J-S02034-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
             v.                        :
                                       :
                                       :
DANIEL ROSADO                          :
                                       :
                    Appellant          :   No. 278 EDA 2017

              Appeal from the PCRA Order December 20, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-1217452-1984


BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY RANSOM, J.:                        FILED FEBRUARY 27, 2018

      Appellant, Daniel Rosado, appeals from the order dismissing his fourth

petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546. After careful review, we affirm.

      Appellant was born on July 4, 1966.        On November 23, 1984, he

murdered Angel Carrion. Appellant was eighteen years old at the time of the

murder.

      This Court has previously summarized the procedural history of this

case, as follows:

      Rosado was tried before a jury, the Honorable Juanita Kidd Stout
      presiding, and convicted of second-degree murder, robbery,
      criminal conspiracy, possession of an instrument of crime, and
      related offenses. [On September 25, 1986, t]he court sentenced
      Rosado to life imprisonment [without parole]. On [April 14,
      1987, on] direct appeal, this Court affirmed Rosado’s judgment
      of sentence[], Commonwealth v. Rosado, 528 A.2d 259 (Pa.
      Super. 1987); Rosado did not seek review in the Pennsylvania


*Retired Senior Judge Assigned to the Superior Court
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      Supreme Court.      Rosado filed a petition under the Post
      Conviction Hearing Act, (now the PCRA), which was denied. On
      appeal, this Court affirmed. Commonwealth v. Rosado, 665
      A.2d 1302 (Pa. Super. 1994). Rosado then filed a petition for
      allocatur in the Supreme Court of Pennsylvania, which was
      denied.    Commonwealth v. Rosado, 668 A.2d 1129 (Pa.
      1995).

      In 1996, Rosado filed a second petition for collateral relief, this
      time under the PCRA, which was dismissed. This Court, on
      appeal, affirmed the PCRA court’s order. Commonwealth v.
      Rosado, 742 A.2d 1151 (Pa. Super. 1999). Rosado’s petition
      for allowance of appeal in the Supreme Court of Pennsylvania
      was denied. Commonwealth v. Rosado, 747 A.2d 900 (Pa.
      1999).

      Thereafter, in November 2000, Rosado filed a petition for habeas
      corpus in the United States District Court for the Eastern District
      of Pennsylvania, which was dismissed. The United States Court
      of Appeals for the Third Circuit denied Rosado’s request for a
      certificate of appealability, and the United States Supreme Court
      denied his Petition for Writ of Certiorari.

      On April 18, 2007, Rosado filed [a third] PCRA petition, which
      the PCRA court dismissed, without a hearing, following notice
      pursuant to Pa.R.Crim.P. 907.

Commonwealth v. Rosado, 81 A.3d 991 (Pa. Super. 2013).             On May 7,

2013, this Court affirmed the dismissal of Appellant’s third PCRA petition.

      On March 24, 2016, Appellant filed his fourth PCRA petition.            On

December 20, 2016, the PCRA court dismissed the instant PCRA petition

without a hearing, following notice pursuant to Pa.R.Crim.P. 907.             On

January 9, 2017, Appellant filed a notice of appeal.

      Appellant now raises the following issues on appeal:

      I.    Whether [Appellant]’s Instant PCRA Petition Predicated
      Upon The United States Supreme Court’s Decision Announced In
      Miller v. Alabama, 567 U.S. [460] (2012), Is Timely Filed
      Under The Purview Of 42 Pa.C.S. §9545(b)(1)(iii)?


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      II.   Whether The Court’s Imposition Of An Illegal Mandatory
      Life Without Parole Sentence, For A Homicide Offense Committed
      While Petitioner Was A Juvenile, Violates The Eighth
      Amendment’s Prohibition On “‘Cruel And Unusual Punishments,’”
      As A Result Of:

         (A).    Miller’s      Application   Being   Binding     Upon     All
         States;

         (B).      Appellant Is A Juvenile Under Pennsylvania Law;
         And

         (C).      Equal Protection Demands Miller’s Application.

Appellant’s Brief at 2.

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is “to determine whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.

The PCRA court’s findings will not be disturbed unless there is no support for

the findings in the certified record.” Commonwealth v. Barndt, 74 A.3d

185, 191-92 (Pa. Super. 2013) (citations and internal quotation marks

omitted).

      The   timeliness    of   a   post-conviction    petition    is    jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

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

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

of sentence is final, unless the petition alleges and the petitioner proves one




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of the three exceptions to the time limitations for filing the petition set forth

in Section 9545(b) of the statute. See 42 Pa.C.S. § 9545(b).1

        Here, the PCRA court concluded that it lacked jurisdiction over

Appellant’s fourth petition, because the petition was untimely and Appellant

failed to satisfy an exception to the PCRA’s time bar.         The PCRA court

explained:

        There is no question that Appellant’s fourth (4[th]) PCRA petition
        is untimely. Appellant argues that because he was eighteen (18)
        at the time of the offense he should receive the benefit of the
        Miller decision. Unfortunately for Appellant’s cause, the Miller
        decision applies to those defendants who were under the age of
        18 at the time of the offense, not over the age of 18. Appellant
        having reached his eighteenth birthday on July 4, 1984, over
        four (4) months prior to the incident means he is not within the
        ambit of Miller and cannot rely on that decision to overcome the

____________________________________________


1   The three exceptions to the timeliness requirement are:

        (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).



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      PCRA time bar. See Commonwealth v. Cintora, 69 A.3d 759
      (Pa. Super. 2013). . . .

      Appellant’s PCRA petition is untimely and this Court is without
      jurisdiction to entertain the merits. Consequently, the Order
      denying PCRA relief and dismissing the PCRA Petition should be
      affirmed.

PCRA Ct. Op., 5/17/17, at 6.

      We agree that Appellant fails to meet any exceptions to the PCRA’s

jurisdictional time-bar.     Appellant did not file the instant petition until

March 24, 2016, more than a quarter of a century after his judgment of

sentence became final.       Appellant attempts to circumvent the time-bar by

asserting   the   “new     constitutional   right”   exception   under   subsection

9545(b)(1)(iii). Appellant’s Brief at 2. Specifically, Appellant claims that:

      Appellant concedes that his current PCRA petition is not filed
      within one year of the date his judgment of sentence became
      final; nonetheless, Appellant’s claim fulfills the exception of 42
      Pa.C.S. §9545(b)(1)(iii).

      Appellant claims the United States Supreme Court’s decision in
      Montgomery [v. Louisiana, 136 S. Ct. 718 (2016)], that held
      the Supreme Courts previous ruling in Miller applied
      retroactively, “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 the court to apply retroactively.” See also,
      Commonwealth v. Copenhefer, 941 A.2d 646, 649-50
      (Pa.2007)(holding that language “has been held,” means that
      the court that recognized the new right has held the right to be
      retroactive to cases on collateral review at the time the petition
      is filed); and Commonwealth v. Miller, 888 A.2d 624
      (Pa.2005)(new substantive rule of constitutional law that
      execution of mentally retarded defendants violates the Eighth
      Amendment applied retroactively).

      Appellant asserts the Montgomery Court has recognized a new
      right held to be retroactive to cases on collateral review.

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                                 *   *   *
      As a result of the Montgomery Court’s retroactive application of
      [its] previous decision announced in Miller, Appellant’s instant
      PCRA petition is timely filed, as Appellant has met the
      requirements of 42 Pa.C.S. §9545(b)(1)(iii) and has filed the
      instant PCRA petition within sixty (60) days of United States
      Supreme Court’s decision in Montgomery, thus, complying with
      the requirements of 42 Pa.C.S. §9545(b)(2).

      Thus, the PCRA Court’s analysis, which found Appellant’s instant
      PCRA petition untimely filed, is incorrect and not supported by
      the record in this case.

Id. at 8-9.

      Initially, we observe that Appellant is correct that the United States

Supreme Court in Montgomery v. Louisiana, 136 S. Ct. 718 (2016), held

that Miller v. Alabama, 567 U.S. 460 (2012), applies retroactively; Miller

held “that mandatory life without parole for those under the age of 18 at the

time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel

and unusual punishments.’” Id. at 465. Petitioners, such as Appellant, who

were at least 18 years old at the time of their crimes “are not within the

ambit of the Miller decision [and its corollary, Montgomery,] and therefore

may not rely on that decision to bring themselves within the time-bar

exception in Section 9545(b)(1)(iii).”     Commonwealth v. Furgess, 149

A.3d 90 (Pa. Super. 2016).           Hence, Miller and Montgomery are

inapplicable to Appellant. Having discerned no abuse of discretion or error

of law, we affirm the order below.

      Order affirmed. Jurisdiction relinquished.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/18




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