J-S38003-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DAMEON ELLIS :
:
Appellant : No. 2025 EDA 2016
Appeal from the PCRA Order June 1, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0503111-1999
BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*
JUDGMENT ORDER BY GANTMAN, P.J.: FILED JUNE 14, 2017
Appellant, Dameon Ellis, appeals pro se from the order entered in the
Philadelphia County Court of Common Pleas, which dismissed as untimely his
third petition filed under the Post Conviction Relief Act (“PCRA”), at 42
Pa.C.S.A. §§ 9541-9546. A jury convicted Appellant on November 13, 2000,
of one count of first-degree murder, two counts of attempted murder, and
related offenses, in connection with the December 2, 1998 killing of one man
and serious wounding of two others. On November 14, 2000, a “death
qualified” jury sentenced Appellant to life imprisonment for the murder
conviction. The court sentenced Appellant on January 23, 2001, to
additional terms of imprisonment for the remaining offenses. This Court
affirmed the judgment of sentence on February 4, 2002, and the Supreme
Court denied allowance of appeal on July 16, 2002. See Commonwealth
___________________________
*Former Justice specially assigned to the Superior Court.
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v. Ellis, 797 A.2d 1022 (Pa.Super. 2002), appeal denied, 569 Pa. 700, 805
A.2d 520 (2002). Since then, Appellant litigated two prior PCRA petitions,
both of which were ultimately unsuccessful.
On August 20, 2015, Appellant filed the current, serial pro se PCRA
petition. The court issued Rule 907 notice on March 30, 2016. On June 1,
2016, the court dismissed Appellant’s PCRA petition as untimely. Appellant
timely filed a pro se notice of appeal on June 20, 2016. The court did not
order, and Appellant did not file, a concise statement per Pa.R.A.P. 1925(b).
Preliminarily, the timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A
PCRA petition, including a second or subsequent petition, shall be filed within
one year of the date the underlying judgment of sentence becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment of sentence is deemed final “at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). The
statutory exceptions to the PCRA time-bar allow for very limited
circumstances under which the late filing of a petition will be excused; a
petitioner asserting a timeliness exception must file a petition within 60 days
of when the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(1-2).
Instantly, Appellant’s judgment of sentence became final on October
14, 2002, upon expiration of the time for filing a petition for writ of certiorari
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with the U.S. Supreme Court. See U.S.Sup.Ct.R. 13. Appellant filed the
current PCRA petition on August 20, 2015, which is patently untimely. See
42 Pa.C.S.A. § 9545(b)(1). On appeal, Appellant attempts to invoke the
“new constitutional right” exception to the statutory time-bar per Section
9545(b)(1)(iii), claiming he is entitled to relief under Miller v. Alabama,
567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (holding sentence of
mandatory life imprisonment without possibility of parole for those under
age of 18 at time of their crimes violates Eighth Amendment’s prohibition on
cruel and unusual punishments) and Montgomery v. Louisiana, ___ U.S.
___, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) (holding Miller applies
retroactively to cases on state collateral review). Nevertheless, Appellant
advanced different arguments in his PCRA petition and did not raise or rely
on Miller or Montgomery. Consequently, Appellant’s claims are waived.
See Commonwealth v. Furgess, 149 A.3d 90 (Pa.Super. 2016)
(explaining asserted exceptions to PCRA time-bar must be raised in PCRA
petition and cannot be raised for first time on appeal).
Moreover, Appellant admits he was 19 years old at the time of the
offenses at issue. Thus, Miller and Montgomery do not apply. This Court
has previously rejected Appellant’s argument that relief under Miller and
Montgomery should be extended to individuals under 25 years old because
the brain is not developed fully until that age. See Furgess, supra (holding
appellant who was 19 years old at time of offenses was not entitled to relief
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under Miller and Montgomery on collateral review; rejecting appellant’s
argument that he should be considered “technical juvenile”). Therefore, we
affirm the denial of PCRA relief.1
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/14/2017
____________________________________________
1
To the extent Appellant relies on Alleyne v. United States, ___ U.S. ___,
133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), that decision affords him no relief.
See Commonwealth v. Washington, ___ Pa. ___, 142 A.3d 810 (2016)
(holding new constitutional rule announced in Alleyne is not substantive or
watershed procedural rule that warrants retroactive application to collateral
attacks on mandatory minimum sentences where judgment of sentence
became final before Alleyne was decided). Alleyne affords Appellant no
relief in any event, as Alleyne does not apply to the mandatory life
imprisonment sentence for first-degree murder. Appellant’s other challenges
to the legality of his sentence are unreviewable due to the untimeliness of
his petition. See Commonwealth v. Infante, 63 A.3d 358 (Pa.Super.
2013) (stating legality of sentence challenges brought under PCRA must first
satisfy PCRA’s time limits or exception to time-bar).
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