J-S37030-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DWAYNE M. MORNINGWAKE

                            Appellant                No. 2120 MDA 2013


            Appeal from the PCRA Order entered November 4, 2013
                 In the Court of Common Pleas of York County
               Criminal Division at No: CP-67-CR-0001999-1988


BEFORE: LAZARUS, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                         FILED AUGUST 25, 2014

       Appellant, Dwayne M. Morningwake, appeals from the November 4,

2013 order of the York County Court of Common Pleas denying his petition

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

9546. Upon review, we conclude the petition is untimely. Accordingly, we




history of the case.1 For a recitation of the factual background, we direct the
____________________________________________


1
                                                      occurred in June 1988,
when Appellant was approximately fifteen years and 11 months old. On
April 14, 1989, a jury convicted Appellant of murder in the first degree,
robbery, burglary, and criminal conspiracy to commit murder.                On
September 4, 1990, the trial court sentenced Appellant to life imprisonment
for murder in the first degree, 8 to 16 years incarceration for robbery, 1 to 2
years incarceration for burglary, and no further penalty for criminal
conspiracy. This Court affirmed the judgment of sentence on direct appeal
(Footnote Continued Next Page)
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appeal and first PCRA petition.

      Appellant raises the following issue for our review:


      [p]etition on the grounds that the court did not have jurisdiction
      to hear the matter because of the ruling in Commonwealth v.
      Cunningham, 81 A.3d 1 (Pa. 2013)?



      Before we can address the merits of the claims, we must determine

the timeliness of the instant PCRA petition because we have no jurisdiction

to   entertain   any     review     of   the     claim   if   the   petition   is   untimely.

Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011).2



                       _______________________
(Footnote Continued)

on July 25, 1991. See Commonwealth v. Morningwake, 595 A.2d 158

allowance appeal on November 25, 1991.             See Commonwealth v.
Morningwake, 600 A.2d 535 (Pa. 1991). Appellant then filed a petition for
writ of mandamus with the Pennsylvania Supreme Court, which was denied
on April 21, 1994. Appellant filed his first PCRA petition in May 2005. After
the trial court denied relief, this Court affirmed the denial in 2007. See
Commonwealth v. Morningwake, 944 A.2d 796 (Pa. Super. 2007)
(unpublished memorandum)
2
  The timeliness requirements also apply to challenges to the legality of
sentence. See Commonwealth v. Holmes, 933 A.2d 57, 60 (Pa. 2007)
            legality of sentence is always subject to review within the PCRA,
claims must still first satisfy the       time limits or one of the exceptions
thereto.            Commonwealth v. Fahy, 737 A.2d 214, 223 (1999)).
Similarly, the constitutional dimension of the allegations does not shield
from the jurisdictional time bar. See, e.g., Commonwealth v. Turner, 80
A.3d 754, 767 (Pa. 2013).



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J-S37030-14



     The PCRA contains the following restrictions governing the timeliness

of any PCRA petition.

     (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.
     (2) Any petition invoking an exception provided in paragraph (1)
     shall be filed within 60 days of the date the claim could have
     been presented.
     (3) For purposes of this subchapter, a judgment 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).



after November 25, 1991, when the Pennsylvania Supreme Court denied his

petition for allowance of appeal. See 42 Pa.C.S.A. § 9545(b)(3); U.S. Sup.

Ct. R. 13; see also Commonwealth v. Monaco, 996 A.2d 1076, 1081 n.2




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J-S37030-14



(Pa. Super. 2010). The instant PCRA petition, which is the second one, is

patently untimely because it was filed on June 30, 2010.

       The one-year time limitation can be overcome if a petitioner alleges

and proves one of the exceptions set forth in Section 9545(b)(1)(i)-(iii).

Here, however, Appellant did not even try to allege any exception. 3 In fact,

                                                          tension of the existing

PCRA time-

                                                    Commonwealth v. Eller, 807

A.2d 838 (Pa. 2002), and then again in [Commonwealth v. Robinson, 837

A.2d 1157 (Pa. 2003)], we do not have authority to create ad hoc equitable

exceptions to the PCRA time-bar                  Commonwealth v. Johnson, 841

A.2d 136, 140 (Pa. Super. 2003). Accordingly, we conclude the petition is

untimely, and the trial court properly dismissed the petition.

       Order affirmed.


____________________________________________


3
    As also noted by Appellant, the only exception potentially relevant for

in Miller v. Alabama, __ U.S. ___, 132 S.Ct. 2455 (2012). Appellant
acknowledges, however, that our Supreme Court in Cunningham held that
                              an on sentencing schemes that impose a
mandatory life sentence without the possibility of parole for juveniles
announced in Miller does not apply retroactively. Cunningham, 81 A.3d at
10. As such, Appellant acknowledges he cannot rely on Miller to establish
                                      See also Commonwealth v. Seskey,
86 A.3d 237, 243 (Pa. Super. 2014) (Miller does not apply retroactively and
does not permit assertion of otherwise time-barred Eight Amendment claim
under the subsection 9545(b)(1)(iii) exception).



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J-S37030-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2014




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