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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
NYAKO ODELL PIPPEN, :
:
Appellant : No. 2013 EDA 2016
Appeal from the PCRA Order May 23, 2016,
in the Court of Common Pleas of Montgomery County,
Criminal Division at No: CP-46-CR-0003182-2007
BEFORE: OLSON, RANSOM, and STRASSBURGER*, JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 28, 2017
Nyako Odell Pippen (Appellant), appeals from the May 23, 2016 order
dismissing his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On January 8, 2008, following a jury trial, Appellant was convicted of
second-degree murder, criminal conspiracy, and three counts of robbery. On
March 19, 2008, Appellant received a mandatory life sentence as well as an
aggregate consecutive sentence of ten to twenty years of incarceration.
Appellant failed to file timely a direct appeal, but his appellate rights
were reinstated nunc pro tunc. On June 18, 2009, this Court affirmed
Appellant’s judgment of sentence, and our Supreme Court denied Appellant’s
petition for allowance of appeal on December 2, 2009. See
Commonwealth v. Pippen, 981 A.2d 319 (Pa. Super. 2009) (unpublished
*Retired Senior Judge assigned to the Superior Court.
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memorandum), appeal denied, 985 A.2d 219 (Pa. 2009). Appellant timely
filed a PCRA petition, which the PCRA court dismissed in March 2012. A
panel of this Court affirmed the dismissal of Appellant’s first PCRA petition.
See Commonwealth v. Pippen, 64 A.3d 281 (Pa. Super. 2013)
(unpublished memorandum).
On March 30, 2016, Appellant pro se filed a second PCRA petition
alleging he was entitled to relief under the United States Supreme Court’s
decision in Miller v. Alabama, 132 S.Ct. 2455 (2012) (holding
unconstitutional mandatory sentences of life imprisonment without
possibility of parole imposed upon individuals who were juveniles at the time
they committed homicides). PCRA Petition, 3/3/2016, at 1-8. On April 7,
2016, the PCRA court filed a notice of intent to dismiss the petition without a
hearing pursuant to Pa.R.Crim.P. 907. Appellant filed no response, and on
May 23, 2016, the PCRA court dismissed his petition. This timely-filed
appeal followed.1
We now consider whether the PCRA court erred in dismissing
Appellant’s petition as untimely filed. The timeliness of a post-conviction
petition is jurisdictional. Commonwealth v. Robinson, 12 A.3d 477, 479
1
While Appellant’s notice of appeal was not docketed until June 28, 2016,
more than thirty days after the PCRA court dismissed Appellant’s petition,
the court found the appeal was timely filed under the prisoner mailbox rule.
See PCRA Court Opinion, 8/8/2016, at n 1. See also Smith v.
Pennsylvania Bd. of Prob. & Parole, 683 A.2d 278, 280 (Pa. 1996) (“[A]n
appeal by a pro se prisoner [is deemed] to be filed when it was given to
prison authorities for mailing[.]”). We see no reason to disturb the PCRA
court’s finding.
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(Pa. Super. 2011). Generally, a petition for relief under the PCRA, including
a second or subsequent petition, must be filed within one year of the date
the judgment of sentence is final unless the petition alleges, and the
petitioner proves, that an exception to the time for filing the petition is met.
42 Pa.C.S. § 9545.
Here, Appellant’s judgment of sentence became final in March of 2010,
and thus, his petition filed on March 30, 2016 is facially untimely. Therefore,
the PCRA court had no jurisdiction to entertain Appellant’s petition unless he
pled and offered to prove one or more of the three statutory exceptions to
the time bar. See 42 Pa.C.S. § 9545(b)(1). In his petition, Appellant
contends the PCRA court had jurisdiction because the Miller decision
satisfies the following exception: “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)(iii). PCRA Petition, 3/30/2016, at 7.
Appellant’s attempt to invoke Miller is without merit. The Supreme
Court in Miller held that “mandatory life without parole for those under the
age of eighteen at the time of their crimes violates the Eighth Amendment's
prohibition on ‘cruel and unusual punishments.’” Miller, 132 S.Ct. at 2460.
Appellant was nineteen at the time of the offense. The Miller decision
obviously does not support Appellant’s alleged timeliness exception.
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Likewise, we find Appellant’s attempt to advocate that the holding in Miller
should be expanded to include himself unavailing. See Commonwealth v.
Cintora 69 A.3d 759, 764 (Pa. Super. 2013) (“[Petitioners] conclude that
the holding in Miller should be extended to them as they were under the
age of 25 at the time of the murder and, as such, had immature brains.
However, we need not reach the merits of [petitioners’] argument, as their
contention that a newly-recognized constitutional right should be extended
to others does not render their petition timely pursuant to section
9545(b)(1)(iii).”) (citation omitted; emphasis in original).
Because Appellant did not plead facts that would establish an
exception to the PCRA’s timeliness requirements, the PCRA court properly
dismissed Appellant’s petition without holding a hearing. See
Commonwealth v. Albrecht, 994 A.2d 1091, 1095 (Pa. 2010) (affirming
dismissal of PCRA petition without a hearing because the appellant failed to
meet burden of establishing timeliness exception).
Order affirmed.
Judge Olson joins.
Judge Ransom concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2017
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