J-S86038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERRY M. KIGHTLINGER
Appellant No. 798 WDA 2016
Appeal from the PCRA Order May 12, 2016
In the Court of Common Pleas of Venango County
Criminal Division at No(s): CP-61-CR-0000339-1998;
CP-61-CR-0000340-1998
BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*
JUDGMENT ORDER BY GANTMAN, P.J.: FILED DECEMBER 16, 2016
Appellant, Terry M. Kightlinger, appeals pro se from the order entered
in the Venango County Court of Common Pleas, which dismissed his third
petition filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.
§§ 9541-9546. On November 20, 1998, a jury convicted Appellant of
second-degree murder and related offenses arising from his involvement in a
shooting death on March 3, 1998. Appellant was 18 years old at the time of
the incident. The court sentenced Appellant on December 3, 1998, to
mandatory life imprisonment without the possibility of parole (“LWOP”), and
a consecutive term of 48-120 months’ imprisonment. This Court affirmed
the judgment of sentence on September 13, 2000, and our Supreme Court
denied allowance of appeal on February 5, 2001. See Commonwealth v.
Kightlinger, 766 A.2d 888 (Pa.Super. 2000) (unpublished memorandum),
_____________________________
*Former Justice specially assigned to the Superior Court.
J-S86038-16
appeal denied, 567 Pa. 711, 785 A.2d 88 (2001). Appellant filed his first
PCRA petition on December 14, 2001, which the PCRA court dismissed on
December 29, 2003. This Court affirmed on January 11, 2006, and our
Supreme Court denied allowance of appeal on August 2, 2006. See
Commonwealth v. Kightlinger, 895 A.2d 648 (Pa.Super. 2006)
(unpublished memorandum), appeal denied, 588 Pa. 763, 903 A.2d 1233
(2006). Appellant unsuccessfully filed a second PCRA petition in 2012. On
February 18, 2016, Appellant filed the current pro se PCRA petition. The
PCRA court issued Rule 907 notice on April 8, 2016, and dismissed
Appellant’s petition on May 12, 2016. Appellant timely filed a pro se notice
of appeal. The PCRA court ordered Appellant to file a Rule 1925(b)
statement; Appellant timely complied.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Turner, 73 A.3d 1283 (Pa.Super. 2013), appeal denied,
625 Pa. 649, 91 A.3d 162 (2014). A PCRA petition must be filed within one
year of the date the underlying judgment becomes final. 42 Pa.C.S.A §
9545(b)(1). A judgment is deemed final at the conclusion of direct review or
at the expiration of time for seeking review. 42 Pa.C.S.A. § 9545(b)(3).
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). A petitioner asserting a timeliness
exception must file a petition within sixty days of the date the claim could
have been presented. 42 Pa.C.S.A. § 9545(b)(2). When asserting the
-2-
J-S86038-16
newly created constitutional right exception under Section 9545(b)(1)(iii), “a
petitioner must prove that there is a ‘new’ constitutional right and that the
right ‘has been held’ by that court to apply retroactively.” Commonwealth
v. Chambers, 35 A.3d 34, 41 (Pa.Super. 2011), appeal denied, 616 Pa.
625, 46 A.3d 715 (2012).
Instantly, Appellant relies upon two United States Supreme Court
decisions as the bases for an exception to the PCRA timeliness requirement
as well as for substantive PCRA relief: Miller v. Alabama, ___ U.S. ___,
132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (ruling unconstitutional mandatory
LWOP sentences for juvenile offenders), and Montgomery v. Louisiana
___ U.S. ___, 136 S.Ct. 718, 193 L.Ed.2d 599 (filed January 25, 2016, and
revised on January 27, 2016) (holding Miller applies retroactively to cases
on collateral review). Appellant filed the current PCRA petition on February
18, 2016, within sixty days of the Montgomery decision. Accordingly,
Appellant’s petition is timely. See Commonwealth v. Secreti, 134 A.3d 77
(Pa.Super. 2016) (holding date of Montgomery decision controls for
purposes of 60-day rule in 42 Pa.C.S.A. § 9545(b)(2)). Appellant correctly
observes that mandatory LWOP sentences for juvenile offenders are
unconstitutional under Montgomery/Miller. See id. (holding retroactivity
under Montgomery is effective as of date of Miller decision; orders denying
PCRA relief in cases involving Montgomery/Miller must be reversed and
remanded for resentencing consistent with this new rule of substantive law
and Commonwealth v. Batts, 620 Pa. 115, 131-32, 66 A.3d 286, 296
-3-
J-S86038-16
(2013)). At the time of the offense, however, Appellant was not a juvenile;
Appellant was over 18 years old. Therefore, Appellant is not entitled to relief
under Montgomery/Miller. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2016
-4-