J-S35039-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 :          IN THE SUPERIOR COURT OF
                                             :                PENNSYLVANIA
             v.                              :
                                             :
ERNEST BENJAMIN,                             :
                                             :
                     Appellant               :             No. 2615 EDA 2015

             Appeal from the PCRA Order entered on July 29, 2015
             in the Court of Common Pleas of Philadelphia County,
               Criminal Division, No(s): CP-51-CR-0332721-1993

BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E. and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                                FILED JUNE 08, 2016

        Ernest Benjamin (“Benjamin”) appeals, pro se, from the Order denying

his second Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        On March 31, 1994, following a non-jury trial, Benjamin was found

guilty of murder in the second degree, robbery, criminal conspiracy,

possession of an instrument of crime, and a violation of the Uniform

Firearms Act.     The trial court sentenced Benjamin to life in prison.         This

Court     affirmed   the   judgment    of    sentence     in   July   1995.     See

Commonwealth          v.   Benjamin,   668       A.2d   1186   (Pa.   Super.   1995)

(unpublished memorandum).

        On June 15, 2006, Benjamin filed a pro se Petition for Writ of Habeas

Corpus.     The PCRA court treated the Petition as a PCRA Petition, and

subsequently dismissed the Petition without a hearing. This Court affirmed
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the dismissal. See Commonwealth v. Benjamin, 6 A.3d 557 (Pa. Super.

2010), appeal denied, 17 A.3d 1250 (Pa. 2011).

      On May 15, 2012, Benjamin filed the instant pro se Petition.           On

August 15, 2012, Benjamin filed an Amended PCRA Petition. The PCRA court

issued a Pennsylvania Rule of Criminal Procedure 907 Notice of Intent to

Dismiss without an Evidentiary Hearing. Benjamin filed a Response to the

Rule 907 Notice. The PCRA court denied the Petition, after which Benjamin

filed a timely Notice of Appeal.

             We review an order d[enying] a petition under the PCRA in
      the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      Initially, under the PCRA, any PCRA petition “including a second or

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

becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). 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.”    Id. § 9545(b)(3).      The PCRA’s timeliness requirements are

jurisdictional in nature and a court may not address the merits of the issues




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raised if the PCRA petition was not timely filed.         Commonwealth v.

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

      Here, Benjamin’s judgment of sentence became final in August 1995.

Thus, Benjamin had until August 1996 to file a PCRA petition.           Because

Benjamin did not file his second PCRA Petition until 2012, his Petition is

facially untimely.

      However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of three exceptions set forth

under 42 Pa.C.S.A. § 9545(b)(1)(i)(iii). Any PCRA petition invoking one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.

      In his brief, Benjamin raises various ineffective assistance of counsel

claims.   However, Benjamin did not explicitly raise these claims in his

Amended PCRA Petition. See Commonwealth v. Santiago, 855 A.2d 682,

691 (Pa. 2004) (stating that “a claim not raised in a PCRA petition cannot be

raised for the first time on appeal.”). Nevertheless, even if the claims had

been properly preserved, “allegations of ineffective assistance of counsel will

not overcome the jurisdictional timeliness requirements of the PCRA.”

Commonwealth         v.   Wharton,   886   A.2d   1120,   1127   (Pa.    2005).

Additionally, Benjamin claims that the trial judge committed various legal

violations and should have recused herself based upon her conduct at trial.

Again, Benjamin did not raise these claims in his Amended PCRA Petition.



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See Santiago, 855 A.2d at 691. Further, these claims are not cognizable

under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2).

      We note that in his Amended PCRA Petition, Benjamin cites the

Supreme Court’s recent decision in Miller v. Alabama, 132 S. Ct. 2455

(2012), and invokes the newly recognized constitutional right exception at

42 Pa.C.S.A. § 9545(b)(1)(iii). In Miller, the United States Supreme Court

held that sentencing schemes that mandate life in prison without parole for

defendants who committed their crimes while under the age of eighteen

violate   the   Eighth   Amendment’s    prohibition   on   “cruel   and   unusual

punishments.” Miller, 132 S. Ct. at 2460; see also id. at 2469 (reasoning

that in light of a juvenile’s diminished culpability and heightened capacity for

change, mandatory juvenile sentencing schemes pose too great a risk of

disproportionate punishment, in contravention of the Eighth Amendment). 1

      Here, the Supreme Court in Miller set forth a bright-line rule holding

mandatory sentences of life without parole unconstitutional for defendants

under the age of eighteen.     Benjamin admits that he was over eighteen

years old at the time he committed the murder; thus, Miller does not apply.

      Order affirmed.




1
 In Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the United States
Supreme Court held that its decision in Miller applies retroactively.
Montgomery, 136 S. Ct. at 736.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/8/2016




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