J-S01004-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTONIO J. DADE                            :
                                               :
                       Appellant               :   No. 363 EDA 2019

             Appeal from the PCRA Order Entered January 2, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0212731-1989


BEFORE:      BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BOWES, J.:                            FILED FEBRUARY 11, 2020

        Antonio J. Dade appeals from the January 2, 2019 order dismissing his

Post-Conviction Relief Act (“PCRA”) petition as untimely. We affirm.

        Following his conviction of first-degree murder, aggravated assault,

recklessly endangering another person, and possession of an instrument of

crime, Appellant was sentenced on March 5, 1990 to a mandatory term of life

imprisonment without possibility of parole (“LWOP”). This Court affirmed his

judgment of sentence on direct appeal, and the Supreme Court denied further

review.      Commonwealth v. Dade, 599 A.2d 699 (Pa.Super. 1991)

(unpublished memorandum), appeal denied, 605 A.2d 332 (Pa. 1992).

Hence, Appellant’s judgment of sentence became final in 1992, ninety days


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*   Retired Senior Judge assigned to the Superior Court.
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after the Supreme Court denied allowance of appeal, when he did not seek

certiorari from the United States Supreme Court.

     Thereafter, Appellant filed four PCRA petitions, all of which were denied

or dismissed, and we affirmed the dispositions on appeal. In this, his fifth

PCRA petition, Appellant maintained that his mandatory LWOP exceeded the

lawful maximum and sought correction of his sentence.         He alleged that

although he was twenty years old when he committed the crimes for which he

received that sentence, the prohibition in Miller v. Alabama, 567 U.S. 460

(2012), against such a sentence for those under the age of eighteen should

apply to him.

     Appellant conceded that his petition was facially untimely, as it was filed

almost twenty-five years after his judgment of sentence became final.

However, Appellant invoked the timeliness exception for a newly-recognized

constitutional right in 42 Pa.C.S. § 9545(b)(1)(iii), and maintained that he

filed his petition within sixty days of the Supreme Court’s decision in

Montgomery v. Louisiana, 136 S.Ct. 718 (2016), holding the new

constitutional right announced in Miller to be retroactive. See 42 Pa.C.S.

§ 9545(b)(2).

     On September 17, 2018, the PCRA court served Pa.R.Crim.P. 907 notice

of its intent to dismiss Appellant’s petition without a hearing on timeliness

grounds. Appellant filed a timely response in which he advanced arguments

in support of the applicability of the newly-recognized constitutional right


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exception to the one-year time bar.      The PCRA court found the exception

inapplicable to Appellant and dismissed his petition as untimely, holding that

the Miller holding was specifically limited to juveniles under the age of

eighteen years at the time of the offense who were sentenced to LWOP. See

Rule 907 Notice, 9/17/18, at 1. Since Appellant was over the age of eighteen

at the time of the offense, the court found that his sentence was outside the

reach of Miller. Id. Thus, the court concluded that Appellant had failed to

plead and prove the exception to the one-year time bar of the PCRA for newly-

recognized constitutional rights, and that it was without jurisdiction to

consider the merits of his claim or offer relief. Id.

      After the PCRA court dismissed the petition as untimely, Appellant timely

appealed. He presents two issues for our review, the first of which implicates

the timeliness of his petition:

      I.    Did the PCRA court 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 and made retroactive
            in Montgomery, which met the timeliness exception under
            Title 42 Pa.C.S.A. 9545(b)(1)(iii).

      II.   The [Appellant] asserts that the mandatory life without
            possibility of parole sentence imposed in the case at bar
            violates the Eighth Amendment’s prohibition against cruel
            and unusual punishment. Also, that a clear violation of
            statute 1 Pa.C.S. [§]1901, which states “that a minor is
            defined as an individual under 21” and the Statutory
            Construction Act 1 Pa.C.S. [§]1501 which states the same
            was ignored.




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Appellant’s brief at 4 (unnecessary capitalization omitted).1

        The threshold issue before us is whether Appellant pled and offered to

prove the applicability of a timeliness exception. The law is well settled that

the PCRA’s time restrictions are jurisdictional.         See Commonwealth v.

Williams, 105 A.3d 1234, 1239 (Pa. 2014). It is the petitioner’s burden to

allege and prove that a timeliness exception applies, and unless that burden

is met, we cannot consider the merits of his claim.              Commonwealth v.

Edmiston, 65 A.3d 339, 346 (Pa. 2013). In reviewing the denial of PCRA

relief, we examine whether the PCRA court’s determination is supported by

the record and free of legal error. Commonwealth v. Robinson, 139 A.3d

178, 185 (Pa. 2016).

        Appellant   contends     that    his   LWOP   sentence    was   held   to   be

unconstitutional in Miller. He maintains that although he was twenty years

old at that time, he suffered from the same “transient immaturity of youth”

as those individuals under the age of eighteen granted sentencing relief in

Miller, and that he is entitled to similar relief. Appellant’s brief at 11.

        The argument advanced by Appellant has been addressed and rejected

by this Court. In Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.Super.

2016), we held that the Miller decision expressly applied to only those

defendants who were “under the age of 18 at the time of their crimes.’”



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1   The Commonwealth did not file a brief.

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Miller, supra at 465.         In Furgess, the nineteen-year-old appellant also

argued that he possessed the same characteristics of youth as an eighteen

year old, and that the Miller rationale should apply to him. We recognized,

however, that the appellant’s argument undercut any contention that he was

within the scope of the Miller decision, and was an attempt to seek “an

extension of Miller to persons convicted of murder who were older at the time

of their crimes than the class of defendants subject to the Miller holding.”

Furgess, supra at 94. We dismissed the notion that persons over the age of

eighteen when they committed their crimes could rely upon the expansion of

Miller to bring themselves within the ambit of the Miller decision, or to bring

themselves within the time-bar exception in § 9545(b)(1)(iii).            See

Commonwealth. v. Cintora, 69 A.3d 759 (Pa.Super. 2013) (holding that a

contention that a newly-recognized constitutional right should be extended to

include others does not render a petition seeking such expansion timely

pursuant to § 9545(b)(1)(iii)).2

       For the foregoing reasons, the PCRA court correctly concluded that

Appellant had failed to plead and prove that the newly-recognized




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2 Appellant asks us to overrule Commonwealth v. Furgess, 149 A.3d 90
(Pa.Super. 2016), and Commonwealth v. Cintora, 69 A.3d 759 (Pa.Super.
2013). However, those decisions remain binding precedent until they are
overruled by an en banc panel of this Court, or overturned by our Supreme
Court. See Commonwealth v. Karash, 175 A.3d 306, 307 (Pa.Super. 2017)
(“a panel of this Court cannot overrule the decision by another panel”).

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constitutional right exception was applicable, and that it lacked jurisdiction to

consider Appellant's untimely PCRA petition. We therefore affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/11/20




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