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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALEXIS MALDONADO :
:
Appellant : No. 1756 EDA 2016
Appeal from the PCRA Order May 2, 2016
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0001757-2003,
CP-09-CR-0001758-2003, CP-09-CR-0001759-2003
BEFORE: OTT, SOLANO, and JENKINS, JJ.
MEMORANDUM BY OTT, J.: FILED January 13, 2017
Alexis Maldonado appeals, pro se, from the order entered May 2,
2016, in the Bucks County Court of Common Pleas, dismissing, as untimely
filed, his third petition for collateral relief filed pursuant to the Post
Conviction Relief Act (“PCRA”).1 Maldonado seeks relief from the aggregate
term of life imprisonment imposed on September 20, 2004, following his
non-jury conviction of, inter alia, second-degree murder, robbery, and
conspiracy,2 for a December 2002, home invasion. On appeal, Maldonado
asserts the PCRA court erred in dismissing his petition as untimely filed
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1
42 Pa.C.S. §§ 9543-9546.
2
See 18 Pa.C.S. §§ 2502, 3702, and 903, respectively.
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because he was subject to an unconstitutional sentence of life imprisonment
without the possibility of parole. For the reasons below, we affirm.
The facts underlying Maldonado’s conviction are well known to the
parties, and were summarized by this Court in the memorandum decision
affirming Maldonado’s sentence on direct appeal.3 Therefore, we need not
reiterate them herein. In summary, Maldonado and a co-conspirator robbed
five men in their home at gunpoint, and during a struggle, one of the men
was shot and killed. Maldonado was later arrested and charged with
numerous offenses including second-degree murder, robbery and
conspiracy. Following a non-jury trial, both Maldonado and his co-
conspirator were convicted of all charges. On September 20, 2004, the trial
court sentenced Maldonado to a term of life imprisonment without parole for
the conviction of second-degree murder, and three consecutive terms of five
to ten years’ imprisonment for the robbery offenses. No further punishment
was imposed on the remaining counts.
Maldonado’s judgment of sentence was affirmed on direct appeal, and
the Pennsylvania Supreme Court denied his petition for review. See
Commonwealth v. Maldonado, 897 A.2d 519 (Pa. Super. 2006)
(unpublished memorandum), appeal denied, 902 A.2d 1240 (Pa. 2006). On
July 9, 2007, he filed a timely PCRA petition, which the court denied. A
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3
See Commonwealth v. Maldonado, 897 A.2d 519 [773 EDA 2005] (Pa.
Super. 2006) (unpublished memorandum at 1-7).
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panel of this Court affirmed the order on appeal. See Commonwealth v.
Maldonado, 965 A.2d 298 (Pa. Super. 2008).
Thereafter, on July 29, 2015, Maldonado filed a second PCRA petition,
which the court promptly denied as untimely filed. Undaunted, on March 28,
2016, Maldonado filed the present petition, his third, in which he argued his
sentence of life imprisonment without the possibility of parole was illegal
pursuant to the United States Supreme Court’s decision in Montgomery v.
Louisiana, 136 S.Ct. 718 (U.S. 2016). On April 11, 2016, the PCRA court
issued notice of its intent to dismiss the petition without conducting an
evidentiary hearing pursuant to Pa.R.Crim.P. 907. When Maldonado failed to
respond to the Rule 907 notice, the court entered an order dismissing the
petition on May 2, 2016. This timely appeal follows.4
When reviewing an order dismissing a PCRA petition, we must
determine whether the ruling of the PCRA court is supported by record
evidence and is free of legal error. Commonwealth v. Burkett, 5 A.3d
1260, 1267 (Pa. Super. 2010). “Great deference is granted to the findings
of the PCRA court, and these findings will not be disturbed unless they have
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4
On June 7, 2016, the PCRA court ordered Maldonado to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Maldonado complied with the court’s directive, and filed a concise statement
on June 27, 2016.
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no support in the certified record.” Commonwealth v. Carter, 21 A.3d
680, 682 (Pa. Super. 2011) (citation omitted).
Here, the PCRA court concluded Maldonado’s petition was untimely
filed. See PCRA Court Opinion, 7/22/2016, at 4-7.
The PCRA’s timeliness requirements are jurisdictional; therefore,
a court may not address the merits of the issues raised if the
petition was not timely filed. The timeliness requirements apply
to all PCRA petitions, regardless of the nature of the individual
claims raised therein.
Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012) (citations omitted).
A PCRA petition must be filed within one year of the date the judgment
of sentence becomes final. See 42 Pa.C.S. § 9545(b)(1). Maldonado’s
judgment of sentence was final on October 10, 2006, 90 days after the
Pennsylvania Supreme Court denied his petition for allowance of appeal from
his direct appeal,5 and he failed to petition for a writ of certiorari in the
United States Supreme Court. See id. at § 9545(b)(3); United States
Supreme Court Rule 13. Therefore, Maldonado had until October 10, 2007,
to file a timely petition, and the one before us, filed more than eight years
later, is patently untimely.
However, the PCRA provides that an otherwise untimely petition is not
time-barred if a petitioner pleads and proves the applicability of one of three
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5
The 90th day, Monday, October 9, 2006, was Columbus Day, a federal
holiday. Therefore, Maldonado had until Tuesday, October 10, 2006, to file
a petition for certiorari in the Supreme Court. See 1 Pa.C.S. § 1908.
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time-for-filing exceptions: (1) interference by government officials, (2)
newly discovered evidence, or (3) a newly-recognized constitutional right
which had been applied retroactively. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).
Any petition invoking one of these exceptions must be filed “within 60 days
of the date the claim could have been presented.” Id. at § 9545(b)(2).
Here, Maldonado claims that his petition meets the newly-recognized
constitutional right exception. Specifically, he contends his life sentence
without the possibility of parole is unconstitutional under Miller v.
Alabama, 132 S.Ct. 2455 (U.S. 2012), and Montgomery, supra.
In Miller, the United States Supreme Court held “mandatory life
without parole for those under the age of 18 at the time of their crimes
violates the Eighth Amendment’s prohibition on ‘cruel and unusual
punishments.’” Miller, 132 S.Ct. at 2460 (emphasis supplied). Although
the Court made clear that it was not foreclosing a trial court’s ability to
impose a life sentence upon a juvenile convicted of murder, it imposed a
requirement upon the trial court to “take into account how children are
different, and how those differences counsel against irrevocably sentencing
them to a lifetime in prison.” Id. at 2469. Therefore, it was the mandatory
sentencing scheme that the Supreme Court deemed unconstitutional when
applied to juveniles, holding that “a judge or jury must have the opportunity
to consider mitigating circumstances before imposing the harshest possible
penalty for juveniles.” Id. at 2475. Thereafter, in Montgomery, supra,
the Supreme Court held that its decision in Miller “announced a substantive
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rule of constitutional law” which should be given retroactive effect to cases
on state collateral review. Montgomery, supra, 136 S.Ct. at 736.
Maldonado maintains he filed his present petition within 60 days of the
Montgomery decision, and, consequently, his illegal sentence should be
vacated. See Maldonado’s Brief at 9.
Although we agree Maldonado filed his petition within 60 days of the
Montgomery decision,6 neither the holding of Montgomery nor Miller
provides him with relief because Maldonado was 19 years old on the date he
committed the crime. Our review of the record reveals Maldonado was born
on February 21, 1983; therefore, in December of 2002, at the time he
committed the offenses at issue, he was 19 years and 10 months old. The
Miller Court specifically limited its holding to defendants who were “under
the age of 18 at the time of their crimes.” Miller, supra, 132 S.Ct. at 2460.
Maldonado contends, however, this Court should extend the holding of
Miller to those who are under 20 years old at the time they commit the
offenses in question. See Maldonado’s Brief at 7-9. He claims the United
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6
The Montgomery decision was filed on January 27, 2016. Therefore,
Maldonado had to file his petition by March 23, 2016, in order to meet the
60-day requirement of Section 9545(b)(2). Although the PCRA petition
herein is time-stamped March 28, 2016, we note that attached to the
petition is the mailing envelope which bears a date stamp of March 21,
2016. Accordingly, because the record demonstrates Maldonado placed the
petition in the prison mail within the requisite 60-day period, pursuant to the
prisoner mailbox rule, we conclude the petition was timely filed. See
Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997).
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States Supreme Court in Miller and Montgomery, “made it clear that a
person’s brain does not finish developing until a person is in their mid-20’s.”
Id. at 7.
This argument was recently considered and rejected by a panel of this
Court in Commonwealth v. Furgess, 149 A.3d 90, ___, 2016 PA Super
219, *2 (Pa. Super. September 28, 2016). The Furgess panel, relying on
this Court’s prior holding in Commonwealth v. Cintora, 69 A.3d 759 (Pa.
Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013), explicitly held “that
petitioners who were older than 18 at the time they committed murder are
not within the ambit of the Miller decision and therefore may not rely on
that decision to bring themselves within the time-bar exception in Section
9545(b)(1)(iii).” Furgess, supra, 149 A.3d at ___, 2016 PA Super 219, at
*3. Moreover, the Furgess Court found “nothing in Montgomery
undermines” this holding in Cintora.7 Id. Accordingly, Maldonado, who
was 19 years old at the time he committed second-degree murder, is
entitled to no relief.
Because we agree with the determination of the PCRA court that
Maldonado’s petition was untimely filed, and Maldonado failed to establish
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7
The Furgess Court acknowledged, however, that Cintora’s additional
holding, that Miller had not been applied retroactively, was “no longer good
law” after Montgomery. Furgess, supra,149 A.3d at ___, 2016 PA Super
219, at *3.
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the applicability of one of the time for filing exceptions to the PCRA, we
affirm the order dismissing his third PCRA petition.
Order affirmed.
Judge Jenkins did not participate in the consideration or decision of
this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2017
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