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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KERPER YENGLEE,
Appellant No. 1078 MDA 2016
Appeal from the PCRA Order May 24, 2016
in the Court of Common Pleas of Luzerne County
Criminal Division at No.: CP-40-CR-0003311-2001
BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JANUARY 06, 2017
Appellant, Kerper Yenglee, appeals, pro se, from the order of May 24,
2016, dismissing, without a hearing, his fifth petition filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Because the
petition is untimely without an applicable exception, we affirm.
We take the underlying facts and procedural history in this matter
from our independent review of the certified record. Appellant fatally shot a
man on a street in Wilkes-Barre, Luzerne County, Pennsylvania in December
2000. In March 2002, a jury convicted him of murder of the first degree,
and the trial court immediately sentenced him to life in prison without the
possibility of parole. On December 2, 2003, this Court affirmed the
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*
Retired Senior Judge assigned to the Superior Court.
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judgment of sentence. (See Commonwealth v. Yenglee, 844 A.2d 1291
(Pa. Super. 2003) (unpublished memorandum)). Appellant did not seek
leave to appeal to the Pennsylvania Supreme Court.
Appellant filed PCRA petitions in 2004, 2006, 2009, and 2012. The
PCRA court dismissed all the petitions, and this Court affirmed their
dismissals on appeal.
On March 22, 2016, Appellant, acting pro se, filed the instant, fifth
PCRA petition seeking to vacate his sentence pursuant to Miller v.
Alabama, 132 S.Ct. 2455 (2012), which was held to be retroactive on state
collateral review in Montgomery v. Louisiana, 136 S.Ct. 718 (2016). On
April 14, 2016, the PCRA court issued notice of its intent to dismiss the
petition pursuant to Pennsylvania Rule of Criminal Procedure 907(1).
Appellant filed a response on May 9, 2016. On May 24, 2016, the PCRA
court dismissed the petition as untimely. The instant, timely appeal
followed.1
On appeal, Appellant raises the following question for our review:
1. Did the [PCRA] court err by dismissing the properly filed PCRA
[p]etition without a hearing finding that relief was not
warranted in accordance with Miller?
(Appellant’s Brief, at 5).
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1
The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). On July 26, 2016, it filed
an opinion. See Pa.R.A.P. 1925(a).
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Our standard of review for an order denying PCRA relief is well-settled:
This Court’s standard of review regarding a PCRA court’s
order is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Great deference is granted to the findings of the PCRA court, and
these findings will not be disturbed unless they have no support
in the certified record. . . .
Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations
and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a
trial court has no jurisdiction to entertain the petition.” Commonwealth v.
Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).
Here, Appellant filed his PCRA petition on March 22, 2016. The PCRA
provides that “[a]ny petition under this subchapter, 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). Appellant’s judgment of
sentence became final on January 2, 2004, thirty days after this Court
affirmed the judgment of sentence and Appellant did not seek review with
Pennsylvania Supreme Court. See 42 Pa.C.S.A. § 9544(b)(3). Because
Appellant did not file his current petition until March 22, 2016, the petition is
facially untimely. See 42 Pa.C.S.A. § 9545(b)(1). Thus, he must plead and
prove that he falls under one of the exceptions at Section 9545(b) of the
PCRA. See id.
Section 9545 provides that the court can still consider an untimely
petition where the petitioner successfully proves that:
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(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.
Id. at § 9545(b)(1)(i)-(iii). Further, a petitioner who wishes to invoke any
of the above exceptions must file the petition “within [sixty] days of the date
the claim could have been presented.” Id. at § 9545(b)(2). The
Pennsylvania Supreme Court has repeatedly stated that it is an appellant’s
burden to plead and prove that one of the above-enumerated exceptions
applies. See, e.g., Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268
(Pa. 2008), cert. denied, 555 U.S. 916 (2008).
In the instant matter, Appellant appears to contend that his petition is
timely under Section 9545(b)(1)(iii), specifically that the United States
Supreme Court’s decisions in Miller, supra as made retroactive by
Montgomery, supra made his sentence “unconstitutional because of his
youth at the time of the offense rendered him categorically less culpable
under Miller[.]” (Appellant’s Brief, at 7). We disagree.
Appellant seeks relief pursuant to Miller, supra. In Miller, the United
States Supreme Court held that it was unconstitutional to impose a
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mandatory term of life in prison without possibility of parole on juvenile
offenders. See Miller, supra at 2460. However, the record reflects that
Appellant’s date of birth is August 1, 1982. (See PCRA Court Opinion,
5/24/16, at 2). Thus, Appellant was over the age of eighteen when he
committed the murder in December 2000. (See id.). This Court has
specifically declined to extend the holding in Miller to non-juveniles. See
Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super. 2013), appeal
denied, 81 A.3d 75 (Pa. 2013). Therefore, we reject Appellant’s contention
that he is eligible for relief under Miller, and conclude that the PCRA court
properly denied his serial PCRA petition.2
Thus, Appellant’s PCRA petition is untimely with no statutory exception
to the PCRA time-bar applying. See Hutchins, supra at 53. Accordingly,
we affirm the order of the PCRA court.
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2
Moreover, we note that the fact that Appellant challenges the legality of his
sentence does not allow him to evade the PCRA’s timeliness requirements.
In Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999), the Pennsylvania
Supreme Court rejected this contention. The Fahy Court stated, “[a]lthough
legality of sentence is always subject to review within the PCRA, claims must
still first satisfy the PCRA’s time limits or one of the exceptions thereto.”
Fahy, supra at 223 (citation omitted). Thus, Appellant cannot elude the
PCRA’s timeliness requirements based on a claim of an illegal sentence. See
id.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/6/2017
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