J-S37042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CARL THOMPSON                              :
                                               :
                       Appellant               :   No. 2368 EDA 2017

                   Appeal from the PCRA Order June 21, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0803561-1985


BEFORE:      OLSON, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                            FILED JULY 26, 2018

        Appellant, Carl Thompson, appeals from the order entered in the Court

of Common Pleas of Philadelphia County dismissing his sixth petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546, as untimely. We affirm.

        On March 21, 1986, a jury found Appellant guilty of third-degree

murder, aggravated assault, criminal conspiracy, and possession of an

instrument of crime. Appellant was 30 years old at the time he committed

these offenses.

        Thereafter, the trial court sentenced Appellant to serve life in prison for

the murder conviction pursuant to 42 Pa.C.S. § 9715(a)1, as Appellant had a

____________________________________________


1   42 Pa.C.S.A. § 9715 provides in relevant part as follows:



____________________________________
* Former Justice specially assigned to the Superior Court.
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prior conviction for third-degree murder in 1973.          This Court affirmed

Appellant’s judgment of sentence on January 19, 1988, and the Pennsylvania

Supreme Court denied allocatur on September 19, 1988. Appellant took no

appeal to the United States Supreme Court.

       Between October 1988 and June 13, 2013, Appellant filed five

unsuccessful PCRA petitions. Appellant filed, pro se, the instant PCRA petition,

his sixth, on March 14, 2016.           Among numerous other issues, Appellant

alleged in this latest petition that the trial court’s use of his 1973 murder

conviction as the predicate to enhance the sentence imposed for his 1986

murder conviction pursuant to section 9715 was unconstitutional under Miller

v. Alabama, 132 S.Ct. 2455, 2460 (2012) (holding “mandatory life without

parole for those under the age of 18 at the time of their crime violates the

Eighth Amendment’s prohibition on ‘cruel and unusual punishment.’”).

____________________________________________


       § 9715. Life imprisonment for homicide.

       (a) Mandatory life imprisonment.—Notwithstanding the
       provisions of section 9712 (relating to sentences for offenses
       committed with firearms), 9713 (relating to sentences for offenses
       committed on public transportation) or 9714 (relating to
       sentences for second and subsequent offenses), any person
       convicted of murder of the third degree in this Commonwealth
       who has previously been convicted at any time of murder or
       voluntary manslaughter in this Commonwealth or of the same or
       substantially equivalent crime in any other jurisdiction shall be
       sentenced to life imprisonment, notwithstanding any other
       provision of this title or other statute to the contrary.

42 Pa.C.S.A. § 9715(a).



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Because he was only 17 years old when he committed the 1973 murder,

Appellant argued, Miller invalidates the use of that conviction to impose an

enhanced sentence of life without the possibility of parole for the third-degree

murder he committed when he was 30 years old.

      On March 20, 2017, the PCRA court issued a Pa.R.Crim.P. 907 notice of

intent to dismiss the petition, to which Appellant filed a response on April 5,

2017. On June 21, 2017, the PCRA court dismissed the petition as untimely.

This timely appeal follows.

      In Appellant’s pro se brief, he presents the following question for our

consideration:

      WHETHER 42 Pa.C.S. § 9715 RAISES THE LEGALLY
      PRESCRIBED STATUTORY MAXIMUM OF THIRD DEGREE
      MURDER TO A TERM OF LIFE RESULTING IN AN ILLEGAL
      SENTENCE?

Appellant’s brief, at 2.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court's determination and whether the PCRA court's

decision is free of legal error. Commonwealth v. Phillips, 31 A.3d 317, 319

(Pa.Super. 2011). The PCRA court's findings will not be disturbed unless there

is no support for the findings in the certified record. Id.

      Initially, we   address whether Appellant satisfied the timeliness

requirements of the PCRA. The timeliness of a PCRA petition is a jurisdictional

threshold and may not be disregarded in order to reach the merits of the

claims raised in a PCRA petition that is untimely. Commonwealth v. Murray,


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753 A.2d 201, 203 (Pa. 2000).            Effective January 16, 1996, the General

Assembly amended the PCRA to require a petitioner to file any PCRA petition

within one year of the date the judgment of sentence becomes final.              42

Pa.C.S.A. § 9545(b)(1).          A judgment of sentence “becomes 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.A. § 9545(b)(3). Where

a petitioner's judgment of sentence became final on or before the effective

date of the amendment, a special grace proviso extended the time for filing a

first PCRA petition until January 16, 1997. See Commonwealth v. Alcorn,

703 A.2d 1054, 1056–1057 (Pa.Super.1997) (discussing application of PCRA

timeliness proviso).

        However, we may accept a patently untimely petition when it alleges,

and the petitioner proves, that any of the three limited exceptions to the time

for filing the petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii),

are met.2 A petition invoking one of these exceptions must be filed within 60
____________________________________________


2   The 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



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days of the date the claim could first have been presented. 42 Pa.C.S.A. §

9545(b)(2).

       Our review of the record reflects that Appellant's judgment of sentence

became final on or about December 19, 1988, ninety days after the

Pennsylvania Supreme Court denied allocatur and the time for seeking writ of

certiorari with the United States Supreme Court expired. See 42 Pa.C.S.A. §

9545(b)(3); SUP. CT. R. 13. Accordingly, Appellant's judgment of sentence

became final prior to the effective date of the PCRA amendments. Appellant's

instant PCRA petition, filed on March 14, 2016, does not qualify for the grace

proviso as it was neither Appellant's first PCRA petition nor was it filed before

January 16, 1997. Thus, the instant PCRA petition is patently untimely.

       As previously stated, if a petitioner does not file a timely PCRA petition,

his petition may nevertheless be received under any of the three limited

exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.A. §

9545(b)(1), provided, additionally, that petitioner filed the petition within 60

days of the date the exception could first have been presented, pursuant to

section 9545(b)(2). Appellant attempts to invoke the third exception to the

PCRA timeliness requirements, i.e., “the right asserted is a constitutional right
____________________________________________


       (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.A. § 9545(b)(1)(i), (ii), and (iii).



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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.A. §

9544(b)(1)(iii). Specifically, Appellant contends the PCRA court erred in not

applying Miller to his case, as the United States Supreme Court subsequently

held in Montgomery v. Louisianna, 136 S.Ct. 718 (2016) that Miller applied

retroactively for purposes of collateral review as of the date of the Miller

decision on June 25, 2012. Appellant filed the instant PCRA petition on March

14, 2016, which was within 60 days of Montgomery (decided January 25,

2016), so he satisfied the diligence requirement under section 9545(b)(2).

      Nevertheless, Appellant's Miller claim fails because he was 30 years old

at the time he committed the instant murder, and Miller only applies to

individuals who were juveniles when they committed the crime on which their

current conviction is based. See Commonwealth v. Lawson, 90 A.3d 1, 6

(Pa.Super. 2014). To the extent Appellant argues that his life sentence is

unconstitutional under Miller because it is based in part on the earlier murder

he committed when he was a juvenile, our decision in Lawson previously

rejected such an argument:

      In an effort to circumvent the fact that he was thirty-three years
      old at the time he committed the instant murder, [Petitioner
      Lawson] asserts that his age at the time of his most current
      offense is not the only age that matters for purposes of his
      mandatory life sentence. [Lawson]'s Brief at 13. He specifically
      claims that “the application of the mandatory sentence called for
      in 42 Pa.C.S.A. [§] 9715 through the use of prior juvenile conduct
      as a predicate offense violates the new requirements of Miller,”


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     and that “[a] sentencing court should be required to consider the
     mitigating qualities of [his] youth from the time of his first offense
     as well as the individual circumstances attendant to that juvenile
     conduct.”    Id.    Essentially, [Lawson] contends that it was
     unconstitutional to sentence him to a mandatory term of life
     imprisonment without the possibility of parole under the recidivist
     statute because he committed his previous murder while he was
     a juvenile.

     We observe that three Federal Courts of Appeal have completely
     discredited [Lawson]'s argument that the holding in Miller should
     be applied to persons who have committed crimes as adults and
     sentenced to serve mandatory terms of life imprisonment without
     the possibility of parole based upon statutes that take into account
     prior juvenile conduct. See United States v. Hoffman, 710 F.3d
     1228, 1233 (11th Cir.2013) (per curiam) (stating that “[n]othing
     in Miller suggests that an adult offender who has committed prior
     crimes as a juvenile should not receive a mandatory life sentence
     as an adult, after committing a further crime as an adult”); United
     States v. Orona, 724 F.3d 1297, 1309–1310 (10th Cir.2013)
     (holding that the use of the defendant's juvenile adjudication as a
     predicate offense for recidivist-statute purposes does not violate
     the Eighth Amendment's ban on cruel and unusual punishment as
     contemplated by various United States Supreme Court decisions,
     including Miller); United States v. Hunter, 735 F.3d 172, 176
     (4th Cir.2013) (explaining Miller was inapplicable in case where
     the defendant, an adult sentenced to mandatory term of life
     imprisonment without parole, was not being punished for a crime
     he committed as a juvenile because sentence enhancements do
     not themselves constitute punishment for the prior criminal
     convictions that trigger them, but was being punished for the
     recent offense he committed at an age that rendered him
     responsible for his actions).

     On a similar note, in Commonwealth v. Scott, 345 Pa.Super.
     86, 497 A.2d 656 (1985), a panel of this Court addressed whether
     42 Pa.C.S.A. § 9715 violated the appellant's ex post facto rights.
     In Scott, we held that the statute imposing a life sentence for a
     conviction of third-degree murder on anyone who had previously
     been convicted at any time of murder or manslaughter did not
     violate the ex post facto clause because the crime committed by
     Scott after the effective date of the law was the crime that brought
     Scott within the ambit of the statute, not the prior crime which
     was used for enhancement purposes. Id. at 658.

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      Likewise, we are compelled to conclude that the application of
      section 9715 to [Lawson]'s instant conviction of murder,
      committed when [Lawson] was thirty-three years old, did not
      increase the sentence [Lawson] received for his prior murder
      conviction, committed when [Lawson] was a juvenile. Rather,
      section 9715 applied only to the instant murder and did not
      change the punishment for the predicate offense of murder,
      committed while [Lawson] was a juvenile. We further conclude
      that Miller does not apply to an adult offender who has committed
      third-degree murder as a juvenile and receives a mandatory
      sentence of life imprisonment without the possibility of parole
      pursuant to 42 Pa.C.S.A. § 9715. Accordingly, we hold that the
      imposition on [Lawson], who was convicted as an adult of third-
      degree murder, of a mandatory life sentence without the
      possibility of parole based, in part, on a prior third-degree murder
      conviction as a juvenile, does not constitute cruel and unusual
      punishment under either the United States or Pennsylvania
      Constitution.

Lawson, 90 A.3d at 6-8. For the reasons expressed in Lawson, Appellant

may not avail himself of an exception to the PCRA time-bar through application

of Miller.

      Finally, Appellant claims he qualifies for a section 9545(b)(1)(iii)

exception because the trial court’s reliance on his 1973 murder conviction to

impose a life sentence for his 1986 murder conviction violated Alleyne v.

United States, 570 U.S. 99 (2013) (holding any fact that increases the

penalty for a crime is considered an element of the crime and must be found

beyond a reasonable doubt by the factfinder).        Alleyne, however, is not

applicable to the instant matter because Appellant's case was at the collateral

stage when Alleyne was decided on June 23, 2013, and Alleyne does not

apply retroactively to cases on collateral review.   See Commonwealth v.

Washington, 142 A.3d 810, 820 (Pa. 2016) (“We hold that Alleyne does not


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apply retroactively to cases pending on collateral review[.]”). “If [Alleyne]

does not apply retroactively, then a case extending [Alleyne] should not

apply retroactively.” Walker v. United States, 810 F.3d 568, 575 (8th Cir.

2016).

      Even if application of Alleyne were not precluded under Washington,

Appellant would not be entitled to the benefits of Alleyne. The mandatory

minimum sentence imposed on Appellant under 42 Pa.C.S.A. § 9715 would

not be affected by Alleyne because the fact of his prior conviction was not

required to be submitted to the jury and found beyond a reasonable doubt

before forming the basis of a mandatory minimum sentence. See Alleyne,

133 S.Ct. at 2160 n.1. See also Commonwealth v. Bragg, 133 A.3d 328

(Pa.Super. 2016) (noting mandatory minimum sentence statute based on

prior convictions not rendered unconstitutional by Alleyne).

      Because Appellant’s facially untimely sixth petition fails to invoke a valid

exception to the timeliness requirements of the PCRA, Appellant is not entitled

to relief.   Therefore, the PCRA court properly dismissed Appellant’s PCRA

petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/18




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