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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARCEL J. COOK
Appellant No. 548 WDA 2016
Appeal from the PCRA Order March 10, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000391-1986
CP-02-CR-0000530-1986
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED OCTOBER 04, 2016
Appellant Marcel J. Cook appeals from the order entered in the
Allegheny County Court of Common Pleas, which dismissed his pro se
petition filed for relief pursuant to the Post Conviction Relief Act (“PCRA”). 1
We affirm.
This Court accurately set forth the relevant facts and procedural
history of this appeal as follows:2
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1
42 Pa.C.S. §§ 9541-9546.
2
This Court’s non-precedential decision at 1213 WDA 2014 affirmed the
order of the PCRA court that dismissed Appellant’s eleventh (11th) PCRA
petition.
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On July 22, 1986, Appellant entered a negotiated guilty
plea to second-degree murder and robbery charges, which
arose from the December 30, 1985 shooting of Donald
Stoker by Appellant’s accomplice. The court imposed a
mandatory term of life imprisonment for the murder
conviction and no additional penalty on the robbery count.
Thereafter, Appellant attempted unsuccessfully to
withdraw his guilty plea on several occasions, and
repeatedly sought both PCRA and habeas relief through
serial petitions. [Appellant’s eleventh] petition was filed on
July 6, 2012.… Appellant subsequently sought and
received leave to amend his petition to seek habeas corpus
relief. On February 4, 2014, Appellant filed a pro se
Amended Petition for Writ of Habeas Corpus claiming that
his sentence for a crime committed when he was
nineteen[3] years of age violated the Eighth Amendment’s
prohibition against cruel and unusual punishment…. [The
PCRA] court denied [Appellant’s eleventh] petition as time
barred by order dated June 25, 2014.
Commonwealth v. Cook, No. 1213 WDA 2014, unpublished memorandum
at 1-2 (Pa.Super. filed February 10, 2015).
On February 10, 2015, this Court affirmed the PCRA court order that
denied Appellant’s eleventh (11th) PCRA petition. On October 10, 2015,
Appellant filed another pro se PCRA petition, which the PCRA court dismissed
on December 22, 2015. On February 2, 2016, Appellant filed the present
pro se PCRA petition, his thirteenth. On February 25, 2016, the PCRA court
issued a notice of its intent to dismiss the petition pursuant to Pa.R.Crim.P.
907. Appellant filed a response to the court’s notice, and the PCRA court
dismissed the petition on March 10, 2016. On April 1, 2016, Appellant filed
____________________________________________
3
Appellant was actually twenty-five (25) years old when he committed the
crime.
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a timely notice of appeal. Both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
Appellant raises the following issue for our review:
WHETHER [APPELLANT’S] PETITION FOR POST-
CONVICTION RELIEF WAS TIMELY FILED AND THEREFORE
IMPROPERLY DISMISSED BY THE COURT, WHICH HAD
JURISDICTION TO ENTERTAIN IT?
Appellant’s Brief at 1.
The timeliness of a PCRA petition implicates the jurisdiction of both
this Court and the PCRA court. Commonwealth v. Williams, 35 A.3d 44,
52 (Pa.Super.2011), appeal denied, 50 A.3d 121 (Pa.2012). “Pennsylvania
law makes clear that no court has jurisdiction to hear an untimely PCRA
petition.” Id. To “accord finality to the collateral review process[,]” the
PCRA “confers no authority upon [appellate courts] to fashion ad hoc
equitable exceptions to the PCRA timebar[.]” Commonwealth v. Watts,
23 A.3d 980, 983 (Pa.2011). With respect to jurisdiction under the PCRA,
this Court has further explained:
The most recent amendments to the PCRA...provide a
PCRA petition, including a second or subsequent petition,
shall be filed within one year of the date the underlying
judgment becomes final. A judgment is deemed 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.
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)
(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011);
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see also 42 Pa.C.S. § 9545(b). This Court may review a PCRA petition filed
more than one year after the judgment of sentence becomes final only if the
claim falls within one of the following three statutory exceptions, which the
petitioner must plead and prove:
(i) the failure to raise the claim 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). Further, if a petition pleads one of these
exceptions, the petition will not be considered unless it is “filed within 60
days of the date the claim could have been presented.” 42 Pa.C.S. §
9545(b)(2).
Here, Appellant’s judgment of sentence became final on July 5, 1988,
when his time to appeal to our Supreme Court expired. See 42 Pa.C.S. §
9545(b)(3). Appellant’s patently untimely PCRA petition, filed February 2,
2016, fails to plead and prove any of the statutory exceptions to the PCRA
time bar.
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Appellant attempts to invoke the constitutional right exception to the
PCRA time bar provided by 42 Pa.C.S. § 9545(b)(1)(iii). He claims that he is
entitled to post-conviction relief because his life sentence was
unconstitutional pursuant to the Supreme Court of the United States’
holdings in Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 2469, 183 L.
Ed. 2d 407 (2012) and Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct.
718, 724, 193 L. Ed. 2d 599 (2016), as revised (Jan. 27, 2016).
In Miller, the Supreme Court held that a life sentence without the
possibility of parole for juvenile offenders violates the constitutional right
provided by the Eighth Amendment of the United States Constitution to be
free from cruel and unusual punishment. Miller, 132 S.Ct. at 2469. In
Montgomery, the Supreme Court held that this new substantive rule
applies retroactively to cases on collateral review. Montgomery, 136 S.Ct.
at 724. Neither of these cases, nor any other United States Supreme Court
or Pennsylvania Supreme Court cases, held that a life sentence for an adult
offender violates one’s Eighth Amendment constitutional right or that such
substantive right applies retroactively.
Appellant claims that, although he was over eighteen years old when
he committed his crime, the Supreme Court’s holding in Miller should apply
to him due to his delayed maturity and history of abuse. Unfortunately for
Appellant, Miller does not create a newly-recognized constitutional right
that can serve as the basis of relief for young adults. See Commonwealth
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v. Cintora, 69 A.3d 759, 764 (Pa.Super.2013), appeal denied, 81 A.3d 75
(Pa.2013) (rejecting nineteen-year-old and twenty-five-year-old’s claims
that Miller extends to individuals whose brains were not fully developed at
time of crimes). Further, this Court previously rejected this very claim when
it affirmed the PCRA order dismissing Appellant’s eleventh petition filed for
relief. See Cook, supra.
Because Appellant failed to plead and prove any of the statutory
exceptions to the PCRA time limitation, the PCRA court correctly determined
that it lacked jurisdiction to hear this untimely PCRA petition, and we
likewise are without jurisdiction to hear Appellant’s claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/4/2016
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