J-S35028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

AARON CLAUDE PHILLIPS,

                        Appellant                  No. 3005 EDA 2014


            Appeal from the PCRA Order of September 26, 2014
           In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0025720-1986


BEFORE: MUNDY, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                         FILED AUGUST 11, 2015

     Appellant, Aaron Claude Phillips, appeals from the order entered on

September 26, 2014, dismissing his fifth petition filed under the Post-

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

     As we previously explained:

        On January 4, 1988, following a bench trial, Appellant, who
        was a juvenile at the time of his crimes, was convicted of
        second-degree murder, burglary, and related offenses. On
        September 16, 1988, the [trial] court sentenced Appellant
        to [the mandatory term of] life in prison without the
        possibility of parole for his second-degree murder
        conviction, and Appellant filed a direct appeal. We affirmed
        his judgment of sentence, and Appellant filed a timely
        petition for allowance of appeal, which the Pennsylvania
        Supreme Court denied on March 28, 1991.

Commonwealth v. Phillips, 32 A.3d 835 (Pa. Super. 2011) (unpublished

memorandum) at 1.




*Retired Senior Judge assigned to the Superior Court.
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        From 1995 until 2010, Appellant filed four petitions for post-conviction

collateral relief under the PCRA, and all requests for relief were denied by

the courts.

        On August 20, 2012, Appellant, acting pro se, filed the current PCRA

petition.   The petition constitutes Appellant’s fifth attempt to secure post-

conviction collateral relief under the PCRA.     Within the petition, Appellant

claimed that, in Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012),

the United States Supreme Court created a new constitutional right that

entitled him to relief.        Appellant’s Fifth PCRA Petition, 8/20/12, at 2.

Specifically, Appellant claimed, in Miller, the United States Supreme Court

created the new rule of law that “the Eighth Amendment forbids a

sentencing scheme that mandates life in prison without [] possibility of

parole for juvenile offenders.” Appellant’s Fifth PCRA Petition, 8/20/12, at 4;

quoting Miller, ___ U.S. at ___, 132 S.Ct. at 2469. Since Appellant filed his

PCRA petition within 60 days of the date Miller was decided,1 Appellant

claimed that his PCRA petition was timely under the “newly recognized

constitutional right” exception to the PCRA’s one-year time-bar. Appellant’s

Fifth PCRA Petition, 8/20/12, at 4; 42 Pa.C.S.A. § 9545(b)(1)(iii) and (2).

        Appellant later retained counsel and, on December 4, 2013, counsel

filed a self-titled “Amended Petition for Habeas Corpus Relief Under Article 1,


____________________________________________


1
    The Supreme Court decided Miller on June 25, 2012.



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Section 14 of the Pennsylvania Constitution and for Post-Conviction Relief

Under the Post Conviction Relief Act” on Appellant’s behalf. In this amended

petition, Appellant reiterated the claim that he was entitled to relief under

Miller.     Further, Appellant claimed, even if the constitutional right

announced in Miller were not retroactive to cases on collateral review,

Appellant was entitled to relief in the form of a writ of habeas corpus.

      On August 1, 2014, the PCRA court provided Appellant with notice that

it intended to dismiss Appellant’s fifth PCRA petition in 20 days without

holding a hearing, as the petition was untimely. The PCRA court dismissed

Appellant’s petition on September 26, 2014 and Appellant filed a timely

notice of appeal to this Court. Appellant raises three claims on appeal:

          1. Does the failure to apply Miller v. Alabama retroactively
          to a juvenile offender sentenced to life in prison without the
          possibility of parole for a conviction of second-degree
          murder violate Appellant’s rights under the [United States]
          Constitution or the Pennsylvania Constitution?

          2. Does habeas corpus provide Appellant with a mechanism
          for relief?

          3. Did the [PCRA] court err in denying the petition for post-
          conviction collateral relief without granting a hearing?

Appellant’s Brief at 4.

      We conclude that the PCRA court properly dismissed Appellant’s

untimely PCRA petition.

      As our Supreme Court held, we “review an order granting or denying

PCRA relief to determine whether the PCRA court’s decision is supported by



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evidence of record and whether its decision is free from legal error.”

Commonwealth v. Liebel, 825 A.2d 630, 632 (Pa. 2003).

     The PCRA contains a jurisdictional time-bar, which is subject to limited

statutory exceptions.   This time-bar demands that “any PCRA petition,

including a second or subsequent petition, [] be filed within one year of the

date that the petitioner’s judgment of sentence becomes final, unless [the]

petitioner pleads [and] proves that one of the [three] exceptions to the

timeliness requirement . . . is applicable.” Commonwealth v. McKeever,

947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b).           Further,

since the time-bar implicates the subject matter jurisdiction of our courts,

we are required to first determine the timeliness of a petition before we

consider the underlying claims. Commonwealth v. Yarris, 731 A.2d 581,

586 (Pa. 1999). Our Supreme Court has explained:

        the PCRA timeliness requirements are jurisdictional in
        nature and, accordingly, a PCRA court is precluded from
        considering untimely PCRA petitions.            See, e.g.,
        Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)
        (stating that “given the fact that the PCRA's timeliness
        requirements are mandatory and jurisdictional in nature, no
        court may properly disregard or alter them in order to reach
        the merits of the claims raised in a PCRA petition that is
        filed in an untimely manner”); Commonwealth v. Fahy,
        737 A.2d 214, 220 (Pa. 1999) (holding that where a
        petitioner fails to satisfy the PCRA time requirements, this
        Court has no jurisdiction to entertain the petition). [The
        Pennsylvania Supreme Court has] also held that even where
        the PCRA court does not address the applicability of the
        PCRA timing mandate, th[e court would] consider the issue
        sua sponte, as it is a threshold question implicating our



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        subject matter jurisdiction and ability to grant the requested
        relief.

Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).

     In the case at bar, Appellant’s judgment of sentence became final in

1991. As Appellant did not file his current petition until August 20, 2012,

the current petition is manifestly untimely and the burden thus fell upon

Appellant to plead and prove that one of the enumerated exceptions to the

one-year time-bar applied to his case.     See 42 Pa.C.S.A. § 9545(b)(1);

Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa. Super. 2008) (to

properly invoke a statutory exception to the one-year time-bar, the PCRA

demands that the petitioner properly plead all required elements of the

relied-upon exception).

     Here, Appellant claims to invoke the “newly recognized constitutional

right” exception to the time-bar. This statutory exception provides:

        (1) Any petition under this subchapter, including a second
        or subsequent petition, shall be filed within one year of the
        date the judgment becomes final, unless the petition alleges
        and the petitioner proves that:

                                     ...

           (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.

                                     ...

        (2) Any petition invoking an exception provided in
        paragraph (1) shall be filed within 60 days of the date the
        claim could have been presented.


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42 Pa.C.S.A. § 9545(b).

      As our Supreme Court explained:

        Subsection (iii) of Section 9545(b)(1) has two requirements.
        First, it provides that 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 provided in this section. Second, it provides that
        the right “has been held” by “that court” to apply
        retroactively. Thus, a petitioner must prove that there is a
        “new” constitutional right and that the right “has been held”
        by that court to apply retroactively. The language “has
        been held” is in the past tense. These words mean that the
        action has already occurred, i.e., “that court” has already
        held the new constitutional right to be retroactive to cases
        on collateral review. By employing the past tense in writing
        this provision, the legislature clearly intended that the right
        was already recognized at the time the petition was filed.

Commonwealth v. Copenhefer, 941 A.2d 646, 649-650 (Pa. 2007),

quoting Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002)

(internal corrections omitted).

      As Appellant notes, in Miller v. Alabama, the United States Supreme

Court recognized the new constitutional right that “the Eighth Amendment

forbids a sentencing scheme that mandates life in prison without []

possibility of parole for juvenile offenders.” Appellant’s Fifth PCRA Petition,

8/20/12, at 4; quoting Miller, ___ U.S. at ___, 132 S.Ct. at 2469.

Appellant claims that Miller entitles him to relief under the PCRA and that,

since he filed his petition within 60 days of the date that Miller was decided,

his current petition is timely under 42 Pa.C.S.A. § 9545(b)(1)(iii).      This

claim, however, fails because, in Commonwealth v. Cunningham, the


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Pennsylvania Supreme Court held that Miller does not apply retroactively to

cases on collateral review.   Commonwealth v. Cunningham, 81 A.3d 1,

11 (Pa. 2013) (“applying settled principles of appellate review, nothing in

[a]ppellant’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”).      Thus, the Pennsylvania Supreme Court has

already held that individuals such as Appellant cannot rely upon Miller to

satisfy the “newly recognized constitutional right” exception to the PCRA’s

one-year time-bar. 42 Pa.C.S.A. § 9545(b)(1)(iii).

     On appeal, Appellant essentially requests that this Court reconsider

the issue of Miller’s retroactivity. This claim necessarily fails, as we have

no authority to overrule our Supreme Court.          See, e.g., Preiser v.

Rosenzweig, 614 A.2d 303, 306 (Pa. Super. 1992) (“[a]s an intermediate

appellate court, we are not free to disregard the existing law of this

Commonwealth and the decisions of our [S]upreme [C]ourt”).        Further, to

the extent Appellant claims that Miller should be applied retroactively based

upon Pennsylvania’s broader retroactivity principles, we note that we have

already rejected this argument.   See Commonwealth v. Seskey, 86 A.3d

237, 243 (Pa. Super. 2014) (“[a]ppellant attempts to circumvent the effect

that Cunningham has upon our jurisdiction by arguing . . . that Miller


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should    be   applied     retroactively       based   upon    Pennsylvania’s   broader

retroactivity principles. . . .      [W]e are confined by the express terms of

subsection     9545(b)(1)(iii)      and        our   Supreme     Court’s   decision   in

Cunningham. Combined, those two elements require us to conclude that

we lack jurisdiction).”

       Therefore, since our high Court has held that the constitutional right

announced in Miller does not apply retroactively to cases on collateral

review, Appellant’s first claim on appeal fails as a matter of law.2

       Appellant next claims that the PCRA court erred when it failed to afford

him habeas corpus relief. However, other than citing to former Chief Justice

Castille’s concurring opinion in Cunningham – where the Chief Justice

opined, “there is at least some basis in law for an argument that the claim is

cognizable via a petition under Pennsylvania’s habeas corpus statute” – and

then claiming that he is entitled to habeas corpus relief, Appellant has

provided this Court with no developed argument as to why he would be

entitled to habeas corpus relief.          See Appellant’s Brief at 32.      Therefore,

Appellant’s claim on appeal is waived.                 See Seskey, 86 A.3d at 244

(appellant’s claim that he was entitled to habeas corpus relief, as he was a

juvenile offender who received a mandatory term of life imprisonment

____________________________________________


2
  We note that the United States Supreme Court granted a petition for writ
of certiorari in Montgomery v. Louisiana, ___ U.S. ___ 135 S.Ct. 1546
(2015), to consider whether Miller should be given retroactive effect.



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without the possibility of parole and his judgment of sentence became final

prior to Miller, was waived where the appellant simply cited to Chief Justice

Castille’s concurrence in Cunningham and then “list[ed] five constitutional

provisions that he believes should be read in conjunction with that statute”);

Rabatin v. Allied Glove Corp., 24 A.3d 388, 396 (Pa. Super. 2011)

(holding that the Superior Court may not act as counsel for an appellant and

develop arguments on his behalf).

      Finally, Appellant claims that the PCRA court erred when it dismissed

his fifth PCRA petition “without granting a hearing to allow an opportunity to

demonstrate why he is entitled to an individualized resentencing hearing.”

Appellant’s Brief at 45.   However, Appellant’s PCRA petition is manifestly

untimely and Appellant did not properly plead any of the statutory

exceptions to the one-year time-bar. Therefore, neither the PCRA court nor

this Court have subject matter jurisdiction to consider Appellant’s claims.

The PCRA court thus did not err when it dismissed Appellant’s petition

without holding a hearing. Commonwealth v. Jackson, 30 A.3d 516, 523

(Pa. Super. 2011); Pa.R.Crim.P. 907(1).

      Order affirmed. Jurisdiction relinquished.

      Judge Platt joins this memorandum.

      Judge Mundy concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2015




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