J-S52034-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TILLMAN TYRONE STEWART
Appellant No. 740 EDA 2014
Appeal from the PCRA Order February 21, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0006664-2005
BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED SEPTEMBER 23, 2014
Appellant, Tillman Tyrone Stewart, appeals from the order entered in
the Bucks County Court of Common Pleas, denying his first petition filed
.S.A. §§ 9541-
9546. We affirm.
The relevant facts and procedural history of this case are as follows.
On August 19, 2005, Appellant shot and killed the victim after Appellant
fired a gun several times into a crowd of people. Appellant entered a
negotiated guilty plea on July 10, 2006, to second degree murder and
related offenses. That same day, the court sentenced Appellant to
mandatory life imprisonment without parole for the murder conviction. This
Court affirmed the judgment of sentence on April 1, 2008. See
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*Former Justice specially assigned to the Superior Court.
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Commonwealth v. Stewart, 953 A.2d 840 (Pa.Super. 2008) (unpublished
memorandum). Appellant did not file a petition for allowance of appeal with
our Supreme Court.
The docket entries indicate Appellant filed a counseled PCRA petition
on August 28, 2012. The PCRA court issued notice on January 6, 2014, of
21, 2014. On March 3, 2014, Appellant timely filed a counseled notice of
appeal. The PCRA court ordered Appellant on March 5, 2014, to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b), and Appellant timely complied on March 14, 2014.
Appellant raises the following issue for our review:
WHETHER THE TRIAL COURT ERRED BY FAILING TO APPLY
MILLER V. ALABAMA, GRAHAM V. FLORIDA AND
ROPER V. SIMMONS, WHICH STAND FOR THE
PROPOSITION THAT MEN UNDER AGE 25 DO NOT HAVE
FULLY DEVELOPED BRAINS, AND THEREFORE THEY
SHOULD BE TREATED AS JUVENILES FOR
CONSTITUTIONAL PURPOSES, THUS MAKING IT
UNCONSTITUTIONAL TO SENTENCE A MAN UNDER 25 TO
A MANDATORY MINIMUM OF LIFE WITHOUT PAROLE
(LWOP) FOR MURDER.
As a preliminary matter, we must determine whether Appellant timely
filed his PCRA petition. Commonwealth v. Harris, 972 A.2d 1196
(Pa.Super. 2009), appeal denied, 603 Pa. 684, 982 A.2d 1227 (2009).
Pennsylvania law makes clear no court has jurisdiction to hear an untimely
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PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157
(2003). The most recent amendments to the PCRA, effective January 16,
1996, provide that a PCRA petition, including a second or subsequent
petition, shall be filed within one year of the date the underlying judgment
becomes final. 42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Bretz, 830
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
The three statutory exceptions to the timeliness provisions in the PCRA
allow for very limited circumstances under which the late filing of a petition
will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a
petition must allege and the petitioner must prove:
(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.A. § 9545(b)(1)(i)-(iii).
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Additionally, a petitioner asserting a timeliness exception must file a
petition within sixty (60) days of the date the claim could have been
not filed within one year of the expiration of direct review, or not eligible for
one of the three limited exceptions, or entitled to one of the exceptions, but
not filed within 60 days of the date that the claim could have been first
brought, the trial court has no power to address the substantive merits of a
Commonwealth v. Gamboa-Taylor, 562 Pa.
70, 77, 753 A.2d 780, 783 (2000).
2008, upon expiration of the 30 days to file a petition for allowance of
appeal with our Supreme Court. The docket entries indicate Appellant filed
his PCRA petition on August 28, 2012, more than four (4) years after his
patently untimely. See 42 Pa.C.S.A. § 9545(b)(1).
Nevertheless, Appellant argues that new constitutional rights recently
recognized by the United States Supreme Court in Miller v. Alabama, ___
U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)1 excuse the untimeliness
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1
In Miller, the United States Supreme Court held that a mandatory
sentence of life imprisonment without the possibility of parole for those
under the age of eighteen (18) at the time of their crimes violates the Eighth
(Footnote Continued Next Page)
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of his PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1)(iii). Specifically,
Appellant alleges that under Miller, which Appellant contends applies
violation of Article I, Section 13 of the Pennsylvania Constitution. Appellant
acknowledges he was over eighteen (18) years-old at the time of the
offenses, but he claims that men under the age of twenty-five (25) years-old
have underdeveloped brains and should be treated as juveniles. Appellant
concludes this Court must vacate and remand for resentencing. We
disagree.
In the present case, Appellant was twenty-four (24) years-old when he
shot and killed the victim. Thus, Miller does not create for Appellant a
newly recognized constitutional right exception. See 42 Pa.C.S.A. §
9545(b)(1)(iii); Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa.Super.
2013) (explaining Miller did not create newly-recognized constitutional right
that serves as exception to PCRA time restrictions, where petitioners were
twenty-one (21) and nineteen (19) years old, respectively, when they
committed underlying crimes).
Moreover, the United States Supreme Court filed Miller on June 25,
2012. Thus, any petition alleging a newly recognized constitutional right had
_______________________
(Footnote Continued)
See Miller,
supra at ___, 132 S.Ct. at 2469, 183 L.Ed.2d at ___.
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to be filed by August 24, 2012. See Commonwealth v. Brandon, 51 A.3d
231 (Pa.Super. 2012) (explaining 60-day period runs from date of
underlying judicial decision for purposes of Section 9545(b)(1)(iii)). The
docket entries indicate Appellant filed his PCRA petition on August 28, 2012.
So, even if Miller could apply to Appellant, he failed to meet the 60-day
rule. See 42 Pa.C.S.A. § 9545(b)(2).2
In any event, on October 30, 2013, our Supreme Court announced
that Miller does not apply retroactively to judgments of sentence which
became final before the filing date of Miller (June 25, 2012). See
Commonwealth v. Cunningham, ___ Pa. ___, 81 A.3d 1 (2013). The
U.S. Supreme Court has denied certiorari in Cunningham. See
Cunningham v. Pennsylvania, 2014 WL 797250 (filed June 9, 2014).
Order affirmed.
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2
Appellant also cites the United States Supreme Court decisions in Roper v.
Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (dealing
with juveniles and death penalties), filed on March 1, 2005, and Graham v.
Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (dealing with
juveniles and life sentences for non-homicide offenses), filed on May 17,
2010. Neither case is apposite, because Appellant was not a juvenile when
he shot and killed the victim, Appellant did not receive the death penalty,
and Appellant committed a homicide.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/23/2014
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