J-A03013-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
BERNARD BENNETT :
:
Appellant : No. 2266 EDA 2016
Appeal from the PCRA Order June 28, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0307361-1996
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED JANUARY 30, 2018
Appellant, Bernard Bennett, appeals pro se from the order entered in
the Philadelphia County Court of Common Pleas, which dismissed as
untimely his serial petition filed under the Post Conviction Relief Act
(“PCRA”), at 42 Pa.C.S.A. §§ 9541-9546. On September 24, 1997, a jury
convicted Appellant of first-degree murder and other offenses in connection
with Appellant’s murder of a police officer. The court sentenced Appellant on
November 10, 1997, to life imprisonment for the murder conviction and
imposed lesser terms of imprisonment for the remaining crimes. This Court
affirmed the judgment of sentence on April 7, 1999, and our Supreme Court
denied allowance of appeal on September 30, 1999. See Commonwealth
v. Bennett, 738 A.2d 1047 (Pa.Super. 1999), appeal denied, 560 Pa. 695,
743 A.2d 913 (1999).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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From 2000 to 2011, Appellant unsuccessfully litigated four PCRA
petitions. On December 14, 2015, Appellant filed pro se the current, fifth
PCRA petition. The court issued Pa.R.Crim.P. 907 notice on April 19, 2016.
On May 10, 2016, Appellant filed a motion to amend his PCRA petition; and
on May 17, 2016, Appellant responded to the court’s Rule 907 notice. The
court dismissed Appellant’s petition as untimely on June 28, 2016. On July
12, 2016, Appellant timely filed a notice of appeal. No Pa.R.A.P. 1925(b)
concise statement was ordered or filed.
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 December
29, 1999, 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 December 14, 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
concedes he was 22 years old at the time of the offenses at issue. Thus,
Miller and Montgomery do not apply. Furthermore, this Court has
previously rejected the 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 Commonwealth v. Furgess, 149
A.3d 90 (Pa.Super. 2016) (holding appellant who was 19 years old at time of
offenses was not entitled to relief under Miller and Montgomery on
collateral review; rejecting “technical juvenile” argument). Therefore, the
court properly dismissed Appellant’s petition as untimely.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/31/2018
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