J-S14010-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :      IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 TERRELL CARTER                           :
                                          :
                    Appellant             :      No. 1247 EDA 2019

            Appeal from the PCRA Order Entered March 28, 2019
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0709851-1992

BEFORE: BOWES, J., KING, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                               FILED APRIL 29, 2020

      Terrell Carter appeals from the order that dismissed his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.

      When he was twenty-two years old, Appellant shot and killed Evan Gary

Smith. Appellant was convicted of second-degree murder and was sentenced

to life imprisonment without possibility of parole (“LWOP”) in 1993.

Appellant’s direct appeal afforded him no relief, and his initial attempts at

obtaining collateral relief were unsuccessful.

      On August 22, 2012, Appellant filed a pro se PCRA petition invoking the

United States Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460,

465 (2012) (holding that mandatory LWOP sentences “for those under the age

of 18 at the time of their crimes violates the Eighth Amendment’s prohibition

on ‘cruel and unusual punishments’”).         The court took no action on the

petition.
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      Appellant filed an amended pro se petition on March 24, 2016,

referencing Montgomery v. Louisiana, 136 S.Ct. 718 (2016) (holding that

Miller announced a new substantive rule of law that applies retroactively).

The case was assigned to a judge in August 2017.           Counsel entered an

appearance in June 2018, and filed an amended petition stating four claims:

      (i)     [Appellant]’s sentence is unconstitutional because his youth
              at the time of the offense rendered him categorically less
              culpable under Miller;

      (ii)    [Appellant]’s sentence is unconstitutional because his lack
              of any intent to kill due to intoxication rendered him
              categorically less culpable under Miller;

      (iii)   [Appellant]’s sentence is unconstitutional because the
              combined effect of his youth at the time of the offense, his
              lack of any intent to kill due to intoxication, and his
              sustained adolescent substance abuse rendered him
              categorically less culpable under Miller; [and]

      (iv)    [Appellant]’s    sentence   is   unconstitutional  because
              Pennsylvania law permitting the imposition of mandatory
              life without parole sentences on 18-25 year-olds when such
              a sentence is now prohibited for 17-year-olds lacks a
              rational basis and therefore violates the equal protection
              rights of Petitioner under the U.S. and Pennsylvania
              constitutions.

Amended PCRA Petition, 11/25/18, at 2.

      On February 26, 2019, the PCRA court issued notice of its intent to

dismiss Appellant’s petition as untimely filed pursuant to Pa.R.Crim.P. 907.

After considering Appellant’s response, in which he argued that the claim was

reviewable as a petition for a writ of habeas corpus if relief was not available

under the PCRA, the PCRA court dismissed the petition as untimely by order


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of March 28, 2019. Appellant filed a timely appeal. The PCRA court did not

direct Appellant to file a Pa.R.A.P. 1925(b) statement, but did author an

opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant presents the following questions for this Court’s consideration:

      I.     Did the court of common pleas err in rejecting Appellant’s
             claim that the right established in Miller v. Alabama
             applies to [Appellant] 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 [Appellant] 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 (unnecessary capitalization omitted).

      Before we consider the substance of Appellant’s claims, we must

determine the proper framework for our review. We begin by noting that “the

PCRA subsumes all forms of collateral relief, including habeas corpus, to the

extent a remedy is available under such enactment.”         Commonwealth v.

West, 938 A.2d 1034, 1043 (Pa. 2007). “[A] defendant cannot escape the

PCRA time-bar by titling his petition or motion as a writ of habeas corpus.”

Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa.Super. 2013).


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      “Simply because the merits of the PCRA petition cannot be considered

due to previous litigation, waiver, or an untimely filing, there is no alternative

basis for relief outside the framework of the PCRA.”        Commonwealth v.

Kutnyak, 781 A.2d 1259, 1261 (Pa.Super. 2001). As our Supreme Court has

explained:

      The 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).

      Appellant’s claim is that his sentence is illegal as violative of the Eighth

Amendment to the U.S. Constitution and Article I, § 13 of the Pennsylvania

Constitution.   This Court has expressly held that such claims are clearly

cognizable under the PCRA, and therefore must be construed under the

provisions of the PCRA rather than under those applicable to a petition for writ

of habeas corpus. See Commonwealth v. Montgomery, 181 A.3d 359, 367

(Pa.Super. 2018) (en banc) (citing, inter alia, 42 Pa.C.S. § 9543(a)(2)(vii)).

Hence, the PCRA court properly treated Appellant’s petition as a PCRA petition.

Appellant’s third and fourth issues merit no relief from this Court.

      Our next task is to determine whether Appellant’s PCRA petition was

timely   filed, as   the   timeliness of   a   PCRA petition    is jurisdictional.

Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa.Super. 2011).

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Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date that the

judgment of sentence became final unless the petition alleges, and the

petitioner proves, that an exception to the time for filing the petition is met.

42 Pa.C.S. § 9545. “[W]hen a PCRA petition is not filed within one year of the

expiration of direct review, or not eligible for one of the three limited

exceptions, or entitled to one of the exceptions, but not filed within 60 days

of the date that the claim could have been first brought, the [PCRA] court has

no power to address the substantive merits of a petitioner’s PCRA claims.”

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015).

      Appellant’s petition is facially untimely since his judgment of sentence

became final in 1994. Furthermore, Appellant candidly acknowledges that this

Court’s decision in Commonwealth v. Lee, 206 A.3d 1 (Pa.Super. 2019) (en

banc), “forecloses his claim that his [p]etition meets the timeliness exceptions

under the PCRA and that he is therefore entitled to an evidentiary hearing to

determine whether his sentence is unconstitutional under Miller.” Appellant’s

brief at 13-14. In Lee, this Court recognized Appellant’s argument that the

principles and science underlying the Miller holding are not limited to

juveniles, but also extend to young adults.         See Lee, supra at 10.

Nonetheless, we indicated that questions of who qualifies as a juvenile and

whether Miller should apply to immature people who were over eighteen

when they committed their murders “are better characterized as questions on


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the merits, not as preliminary jurisdictional questions under section

9545(b)(1)(iii).”   Id.   While acknowledging the compelling nature of the

argument that the rationale behind the Miller decision may apply to people

beyond the age of majority, this Court found it “untenable to extend Miller to

one who is over the age of 18 at the time of his or her offense for purposes of

satisfying the newly-recognized constitutional right exception in section

9545(b)(1)(iii).” Id.

      Appellant argues extensively that Lee was wrongly decided, and that he

has presented a colorable claim that he has timely sought PCRA relief under

Miller. See Appellant’s brief at 14-40. Of course, his argument is untenable.

See, e.g., Commonwealth v. Bucknor, 657 A.2d 1005, 1007 (Pa.Super.

1995) (noting that, even if we disagreed with a prior decision, “as a three

judge panel we are bound by the rulings of a court en banc.”).

      Appellant is free to seek review of his claims and the validity of the Lee

decision in our Supreme Court. However, under the existing law, this Court

must affirm the PCRA court’s order dismissing Appellant’s petition as untimely.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/2020




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