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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHNELL HAINES :
:
Appellant : No. 3495 EDA 2016
Appeal from the PCRA Order October 11, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0108841-1997
BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.
MEMORANDUM BY OLSON, J.: FILED MARCH 05, 2018
Appellant, Johnell Haines, appeals pro se from an order entered on
October 11, 2016 that dismissed his petition under the Post-Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.
On October 4, 1995, Appellant, along with another individual, robbed
and fatally shot Benjamin Milla during a home invasion. Appellant was 18
years old at the time of the offense. After a jury found him guilty, the trial
court, on November 25, 1997, sentenced him to mandatory life
imprisonment for first-degree murder, together with consecutive terms of
incarceration for the related burglary and criminal conspiracy charges. This
Court affirmed Appellant’s judgment of sentence on February 27, 2001 and
our Supreme Court denied allocator on August 30, 2001. Commonwealth
v. Haines, 776 A.2d 1006 (Pa. Super. 2001), allocator denied, 784 A.2d 115
(Pa. 2001).
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Appellant filed a timely pro se PCRA petition on June 19, 2002. The
court appointed counsel, who subsequently filed a no-merit letter and
request to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927
(Pa. 1988) and Commonwealth v. Finley, 50 A.2d 213 (Pa. Super. 1988)
(en banc). On April 29, 2003, the PCRA court issued an order that dismissed
the petition and permitted counsel to withdraw. This Court affirmed the
order dismissing Appellant’s first PCRA petition on April 15, 2004.
Commonwealth v. Haines, 852 A.2d 1247 (Pa. Super. 2004) (unpublished
memorandum). In June 2004, Appellant initiated a federal habeas corpus
petition, which was ultimately dismissed without a hearing. Thereafter, the
PCRA court dismissed Appellant’s second petition as untimely on July 16,
2008. This Court affirmed that dismissal order on February 22, 2010.
Commonwealth v. Haines, 996 A.2d 7 (Pa. Super. 2010) (unpublished
memorandum).
Appellant filed the instant pro se petition, his third, on August 8, 2012.
An amended petition was filed on March 10, 2016. On May 18, 2016, the
PCRA court issued notice of its intent to dismiss the petition pursuant to
Pa.R.Crim.P. 907. Appellant responded to the Rule 907 notice on June 7,
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2016. The PCRA court dismissed the petition as untimely on October 11,
2016. Appellant filed a timely notice of appeal on November 3, 2016.1
Appellant raises the following claims in his brief:
Whether the PCRA [c]ourt erred by determining that the
imposition of an illegal mandatory life-without-parole sentence –
for a homicide offense committed by Appellant, who has been
identified by [the United States Supreme Court in Miller v.
Alabama, 132 S.Ct. 2455 (2012)] as a defined class of
developing adolescen[ts], did not violate the Eighth
Amendment’s [p]rohibition [against] cruel and unusual
punishment[?]
Whether [Miller’s] constitutional requirement to consider
age-related factors prior to imposing life-without-parole sentence
applies to Appellant[?]
Appellant’s Brief at 3.
We initially address Appellant’s second issue since that question
relates directly to whether the PCRA court possessed jurisdiction to entertain
the instant petition.
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.
2013). 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 is final unless the petition alleges and the
petitioner proves one of the three exceptions to the time
limitations for filing the petition set forth in Section 9545(b)(1)
of the statute. See 42 Pa.C.S.[A.] § 9545(b). A PCRA petition
invoking one of these statutory exceptions must “be filed within
60 days of the date the claims could have been presented.” See
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1 It does not appear that the PCRA court ordered Appellant to file a concise
statement of matters complained of on appeal under Pa.R.A.P. 1925(b).
Nonetheless, the court issued an opinion on January 26, 2017.
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Hernandez, 79 A.3d at 651–52; see also 42 Pa.C.S.[A.]
§ 9545(b)(2). Asserted exceptions to the time restrictions for
the PCRA must be included in the petition, and may not be
raised for the first time on appeal. Commonwealth v. Burton,
936 A.2d 521, 525 (Pa. Super. 2007). This Court's standard of
review regarding an order dismissing a petition under the PCRA
is “to determine whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.”
Commonwealth v. Barndt, 74 A.3d 185, 191–92 (Pa. Super.
2013) (citations omitted).
Commonwealth v. Furgess, 149 A.3d 90, 92-93 (Pa. Super. 2016)
(footnotes omitted).
Appellant does not contest the PCRA court’s conclusion that his third
petition was patently untimely. Here, the court determined that Appellant’s
judgment of sentence became final in late 2001, 90 days after the
Pennsylvania Supreme Court denied allocator and the time for filing a
petition for a writ of certiorari in the United States Supreme Court expired.
See 42 Pa.C.S.A. § 9545(b)(3). Accordingly, Appellant filed his present
petition approximately ten years outside the statutory time limit.
Appellant, however, asserts an exception to the time bar under 42
Pa.C.S.A § 9545(b)(1)(iii), which provides that a petitioner may seek relief
when there is “a constitutional right that was recognized by the U.S.
Supreme Court or the Supreme Court of Pennsylvania after the time period
provided in this section and has been held by that court to apply
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retroactively.” Id. Citing Miller2 and Montgomery v. Louisiana, 136
S.Ct. 718 (2016), which held that Miller applies retroactively to cases on
state collateral review, Appellant argues that he is entitled to relief because,
based upon neurologic studies regarding brain development and his own
mental infirmities, he is in the same position as a juvenile homicide
defendant. See Appellant’s Brief at 12-18. Appellant also argues that the
Equal Protection clause of the Fourteenth Amendment compels application of
Miller since individuals who commit a killing between 18 and 25 years of
age are entitled to the same treatment under the law as juveniles. See
Appellant’s Brief at 18-22.
This Court has twice rejected nearly identical arguments for purposes
of invoking the timeliness exception at § 9545(b)(1)(iii). See
Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013), appeal denied,
81 A.3d 75 (Pa. 2013) (“petitioners who were older than 18 at the time they
committed murder are not within the ambit of the Miller decision and
therefore may not rely on that decision to bring themselves within the
time-bar exception in Section 9545(b)(1)(iii)”; “contention that a
newly-recognized constitutional right should be extended to others does not
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2Miller held that a sentence of life imprisonment without the possibility of
parole constitutes cruel and unusual punishment under the Eighth
Amendment when imposed upon defendants convicted of murder who were
under the age of 18 at the time of their crimes. Miller, 132 S.Ct. at 2460.
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render [a] petition [seeking such an expansion of the right] timely pursuant
to section 9545(b)(1)(iii)[]”) (emphasis in original); Furgess, 149 A.3d at
94 (same).3
Because Appellant was not a juvenile at the time he committed the
underlying offenses, he cannot invoke Miller and Montgomery and avail
himself of the timeliness exception set forth at § 9545(b)(1)(iii).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/5/18
____________________________________________
3 In Furgess, this Court acknowledged that Cintora's additional holding,
that Miller had not been applied retroactively, was “no longer good law”
after Montgomery. Furgess, 149 A.3d at 94.
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