J-S45015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    RICARDO LOPEZ,

                             Appellant                No. 686 EDA 2019


            Appeal from the PCRA Order Entered February 15, 2019
             In the Court of Common Pleas of Philadelphia County
                          Criminal Division at No(s):
                           CP-51-CR-0406881-1998
                           CP-51-CR-0413751-2002


BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                     FILED OCTOBER 07, 2019

        Appellant, Ricardo Lopez, appeals pro se from the post-conviction

court’s February 15, 2019 order dismissing, as untimely, his petition for relief

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After

review, we affirm.

        Briefly, on December 29, 2003, Appellant pled guilty to second-degree

murder, robbery, and related offenses in a case docketed at CP-51-CR-

0413571-2002 (hereinafter “3571-2002”). That same day, he was sentenced

to an aggregate term of life imprisonment, without the possibility of parole.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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According to the PCRA court, that term of incarceration was imposed to run

concurrently to a life sentence that Appellant was serving in an unrelated case

docketed at number CP-51-CR-0406881-1998 (hereinafter “6881-1998”).1

       Appellant did not file a direct appeal. However, he filed a timely, pro se

PCRA petition on April 12, 2004, seeking the reinstatement of his direct appeal

rights. The PCRA court granted that request, and Appellant filed a nunc pro

tunc direct appeal. We affirmed his judgment of sentence on July 20, 2006.

Commonwealth v. Lopez, 907 A.2d 1135 (Pa. Super. 2006) (unpublished

memorandum). Appellant did not file a petition for allowance of appeal with

our Supreme Court.

       On August 23, 2012, Appellant filed the pro se PCRA petition underlying

the present appeal. Therein, he claimed he was serving an illegal sentence

under Miller v. Alabama, 567 U.S. 460, 479 (2012) (holding that “the Eighth

Amendment forbids a sentencing scheme that mandates life in prison without

possibility of parole for juvenile offenders”). Counsel was appointed, but for

some reason, no action was taken on Appellant’s petition.         Years later, a

different attorney entered his appearance on Appellant’s behalf, and on

January 14, 2019, that attorney filed a petition to withdraw and ‘no-merit’

letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

____________________________________________


1 In case 6881-1998, Appellant pled guilty on June 21, 1999, to murder,
robbery, and related offenses for crimes he committed on February 13, 1998,
just six days before he committed the murder in the present case.

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Counsel concluded that Appellant’s Miller claim was frivolous, as he admitted

in his petition that he was 18 years old at the time of his underlying crimes.

       On January 18, 2019, the PCRA court issued a Pa.R.Crim.P. 907 notice

of its intent to dismiss Appellant’s petition, but Appellant did not respond. On

February 15, 2019, the court issued an order dismissing his petition and

granting counsel’s petition to withdraw.

       Appellant filed a timely, pro se notice of appeal on March 1, 2019, listing

both the docket number for the present case, 3571-2002, as well as the docket

number in his other, unrelated case at number 6881-1998.2           On April 29,

2019, the court filed a Rule 1925(a) opinion.

       Herein, Appellant states one issue for our review, which we reproduce

verbatim:

       1. Whether failure for the court to under take in the ruling to
       address that Miller applies to him, as Miller drew a line at 18 year
       old violated his rights under the Fourteenth Amendment to the
       U.S. Constitution and Art. 1 sec.13 of the Pennsylvania
       Constitution pursuant to Miller v. Alabama 567 U.S. 460 (2012)
       and Montgomery v. Louisiana 136 S.Ct. 718 (20160.

Appellant’s Brief at 2.


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2  Appellant had also filed, on August 23, 2012, a PCRA petition in case 6881-
1998. The court ultimately entered an order dismissing the petition filed in
that case on August 13, 2018. Appellant filed a notice of appeal listing both
docket numbers 6881-1998 and 3571-2002. That appeal was docketed at
688 EDA 2019, but it was ultimately dismissed based on Appellant’s failure to
file a brief. We note that the electronically-filed certified record for the case
before us now, 3571-2002, was erroneously uploaded at docket number 688
EDA 2019 and is not contained in the electronic file for the present appeal at
686 EDA 2019.

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     Before we may address the merits of Appellant’s issue, we must consider

the impact of his filing a single notice of appeal listing two docket numbers.

In Commonwealth v. Williams, 206 A.3d 573 (Pa. Super. 2019), we

explained:

            Pennsylvania Rule of Appellate Procedure 341(a) directs
     that “an appeal may be taken as of right from any final order of a
     government unit or trial court.” Pa.R.A.P. 341(a). “The Official
     Note to Rule 341 was amended in 2013 to provide clarification
     regarding     proper    compliance    with    Rule     341(a)....”
     Commonwealth v. Walker, 185 A.3d 969, 976 (Pa. 2018). The
     Official Note now reads:

        Where ... one or more orders resolves issues arising on
        more than one docket or relating to more than one
        judgment, separate notices of appeals must be filed.
        Commonwealth v. C.M.K., 932 A.2d 111, 113 & n.3 (Pa.
        Super. 2007) (quashing appeal taken by single notice of
        appeal from order on remand for consideration under
        Pa.R.Crim.P. 607 of two persons’ judgments of sentence).

     Pa.R.A.P. 341, Official Note.

            In Walker, our Supreme Court construed the above-
     language as constituting “a bright-line mandatory instruction to
     practitioners to file separate notices of appeal.” Walker, 185 A.3d
     at 976-77. Therefore, the Walker Court 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.”
     Id. at 977. However, the Court tempered its holding by making
     it prospective only, recognizing that “[t]he amendment to the
     Official Note to Rule 341 was contrary to decades of case law from
     this Court and the intermediate appellate courts that, while
     disapproving of the practice of failing to file multiple appeals,
     seldom quashed appeals as a result.” Id. Accordingly, the
     Walker Court directed that “in future cases Rule 341 will, in
     accordance with its Official Note, require that when a single order
     resolves issues arising on more than one lower court docket,
     separate notices of appeal must be filed. The failure to do so will
     result in quashal of the appeal.” Id. (emphasis added).


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Id. at 575-76.

      The Walker opinion was filed on June 1, 2018. Appellant’s notice of

appeal listing two docket numbers was filed on March 1, 2019. Nevertheless,

we conclude that Walker and Rule 341 do not apply in this case, as the PCRA

court handled Appellant’s PCRA petitions filed in cases 6881-1998 and 3571-

2002 separately. Notably, the court issued orders dismissing those petitions

on different dates, and each order listed only one docket number. Therefore,

Appellant’s present appeal does not stem from “an order that resolves issues

arising on more than one docket.”     Walker, 185 A.3d at 977. Instead, it

arises from a single order resolving issues at only one docket number, case

3571-2002. Accordingly, the bright-line mandate of Rule 341 and Walker is

not applicable, and we will disregard Appellant’s error in adding the docket

number for case 6881-1998 to his pro se notice of appeal.

      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

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) (stating PCRA time limitations implicate our jurisdiction and may not be

altered or disregarded to address the merits of the petition). Under the PCRA,

any petition for post-conviction relief, including a second or subsequent one,

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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 PCRA

claim arose, section 9545(b)(2) required that any petition attempting to

invoke 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).3




____________________________________________


3 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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      Appellant’s judgment of sentence became final in 2006 and, thus, his

present petition, filed in 2012, is patently 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 fails to meet this burden. He contends that his mandatory

sentence of life incarceration without the possibility of parole is illegal under

Miller. Although Appellant concedes he was 18 at the time of his crimes, he

essentially avers that Miller’s holding was not “a bright line” rule that only

applies to individuals under 18 years of age. See Appellant’s Brief at 6. While

Appellant does not specify which exception he is attempting to prove with this

claim, we presume he seeks to satisfy the ‘new constitutional right’ exception

of section 9545(b)(1)(iii).

      As stated supra, Miller held that a mandatory sentence of life

incarceration, without the possibility of parole, violates the Eighth Amendment

when imposed upon a juvenile offender.          Miller, 567 U.S. at 479.      In

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

that Miller’s holding constitutes a new “substantive rule that is retroactive in

cases on collateral review.” Id. at 732. Accordingly, Miller created a new

constitutional right that has been held to apply retroactively.

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

banc), 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-

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recognized constitutional right exception in section 9545(b)(1)(iii).”   Id. at

10. We stressed “that age is the sole factor in determining whether Miller

applies to overcome the PCRA time-bar and we decline[d] to extend its

categorical holding.” Id. at 11 (emphasis added).

      Presently, Appellant admits that he was over the age of 18 at the time

of his crimes.   See Appellant’s Brief at 6.   Therefore, based on Lee, we

conclude that Appellant cannot rely on Miller to meet the timeliness exception

of section 9545(b)(1)(iii).

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/19




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