J-S51043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    COREY C. CONAWAY                           :
                                               :
                      Appellant                :   No. 3758 EDA 2016

                 Appeal from the PCRA Order November 8, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005366-2010


BEFORE:      BOWES, SHOGAN, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                          FILED AUGUST 14, 2017


        Appellant Corey C. Conaway appeals pro se from the Order entered in

the Court of Common Pleas of Philadelphia County on November 8, 2016,

dismissing as untimely his second petition filed pursuant to the Post

Conviction Relief Act (PCRA).1 Because this petition is untimely without an

applicable exception, we affirm.

        The PCRA court aptly set forth the relevant facts and procedural

history herein as follows:

              On February 10, 2012, following a jury trial before this
        [c]ourt, [Appellant] was convicted of one count of first degree
        murder, (18 Pa.C.S. § 2502(a)), one count of robbery (18
        Pa.C.S. § 3701(a)(1)(i)), one count of burglary (18 Pa.C.S. §
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S.A. §§ 9541-9546.
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       3502(a)), and one count of possessing an instrument of crime
       (18 Pa.C.S. 907(a)). The [c]ourt immediately imposed the
       mandatory sentence of life in prison for the murder charge (18
       Pa.C.S. § 1102(a)(1)). No further penalty was imposed on the
       remaining charges.[2]
              On March 9, 2012, [Appellant] filed a pro se Notice of
       Appeal. The Court subsequently held a hearing, pursuant to
       Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998), on April 24,
       2012, and permitted defendant to proceed pro se on appeal with
       standby counsel. On November 5, 2012, the Superior Court
       dismissed [Appellant’s] appeal for failure to file a brief.
              [Appellant] then filed a pro se petition under the Post-
       Conviction Relief Act ("PCRA") on November 4, 2013 ("First
       Petition"). The Court appointed counsel to represent [Appellant]
       on May 20, 2014. On June 3, 2014, pursuant to Commonwealth
       v. Finley, 550 A.2d 213 (Pa.Super. 1988), [Appellant’s] counsel
       filed a letter stating there was no merit to [Appellant’s] claims
       for collateral relief. On September 19, 2014, the [c]ourt formally
       dismissed [Appellant’s] PCRA Petition and granted counsel's
       motion to withdraw his appearance. [Appellant] appealed, and
       the Superior Court affirmed the dismissal on October 5, 2015.
              [Appellant] then filed a second pro se petition under the
       PCRA on February 19, 2016 ("Second Petition"), raising the sole
       claim that his mandatory life sentence was unconstitutional since
       he was a "minor/juvenile" at the time of his offense. His claim
       was based on the decisions of the Supreme Court of the United
       States in Miller v. Alabama, 132 S.Ct. 2455 (2012) and
       Montgomery v. Louisiana, 136 S.Ct. 718 (2016). Second Petition
       at ¶ 10. Miller held that mandatory life imprisonment without
       parole violates the Eighth Amendment to the United States
       Constitution for defendants under the age of 18 at the time of
       the offense, and Montgomery held that Miller applies
       retroactively to cases on state collateral review. Miller, 132 S.Ct.
       at 2460; Montgomery, 136 S.Ct. at 732. On July 5, 2016, after
       reviewing [Appellant’s] Second Petition, this [c]ourt ruled that
       [Appellant’s] petition was untimely. That day, pursuant to
       Pa.R.Crim.P. 907, the [c]ourt issued notice of its intent to
       dismiss the petition without a hearing ("Second 907 Notice"). On
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2
  The charges arose following Appellant’s brutally beating to death his elderly
neighbor with a cast-iron frying pan after he broke into her home and stole
items therefrom along with the victim’s automobile.



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      November 8, 2016, the [c]ourt entered an order dismissing
      [Appellant’s] Second Petition.

Trial Court Opinion, filed 1/12/17, at 1-2.

      Appellant filed a timely notice of appeal with this Court, and the

parties have complied with Pa.R.A.P. 1925. In his brief, Appellant presents

the following questions for our review:


      (1) Whether the PCRA [c]ourt err’d [sic] in dismissing
      Appellant’s subsequent PCRA without a hearing where Appellant
      met the plain language of 42 Pa.C.S.A. § 9545(b)(ii)(iii)(2)?

      (2) Whether the PCRA [c]ourt err’d [sic] in dismissing
      Appellant’s PCRA without a hearing where Appellant challenged
      his now unconstitutional mandatory Life Sentence pursuant to
      Montgomery v. Louisiana, supra, and this Commonwealth’s
      Public Policy pursuant to Art. 5, § 16(q)(ii)?

      (3) Whether Appellant met the statutory requirement under
      the past tense plain language doctrine of 42 Pa.C.S.A. §
      9545(b)(ii)(iii)(2) where his sole issue center[s] squarely upon
      the level of this Commonwealth’s Constitutional definition of
      Juvenile under Art. 5, § 16(q)(ii)?

Brief for Appellant at 4. As Appellant did not devote a separate discussion to

each of these claims and they are interrelated, we will consider them

together.

      “Our standard of review of the denial of PCRA relief is clear; we are

limited to determining whether the PCRA court's findings are supported by

the record and without legal error.” Commonwealth v. Wojtaszek, 951

A.2d 1169, 1170 (Pa.Super. 2008) (quotation and quotation marks omitted),

appeal denied, 600 Pa. 733, 963 A.2d 470 (2009). Before we may address



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the merits of the issues Appellant raises, we must first determine whether

Appellant's instant PCRA petition is timely. See Commonwealth v.

Hutchins, 760 A.2d 50, 53 (Pa.Super. 2000).

      A PCRA petition, including a second or subsequent one, 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

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 a 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 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).




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      The petitioner bears the burden to allege and prove one of the

enumerated exceptions to the one-year time-bar.         See 42 Pa.C.S.A. §

9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa.Super.

2008) (finding that to invoke a statutory exception to the PCRA time-bar,

petitioner must properly plead and prove all required elements of the

exception). Moreover, “the PCRA limits the reach of the exceptions by

providing that a petition invoking any of the exceptions must be filed within

60 days of the date the claim first could have been presented.” See 42

Pa.C.S.A. § 9545(b)(2); Commonwealth v. Walters, 135 A.3d 589, 592

(Pa.Super. 2016) (citations omitted).

      Appellant’s instant PCRA petition is clearly untimely. Because he did

not file a petition for allowance of appeal with the Supreme Court of

Pennsylvania, Appellant’s judgment of sentence became final on December

5, 2012, thirty (30) days after this Court dismissed his appeal for failure to

file a brief. See 42 Pa.C.S.A. § 9545(b)(3) (judgment of sentence becomes

final at conclusion of direct review or at expiration of time for seeking that

review). Thus, Appellant had until December 5, 2013, to file a timely PCRA

petition; however, Appellant did not file the instant petition until 2016;

therefore, it is patently untimely under the PCRA. See 42 Pa.C.S.A. §

9545(b)(1); Commonwealth v. Gamboa–Taylor, 562 Pa. 70, 753 A.2d

780 (2000).




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       Indeed, Appellant does not contest, as the PCRA court aptly found,

that the instant PCRA petition was filed untimely, and he concedes he was

over the age of eighteen at the time he committed the crimes for which he

had been convicted.3 See Brief of Appellant at 9; PCRA Court Opinion, filed

1/12/17, at 4.        Nevertheless, Appellant attempts to invoke the “newly

recognized constitutional right” exception to the PCRA time-bar and avers

his sentence is illegal under Montgomery v. Louisiana, ___ U.S. ____,

136 S.Ct. 718, 193 L.Ed.2d 599 (2016) and Miller v. Alabama, 567 U.S.

460, 132 S.Ct. 2455, 183 L.Ed. 2d 407 (2012).

       Appellant filed the instant petition on February 19, 2016, within sixty

days after the Supreme Court decided Montgomery,4 and the High Court

held therein that the new substantive rule of constitutional law announced in

____________________________________________


3
   Appellant’s date of birth is August 28, 1991, and the murder occurred on
January 18, 2010.
4
   The United States Supreme Court decided Montgomery on January 25,
2016, and in Commonwealth v. Secreti, 134 A.3d 77, 82, (Pa.Super.
2016), this Court held that the date upon which Montgomery had been
decided is to be used when calculating whether a petition is timely filed
under the sixty-day rule of 42 Pa.C.S.A. § 9545(b)(2). Thus, if the right
announced in Miller applies to Appellant’s claims, the instant PCRA petition
is timely. See Commonwealth v. Woods, supra at ___ A.3d ____, 2017
WL 2536525, at *5, (citing Commonwealth v. Abdul–Salaam, 571 Pa.
219, 227, 812 A.2d 497, 501–02 (2002) (stating ruling regarding retroactive
application of new constitutional right must be made prior to filing of PCRA
petition)); see also Commonwealth v. Porter, 613 Pa. 510, 526, 35 A.3d
4, 13–14 (2012) (provisions in 42 Pa.C.S.A. § 9545(b)(1), (2) relating to
PCRA's time-bar exceptions are necessarily claim-specific given sixty-day
filing restriction and fact that the statute addresses “exceptional” claims).




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Miller applies retroactively to cases on collateral review. Montgomery v.

Louisiana, ___ U.S. at ____, 136 S.Ct. at 736, 193 L.Ed.2d at ____.

Notwithstanding, we conclude the dictates of Montgomery/Miller are

inapplicable to Appellant.

      In Miller, the United States Supreme Court held that sentencing a

juvenile convicted of a homicide offense to a mandatory term of life

imprisonment without parole violates the Eighth Amendment's prohibition

against cruel and unusual punishment. Accordingly, such sentences cannot

be   handed down     unless a        judge   or     jury    first considers       mitigating

circumstances.    The Miller decision applies to only those defendants who

were “under the age of 18 at the time of their crimes.” Miller, ___ U.S.

____, 132 S.Ct. at 2469, L.Ed.2d at ____. See also Commonwealth v.

Cintora, 69 A.3d 759, 764 (Pa.Super. 2013) (deciding Miller is not an

exception under Section 9545(b)(1)(iii) to those over the age of eighteen at

the time crimes were committed) see also Woods, supra, at *6.

Therefore,   we   agree      with    the   PCRA      court        that    the   holdings   in

Montgomery/Miller are not applicable to Appellant.

      Appellant     argues,         nevertheless,          that      he     may      invoke

Montgomery/Miller because “the mere designation of the age of 18 [for] a

juvenile [as] a mature adult crumbles under the weight of Art. 5, § 16(q)(ii),

and the ongoing research of articles into neuroscience and developed

psychology that distinguish juveniles from adults.” Brief of Appellant at 8-9.


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Appellant urges this Court to “undertake a serious independent analysis of

our State Constitutional provision where the Eighth Amendment forbids

arbitrary age distinctions and discrimination for those who commits [sic] the

same offenses.” Brief of Appellant at 9. While Appellant essentially seeks

an extension of Montgomery/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 previously has rejected such an argument.

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

the   nineteen-year-old   appellant   was   not   entitled   to   relief   under

Miller/Montgomery on collateral review and rejecting argument that he

should be considered a “technical juvenile”).

      For the foregoing reasons, Appellant’s PCRA petition is untimely and he

has failed to invoke successfully any exception to the statutory time-bar. As

such, the PCRA court correctly determined it lacked jurisdiction to address

the merits of Appellant’s substantive claims, and we discern no other basis

on which to disturb the PCRA court’s dismissal of Appellant’s petition as

untimely.   Accordingly, we affirm.

      Order Affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/2017




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