court’s rule

in Porter applies even if the prior PCRA petition is not being held in abeyance

at the petitioner’s request.       Therefore, we hold that Lark precludes

consideration of a subsequent petition from the time a PCRA order is appealed

until no further review of that order is possible. Thus, Lark does not apply in

the circumstances here since the PCRA court addressed Appellant’s fourth

petition before it issued an order on his third petition.

      We begin with the plain language of Porter. When considering whether

the PCRA court had jurisdiction over Porter’s subsequent PCRA petition while

his prior PCRA petition was held in abeyance, our Supreme Court stated that

“Lark holds only that a PCRA [] court cannot entertain a new PCRA petition

when a prior petition is still under review on appeal[.]” Porter, 35 A.3d

at 14 (citations omitted; emphasis added). This statement did not have any

qualifiers regarding the previous petition being held in abeyance. Instead,

this was a broad statement that indicates that Lark only prohibits a PCRA

court from considering subsequent PCRA petitions from the time a notice of


6  This Court has previously held that a PCRA court has jurisdiction to consider
a PCRA petition immediately after it dismisses or denies a previously filed
PCRA petition so long as no appeal of that decision is pending.
Commonwealth v. Zeigler, 148 A.3d 849, 852 (Pa. Super. 2016). We do
not address that scenario in this opinion; instead we focus on the scenario
where a PCRA petition is pending before the PCRA court when the petitioner
files another PCRA petition.


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appeal is filed from a PCRA court’s order on the previous PCRA petition until

the petitioner (or Commonwealth) can no longer seek further appellate review

of that determination and the order, therefore, becomes final.

      Moreover, our Supreme Court explicitly held that, in some instances, it

is appropriate to delay ruling on a PCRA petition because of a pending case

before the United States Supreme Court and/or pending legislation before the

General Assembly. See id. at 16-18. This advice to PCRA courts would cause

significant jurisdictional dilemmas if a PCRA court were unable to exercise

jurisdiction over multiple PCRA petitions at the same time. As our Supreme

Court noted, its advice in this regard was meant to avoid such dilemmas. See

id. at 16.   Therefore, the plain language of Porter, and the surrounding

circumstances, indicate that Lark does not apply as broadly as language in

previous decisions may have indicated. Instead, Porter announced a new

general rule - a PCRA court may not entertain a new PCRA petition when a

prior petition is still under appellate review and, thus, is not final; however,

nothing bars a PCRA court from considering a subsequent petition, even if a

prior petition is pending, so long as the prior petition is not under appellate

review.

      This result is the only way that Porter is consistent with hornbook

principles of subject matter jurisdiction. It is axiomatic that parties cannot

confer subject matter jurisdiction on a court or tribunal where it otherwise

does not exist. See S.K.C. v. J.L.C., 94 A.3d 402, 409 (Pa. Super. 2014)



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(citations omitted). If we were to read Porter as holding that PCRA courts

possess subject matter jurisdiction over subsequent PCRA petitions when a

previous PCRA petition is being held in abeyance at the petitioner’s request,

but that they do not possess subject matter jurisdiction over subsequent PCRA

petitions when a previous PCRA petition is merely awaiting decision from the

PCRA court, that would essentially give petitioners the power to confer subject

matter jurisdiction upon the PCRA court (and likewise revoke such

conferment) by requesting that the previous PCRA petition be held in

abeyance (or no longer be held in abeyance). Such a holding would be so

contrary to the fundamental principles of subject matter jurisdiction as to be

absurd. Accordingly, we hold that PCRA courts are not jurisdictionally barred

from considering multiple PCRA petitions relating to the same judgment of

sentence at the same time unless the PCRA court’s order regarding a

previously filed petition is on appeal and, therefore, not yet final.7

       Having determined that the PCRA court was not precluded from

considering Appellant’s fourth PCRA petition because of the pendency of his

third PCRA petition, we turn to the merits of this appeal. In his second issue,

Appellant argues that the trial court erred in concluding that it lacked

jurisdiction over the petition because Appellant failed to plead and prove the


7 At oral argument, counsel requested that we provide guidance to PCRA
courts regarding the handling of multiple PCRA petitions. We decline this
invitation as we believe these issues are best left to the Criminal Procedure
Rules Committee.



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applicability of the new constitutional rule exception to the PCRA’s timeliness

requirement.

      “Crucial to the determination of any PCRA appeal is the timeliness of the

underlying petition.” Commonwealth v. Brown, 141 A.3d 491, 499 (Pa.

Super. 2016) (citation omitted).      The timeliness requirement for PCRA

petitions “is mandatory and jurisdictional in nature[.]” Commonwealth v.

Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citation omitted).

      A PCRA petition is timely if it is “filed within one year of the date the

judgment [of sentence] becomes final.” 42 Pa.C.S.A. § 9545(b)(1).           “[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 the

review.”   42 Pa.C.S.A. § 9545(b)(3).        Appellant’s judgment of sentence

became final on January 3, 2006.     See Sup. Ct. R. 13.     Appellant’s PCRA

petition was filed on March 3, 2016. Thus, the petition was patently untimely.

      An untimely PCRA petition may 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;

      (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.A. § 9545(b)(1). If an exception applies, a PCRA petition may be

considered if it is filed “within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2). “The petitioner bears the burden to

plead and prove an applicable statutory exception.”         Commonwealth v.

Hudson, 156 A.3d 1194, 1197 (Pa. Super. 2017), appeal denied, 170 A.3d

1007 (Pa. 2017).

      Appellant filed his fourth PCRA petition within 60 days of the United

States Supreme Court’s decision in Montgomery, which made its holding in

Miller retroactive. Appellant argues that, under Miller, it is illegal to sentence

an individual to a mandatory term of LWOP if he or she does not have a fully

developed brain.    Although Appellant was 22 years old at the time of the

instant offense, he argues that his brain was not fully developed.             Thus,

Appellant contends that he satisfied the new constitutional rule exception

because he is entitled to relief under Miller, which was made retroactive by

Montgomery. We disagree.

      This Court previously addressed this argument in Commonwealth v.

Furgess, 149 A.3d 90 (Pa. Super. 2016). This Court noted that Miller only

applies to defendants who were “under the age of 18 at the time of their

crimes.” Id. at 94, quoting Miller, 567 U.S. at 465. Moreover, as this Court

noted in Furgess, Appellant’s argument attempts to extend Miller to those


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adults whose brains were not fully developed at the time of their offense. See

Furgess, 149 A.3d at 94.        This argument fails, however, because “a

contention that a newly-recognized constitutional right should be extended to

others does not [satisfy the new constitutional rule exception to the PCRA’s

timeliness requirement.]”   Id. at 95 (internal alteration omitted; emphasis

removed), quoting Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super.

2013).

     Instead, the PCRA requires that the Supreme Court of the United States

or our Supreme Court extend the new right to a class of individuals, and make

the extension retroactive, in order to satisfy the new constitutional right

timeliness exception. 42 Pa.C.S.A. § 9545(b)(1)(iii). Montgomery merely

made Miller retroactive for juvenile offenders whose judgments of sentence

had already became final.     It did not extend Miller’s holding to those

individuals who committed homicides after they reached the age of 18.

Furgess, 149 A.3d at 95.

     Appellant argues that Furgess is distinguishable from the case at bar

because in Furgess the petitioner only raised a claim under the Eighth

Amendment while he also raises a claim under the Fourteenth Amendment’s

Equal Protection Clause. This argument, however, is misplaced. Neither the

Supreme Court of the United States nor our Supreme Court has held that

Miller announced a new rule under the Equal Protection Clause.       Instead,

Miller only announced a new rule with respect to the Eighth Amendment.



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Thus, contrary to Appellant’s assertion, his Equal Protection Clause argument

is also an attempt to extend Miller’s holding.

      Appellant correctly notes that Furgess is not binding upon this en banc

panel.   Nonetheless, we conclude that the three-judge panel’s analysis in

Furgess, set forth above, is correct and decline Appellant’s invitation to

overturn that decision. Therefore, the PCRA court correctly held that Appellant

failed to satisfy the new constitutional rule timeliness exception to the PCRA’s

one-year time bar. Accordingly, the PCRA court lacked jurisdiction to reach

the merits of the petition and correctly dismissed the petition without an

evidentiary hearing.

      In his final issue, Appellant argues that if the PCRA court properly found

that he was not entitled to relief under the PCRA, then it erred in treating his

filing as a PCRA petition. Instead, he argues that the PCRA court should have

treated the filing as a petition for a writ of habeas corpus and granted the

petition. Whether a filing is properly construed as a PCRA petition or a petition

for a writ of habeas corpus is a purely legal question. Therefore, our standard

of review is de novo and our scope of review is plenary.

      The PCRA

      provides for an action by which persons convicted of crimes they
      did not commit and persons serving illegal sentences may obtain
      collateral relief. The action established in [the PCRA] 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 [the PCRA] takes effect, including habeas corpus and
      coram nobis.



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42 Pa.C.S.A. § 9542.

      Our Supreme Court has explained that

      [t]he plain language of Section 9542 demonstrates quite clearly
      that the General Assembly intended that claims that could be
      brought under the PCRA must be brought under that Act. No
      other statutory or common law remedy “for the same purpose” is
      intended to be available; instead, such remedies are explicitly
      “encompassed” within the PCRA.

Commonwealth v. Descardes, 136 A.3d 493, 499 (Pa. 2016) (internal

alteration and citation omitted; emphasis removed). Therefore, the question

is whether Appellant’s particular claim – an illegal sentencing claim – is a claim

that is cognizable under the PCRA.      See id.   It clearly is. 42 Pa.C.S.A. §

9543(a)(2)(vii); see Commonwealth v. Ciccone, 152 A.3d 1004, 1006 (Pa.

Super. 2016) (en banc), appeal denied, 169 A.3d 564 (Pa. 2017).

Accordingly, the PCRA court properly construed Appellant’s petition as his

fourth PCRA petition.

      In sum, we hold that PCRA courts have jurisdiction to consider multiple

PCRA petitions relating to the same judgment of sentence at the same time

so long as a prior petition is not under appellate review and, therefore, not

yet final.8 As to the merits of this appeal, we hold that Miller did not announce


8 When a petitioner pleads the applicability of a timeliness exception under 42
Pa.C.S.A. § 9545(b)(1), the petition “shall be filed within 60 days of the date
the claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2). In Lark,
our Supreme Court held that when a prior PCRA petition is pending on appeal,
a subsequent PCRA petition must be filed within “[60] days of the date of the
order which finally resolves the previous PCRA [appeal], because this is the
first date the claim could have been presented.” Lark, 746 A.2d at 588



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a new rule of constitutional law which forbids mandatory LWOP sentences for

individuals who were at least 18 years old at the time of the offense. As such,

Appellant failed to plead and prove the applicability of an exception to the

PCRA’s timeliness requirement.        As the PCRA court properly treated

Appellant’s filing as a fourth PCRA petition subject to timeliness requirements,

the PCRA court lacked jurisdiction over the petition because it was untimely.

Accordingly, we affirm.

      Order affirmed.

      Bender, P.J.E., Bowes, Shogan, Ott, Stabile, and Dubow, JJ., join.

      Gantman, P.J., concurs in the result.

      Lazarus, J., concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/14/2018




(internal quotation marks and citation omitted). We note that, under our
holding today, even though an individual may have a PCRA petition pending
before the PCRA court, (i.e., not pending on appeal), the 60-day period is not
tolled. Thus, an individual must comply with the 60-day rule if he or she
wishes to file a new petition that satisfies a timeliness exception even though
he or she has another petition pending before the PCRA court.


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