J-S49013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    LUIS PAGAN,

                             Appellant                No. 1281 EDA 2018


               Appeal from the PCRA Order Entered April 5, 2018
              In the Court of Common Pleas of Philadelphia County
                           Criminal Division at No(s):
                            CP-51-CR-0310324-1997
                            CP-51-CR-0409201-1997


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

MEMORANDUM BY BENDER, P.J.E.:                     FILED DECEMBER 03, 2019

        Appellant, Luis Pagan, appeals pro se from the post-conviction court’s

April 5, 2018 order denying, as untimely, his petition filed under the Post

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

        The facts of Appellant’s underlying convictions are not pertinent to his

present appeal. We need only note that on January 14, 1999, Appellant was

convicted of second-degree murder, robbery, aggravated assault, and related

offenses. That same day, the court sentenced him to an aggregate term of

life imprisonment, without the possibility of parole (“LWOP”).       This Court

affirmed his judgment of sentence on July 24, 2000, and he did not file a


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*   Former Justice specially assigned to the Superior Court.
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petition for allowance of appeal with our Supreme Court. Commonwealth v.

Pagan, 761 A.2d 1237 (Pa. Super. 2000) (unpublished memorandum).

      On May 1, 2001, Appellant filed a pro se PCRA petition that was

ultimately denied.   After we again affirmed on appeal, our Supreme Court

denied Appellant’s petition for allowance of appeal.      Commonwealth v.

Pagan, 883 A.2d 692 (Pa. Super. 2005) (unpublished memorandum), appeal

denied, 889 A.2d 1215 (Pa. 2005).

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

which underlies the present appeal. Therein, he argued that, although he was

18 years old at the time of his crimes, his mandatory sentence of LWOP should

be deemed unconstitutional and illegal under Miller v. Alabama, 567 U.S.

460 (2012) (holding that imposing a sentence of LWOP upon those under the

age of 18 years old at the time of their crimes violates the Eighth Amendment’s

prohibition on cruel and unusual punishment). On March 21, 2016, Appellant

filed a supplemental petition contending that Miller applies to him

retroactively under Montgomery v. Louisiana, 136 S.Ct. 718 (2016)

(holding that Miller announced a new substantive rule that applies

retroactively on state collateral review).

      On March 16, 2017, the PCRA court issued a Pa.R.Crim.P. 907 notice of

its intent to dismiss Appellant’s petition without a hearing. He filed two pro

se responses, but on April 5, 2018, the PCRA court issued an order dismissing

his petition on the basis that it was untimely.




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       On April 23, 2018, Appellant filed a pro se notice of appeal.1 Herein, he

states three issues for our review:

       1. Did the PCRA court err in failing to grant an evidentiary hearing
       here where … [Appellant’s] co-defendant, German Cruz, had his
       sentence vacated and remanded for a resentencing hearing based
       on Miller … and Montgomery…?

       2. Did the PCRA court err by failing to resolve [the] substantial
       question under state law [of] whether [Appellant] is entitled to
       equal protection of the law and a proportionate sentence pursuant
       to the [Eighth] Amendment, particularly in this circumstance
       where … he was merely present at the scene[,] … not armed, and
       did not shoot the victims?

       3. Given that [Appellant] was a marginally older adolescent, age
       18, at the time of the offense at-issue, did the PCRA court err by
       declining to determine whether the Supreme Court’s rationale
       underlying Miller … and Montgomery … applies to a youthful
       adult offender who possessed the same juvenile characteristics
       that the Supreme Court found relevant to reduce culpability[,]
       thereby rendering a mandatory [LWOP] sentence disproportionate
       under the Eighth Amendment?

Appellant’s Brief at 4 (unnecessary capitalization and emphasis omitted).

       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.      Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
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1 We recognize that Appellant filed a single notice of appeal listing two docket
numbers. Our Supreme Court recently held that “the proper practice under
Rule 341(a) is to file separate appeals from an order that resolves issues
arising on more than one docket. The failure to do so requires the appellate
court to quash the appeal.” Commonwealth v. Walker, 185 A.3d 969, 977
(Pa. 2018).     The Court tempered its holding, however, by making it
prospective only. The Walker opinion was filed on June 1, 2018; hence, this
holding is not applicable in the instant matter, as Appellant filed his notice of
appeal on April 23, 2018.

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timeliness of Appellant’s petition, because the PCRA time limitations implicate

our jurisdiction and may not be altered or disregarded in order to address the

merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.

2007). Under the PCRA, any petition for post-conviction relief, including a

second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the following exceptions

set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (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:

            (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

            (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. § 9545(b)(1)(i)-(iii). Additionally, at the time Appellant’s petition

was filed, section 9545(b)(2) required that any petition attempting to invoke




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one of these exceptions “be filed within sixty days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).2

       Here, Appellant’s judgment of sentence became final in 2000 and, thus,

his present petition, filed in 2012, is facially untimely. For this Court to have

jurisdiction to review the merits thereof, Appellant must prove that he meets

one of the exceptions to the timeliness requirements set forth in 42 Pa.C.S. §

9545(b). Appellant cannot overcome this hurdle by relying on Miller.

       In Commonwealth v. Lee, 206 A.3d 1 (Pa. Super. 2019) (en banc),

an en banc panel of this Court concluded that Lee, who was 18 years old at

the time of her crimes, could not rely on Miller to meet the new retroactive

right exception of section 9545(b)(1)(iii).       Similarly to Appellant, Lee

contended that the rationale of Miller should apply to her because she

possessed “‘characteristics of youth’ that render[ed] her categorically less

culpable under Miller.” Id. at 7. In rejecting this argument, we reasoned

that Lee was essentially asking “this Court to expand the holding of Miller to

apply to her….”      Id.   While we recognized that “the scientific studies and

principles underlying Miller informed its holding[,]” we stressed that “Miller

says nothing about defendants who were 18 years old or older at the time of

the commission of their crimes.” Id. at 9. Thus, the Lee panel held that “age


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2 A recent amendment to section 9545(b)(2), which became effective on
December 24, 2018, changed the language to require that a petition “be filed
within one year of the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2).

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is the sole factor in determining whether Miller applies to overcome the PCRA

time-bar….” Id. at 11.

       In the case sub judice, Appellant acknowledges that he was 18 years

old at the time of the murder for which his mandatory LWOP sentence was

imposed.3 Consequently, Lee constrains us to conclude that Appellant cannot

rely on Miller to meet a timeliness exception.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/3/19




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3 This fact makes Appellant’s case easily distinguishable from his co-
defendant, German Cruz, who was granted resentencing under Miller because
he was 17 years old at the time of the murder. See Commonwealth v. Cruz,
No. 1769 EDA 2015, unpublished judgment order (Pa. Super. filed March 30,
2016). Cruz also requested relief under Miller via a timely-filed PCRA petition.
See id. Thus, Appellant’s argument that equal protection principles require
us to afford him the same relief as Cruz is unavailing.


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