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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DARON ALBERT COX :
:
Appellant No. 964 WDA 2016
Appeal from the PCRA Order June 1, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001126-1997,
CP-02-CR-0002029-1997
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED JANUARY 30, 2017
Appellant, Daron Albert Cox, appeals pro se from the order entered in
the Allegheny County Court of Common Pleas, which denied his third petition
filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-
9546. On July 24, 1997, a jury convicted Appellant of first-degree murder
and related offenses arising from his involvement in a shooting death on
December 7, 1996. Appellant was 18 years old at the time of the incident.
The court sentenced Appellant on September 23, 1997, to mandatory life
imprisonment, and a concurrent term of 3½ to 7 years’ imprisonment. This
Court affirmed the judgment of sentence on January 13, 1999, and our
Supreme Court denied allowance of appeal on June 22, 1999. See
Commonwealth v. Cox, 736 A.2d 680 (Pa.Super. 1999) (unpublished
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memorandum), appeal denied, 559 Pa. 688, 739 A.2d 1055 (1999).
Appellant filed his first PCRA petition on June 13, 2000, which the PCRA
court denied on June 9, 2004. This Court affirmed on September 14, 2005.
See Commonwealth v. Cox, 888 A.2d 3 (Pa.Super. 2005) (unpublished
memorandum). Appellant unsuccessfully filed a second PCRA petition in
2006. On February 16, 2016, Appellant filed the current pro se PCRA
petition. The PCRA court issued Rule 907 notice on April 20, 2016, and
denied Appellant’s petition on June 1, 2016. Appellant timely filed a pro se
notice of appeal. The PCRA court did not order and Appellant did not file a
Rule 1925(b) statement.
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
newly created constitutional right exception under Section 9545(b)(1)(iii), “a
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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) (internal quotations omitted).
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
life without possibility of parole (“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 16, 2016, within sixty days of the
Montgomery decision. See Commonwealth v. Secreti, 134 A.3d 77
(Pa.Super. 2016) (holding date of Montgomery decision controls for
juveniles, who received LWOP sentences, for purposes of 60-day rule in 42
Pa.C.S.A. § 9545(b)(2)). Appellant also 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
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Commonwealth v. Batts, 620 Pa. 115, 131-32, 66 A.3d 286, 296 (2013)).
At the time of the offense, however, Appellant was not a juvenile; he 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: 1/30/2017
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