J-S19027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEVIN MITCHELL                             :
                                               :
                       Appellant               :   No. 2471 EDA 2017

                    Appeal from the PCRA Order July 5, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0802931-1999


BEFORE:       SHOGAN, J., NICHOLS, J., and PLATT, J *

MEMORANDUM BY NICHOLS, J.:                                 FILED MAY 03, 2018

        Appellant Kevin Mitchell appeals pro se from the order dismissing as

untimely his third petition filed under the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§ 9541-9546. Appellant, who was twenty-one years old when he

committed the underlying offenses, claims that he properly raised the newly-

recognized constitutional right exception under 42 Pa.C.S. § 9545(b)(1)(iii)

based on Miller v. Alabama, 132 S. Ct. 2455 (2012), and Montgomery v.

Louisiana, 136 S. Ct. 718 (2016). We affirm.

        We previously set forth the facts of this case as follows:

        On June 7, 2000, a jury found [A]ppellant guilty of first degree
        murder, possession of an instrument of crime, and a violation of
        the Uniform Firearms Act.[1]    The convictions arose from a
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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 2502, 907, and 6106, respectively.
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     shooting on Judson Street in Philadelphia on April 18, 1999.
     Appellant was sentenced to life imprisonment for the murder and
     a consecutive five to ten years’ imprisonment for the other
     convictions. On November 22, 2002, this [C]ourt affirmed the
     conviction. See Commonwealth v. Mitchell, 816 A.2d 332 (Pa.
     Super. 2002) (unpublished memorandum). No further appeal was
     taken.

     On May 29, 2003, [A]ppellant filed his first PCRA petition pro se.
     . . . On June 25, 2004, the PCRA court issued [a] notice, pursuant
     to Pa.R.Crim.P., Rule 907, 42 Pa.C.S.[], of its intention to dismiss
     the PCRA petition without a hearing. Thereafter, on July 16, 2004,
     the petition was denied. On March 22, 2006, our [S]upreme
     [C]ourt denied [the] appeal. Commonwealth v. Mitchell, 898
     A.2d 1131 (Pa. Super. 2006) (unpublished memorandum),
     appeal denied, 908 A.2d 540 (Pa. 2006).

     On September 26, 2007, [A]ppellant filed [a] PCRA petition pro
     se, his second such petition. Therein, [A]ppellant invoked the
     after-discovered facts exception . . . .

     The PCRA court issued [a] Rule 907 notice that it intended to
     dismiss the petition without a hearing, and on April 7, 2008, the
     court dismissed the petition. On November 30, 2009, [A]ppellant
     filed a third PCRA petition in which he invoked the interference by
     government officials exception . . . . Therein, he argued that he
     had not been given proper notice that his second PCRA petition
     had been dismissed. On November 6, 2013, the PCRA court
     granted [A]ppellant relief and restored [A]ppellant’s appeal rights
     to his second PCRA petition.

Commonwealth v. Mitchell, 3550 EDA 2013, 1-3 (Pa. Super. filed Mar. 3,

2015) (unpublished memorandum). On March 3, 2015, we affirmed the PCRA

court’s dismissal of Appellant’s second PCRA petition. Id. at 5. On October

29, 2015, the Pennsylvania Supreme Court denied Appellant’s petition for

allowance of appeal.

     On March 22, 2016, the PCRA court docketed Appellant’s instant PCRA

petition, his third. In his petition, Appellant relied on the United States


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Supreme Court’s decisions in Miller and Montgomery.2 He asserted that he

was an adolescent at the time of the crime and thus the trial court’s imposition

of   a    sentence    of   mandatory       life   imprisonment   without   parole   is

unconstitutional and subjects him to a cruel and unusual punishment. Mot.

for Post Conviction Collateral Relief, 3/22/16, at 7.

         On March 31, 2017, the PCRA court issued a Rule 907 notice of its intent

to dismiss Appellant’s PCRA petition. The notice indicated that the petition

was untimely and that Appellant failed to meet the newly-recognized

constitutional right exception recognized in Miller as Appellant was over the

age of eighteen at the time of the offense. Notice Pursuant to Pa.R.Crim.P.

907, 3/31/17. Appellant did not file a response, and on July 5, 2017, the

PCRA court dismissed Appellant’s petition as untimely.             PCRA Ct. Order,

7/5/17.

         On July 25, 2017, Appellant’s notice of appeal was docketed. The PCRA

court did not order Appellant to file a Pa.R.A.P. 1925(b) statement. On August

7, 2017, however, the court filed an opinion reiterating that Appellant did not

qualify for relief under Miller because he was over the age of eighteen at the

time of the crime. PCRA Ct. Op., 8/7/17.
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2 In Miller, the United States Supreme Court held that a sentence of life
imprisonment without the possibility of parole was unconstitutional when
imposed upon defendants who were “under the age of 18 at the time of their
crimes.” Miller, 132 S. Ct. at 2460. In Montgomery, which was decided on
January 25, 2016, and modified on January 27, 2016, the Supreme Court held
that the Miller decision applied retroactively to cases on state collateral
review. Montgomery, 136 S. Ct. at 736. Appellant filed the instant petition
within sixty days of Montgomery.

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      Appellant raises the following issues on appeal:

      1. The PCRA court erred in dismissing Appellant’s PCRA petition
         as untimely, pursuant to 42 [Pa.C.S.] § 9545(b).

      2. Since the Appellant was an adolescent at the time of the alleged
         murder, the automatic life sentence without the possibility of
         parole, that he was given, without a mitigating hearing is
         unconstitutional and void ab initio and is subjecting the
         [A]ppellant to cruel and unusual punishment and violative of
         the Equal Protection Clause.

      3. Not applying the decision in Miller v. Alabama and
         Montgomery v. Louisiana, to the [A]ppellant, violates the
         [A]ppellant’s Equal Protection Right[]s.

      4. Sentencing the Appellant to the automatic mandatory life
         sentence without the possibility of parole, without a mitigating
         hearing that takes into account the [A]ppellant’s age and other
         contributing factors violates the [A]ppellant’s due process
         rights.

Appellant’s Brief at 4 (some capitalization omitted).

      Because all of Appellant’s issues on appeal relate to his claim that he

meets the newly-recognized constitutional right exception based on Miller and

Montgomery, we discuss them together.          Appellant admits that he was

twenty-one at the time of the crime. Appellant’s Brief at 13. However, he

argues that the holding in Miller should not apply only to those under the age

of eighteen, but to all “adolescents,” including those through the age of

twenty-one.   Id. at 13-19.    He cites to several studies in support of his

contention that the brain is not fully developed until the age of twenty-five,

and that a punishment of life imprisonment without the possibility of parole

would be considered cruel and unusual. Id. As an example, Appellant points



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out that “[i]n Pennsylvania, the legislature looks at all people under 21 as

[j]uveniles.” Id. at 19. Appellant further argues that applying the holding in

Miller only to those under the age of eighteen is a violation of the Equal

Protection Clause. Id. at 20-22.

      Our standard of review from the denial of a PCRA petition “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted).

      It is well settled that “the timeliness of a PCRA petition is a jurisdictional

requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015)

(citation omitted). A PCRA petition “including a second or subsequent petition,

shall be filed within one year of the date the judgment becomes final.” 42

Pa.C.S. § 9545(b)(1). A judgment is 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. § 9545(b)(3).

      Courts may consider a PCRA petition filed more than one year after a

judgment of sentence became final only if the petitioner pleads and proves

one of the following three statutory exceptions:

      (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;



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       (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).3

       It is well settled that in order to establish an exception to the PCRA time

bar under section 9545(b)(1)(iii), the petitioner must establish: (1) “the right

asserted is a constitutional right that was recognized by the Supreme Court

of the United States or [the Supreme Court of Pennsylvania;]” and (2) “the

right has been held by that court to apply retroactively.” Commonwealth v.

Leggett, 16 A.3d 1144, 1147 (Pa. Super. 2011) (citation omitted).               The

asserted right must be recognized at the time the petition was filed. Id.

       There is no dispute here that Appellant’s conviction became final in

2002, and that Appellant’s current PCRA petition was facially untimely.

Because Appellant failed to file the instant PCRA petition within one year after

his judgment of sentence became final, he must satisfy one of the exceptions

to the PCRA time bar.

       Here, Appellant was twenty-one years old at the time he committed the

murder for which he was convicted.               We have held that prohibition of


____________________________________________


3Moreover, to invoke one of these exceptions, petitioner must also file his
petition within sixty days of the date the claim could have been presented.
See 42 Pa.C.S. § 9545(b)(2).

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mandatory life-without-parole sentences under Miller does not establish a

newly-recognized constitutional right for petitioners who were eighteen years

or older at the time of the offense. See Commonwealth v. Furgess, 149

A.3d 90, 94 (Pa. Super. 2016) (reaffirming Commonwealth v. Cintora, 69

A.3d 759, 764 (Pa. Super. 2013), and stating that petitioners who were

eighteen or older “at the time they committed murder are not within the ambit

of the Miller decision and therefore may not rely on that decision to bring

themselves within the time-bar exception”).

      Similarly, Appellant’s argument that his brain was not fully developed at

the time of his crimes has been previously rejected by this Court for the

purposes   of   establishing   a   PCRA   time-bar   exception   under   section

9545(b)(1)(iii). See Furgess, 149 A.3d at 94 (citing Cintora, 69 A.3d at 764

for the proposition that a “contention that a newly-recognized constitutional

right should be extended to others does not render their petition timely

pursuant to section 9545(b)(1)(iii)”).

      Accordingly, because Appellant was twenty-one years old at the time of

the offenses, Miller does not apply, and Appellant has failed to satisfy the

newly-recognized constitutional right exception to the PCRA time bar. See

Furgess, 149 A.3d at 94. Therefore, the PCRA court did not err in dismissing

the petition as untimely.




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/18




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