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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
ROBERT MICKENS, :
:
Appellant : No. 1662 WDA 2016
Appeal from the PCRA Order September 22, 2016,
in the Court of Common Pleas of Allegheny County,
Criminal Division, at No(s): CP-02-CR-0002554-1995
CP-02-CR-0015959-1994
BEFORE: OLSON, MOULTON, and STRASSBURGER, JJ.*
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 23, 2017
Robert Mickens (Appellant) appeals from the September 22, 2016
order which denied his petition for relief filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
In May 1995, Appellant was found guilty of, inter alia, first-degree
murder in connection with the shooting death of John Williams. Appellant
was 24 years old at the time of the shooting. On May 15, 1995, Appellant
was sentenced to life imprisonment. On direct appeal, this Court affirmed
Appellant’s judgment of sentence on July 22, 1998. Commonwealth v.
Mickens, 724 A.2d 958 (Pa. Super. 1998) (unpublished memorandum).
Appellant’s first PCRA petition was dismissed in 2000, and Appellant’s appeal
resulted in no relief. Commonwealth v. Mickens, 792 A.2d 616 (Pa.
Super. 2001) (unpublished memorandum), appeal denied, 796 A.2d 980
*Retired Senior Judge assigned to the Superior Court.
J-S28038-17
(Pa. 2002). Appellant filed his second PCRA petition in 2006, the PCRA court
dismissed it without a hearing, and the subsequent appeal was unsuccessful.
Commonwealth v. Mickens, 945 A.2d 765 (Pa. Super. 2007) (unpublished
memorandum), appeal denied, 952 A.2d 676 (Pa. 2008).
On March 29, 2016, Appellant filed his third PCRA petition, which is the
subject of this appeal. The PCRA court appointed counsel, who subsequently
was permitted to withdraw under Commonwealth v. Turner, 544 A.2d 927
(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc). After giving notice of its intent to dismiss the petition
without a hearing pursuant to Pa.R.Crim.P. 907, the PCRA court dismissed
the petition by order of September 22, 2016.
Appellant timely filed a notice of appeal, and both Appellant and the
PCRA court complied with Pa.R.A.P. 1925. On appeal, Appellant raises two
substantive claims for relief. Appellant’s Brief at i.
Before we may consider the merits of Appellant’s claims, we must
determine whether his PCRA petition was timely filed, as the timeliness of a
post-conviction petition is jurisdictional. Commonwealth v. Robinson, 12
A.3d 477, 479 (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.
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It is clear that Appellant’s petition is facially untimely: his judgment of
sentence became final in 1998. However, Appellant alleges that his petition
is based upon a change in the law, referencing Miller v. Alabama, 567 U.S.
460, 132 S. Ct. 2455 (2012); Montgomery v. Louisiana, 136 S.Ct. 718
(2016); and People v. House, 72 N.E.3d 357 (Ill. App. 2015). Appellant’s
Brief at 6. Thus, it appears that Appellant is alleging that the following
timeliness exception applies: “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)(1)(iii).
In Miller, the Court held that the application of mandatory sentences
of life imprisonment without possibility of parole to individuals who were
juveniles at the time they committed homicides was unconstitutional.
Miller, 567 U.S. at __, 132 S. Ct. at 2464. In Montgomery, the Court
determined that Miller announced a new substantive rule of law that applies
retroactively. Montgomery, 136 S. Ct. at 736.
Appellant was not a juvenile at the time of Williams’s murder; rather,
he was 24 years old. Accordingly, Miller and Montgomery are not
applicable to Appellant’s petition. See Commonwealth v. Furgess, 149
A.3d 90, 94 (Pa. Super. 2016) (“[P]etitioners who were older than 18 at the
time they committed murder are not within the ambit of the Miller decision
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and therefore may not rely on that decision to bring themselves within the
time-bar exception in Section 9545(b)(1)(iii).”).
In House, the Illinois appellate court held that application of a
sentence of life without parole imposed upon House, who was 19 years old
and only served as a lookout for the perpetrators of the murders, constituted
a violation of the proportionate penalties clause of the Illinois constitution.
House, 72 N.E.3d at 389.
As stated above, the timeliness exception codified in subsection
9545(b)(1)(iii) applies to new rights recognized by either the United States
Supreme Court or the Pennsylvania Supreme Court. It does not apply to the
grant of an Illinois-state-constitution-based challenge by the Illinois
intermediate appellate court. Hence, Appellant cannot utilize the House
decision to meet a timeliness exception.
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.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2017
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