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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JAMOD ROHN
Appellant No. 444 EDA 2016
Appeal from the PCRA Order January 15, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1004381-1996
BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*
MEMORANDUM BY SOLANO, J.: FILED OCTOBER 21, 2016
Appellant, Jamod Rohn, appeals pro se from the order dismissing his
fifth petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546. We affirm.
Appellant pled guilty to two counts of third-degree murder, one count
of rape, and one count of criminal conspiracy. On September 7, 1999, the
trial court sentenced Appellant to consecutive terms of 60 to 240 months’
imprisonment on each of the third-degree murder charges, and 120 to 240
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*
Former Justice specially assigned to the Superior Court.
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months’ imprisonment on the rape charge, with no further penalty imposed
for the criminal conspiracy charge.1 Appellant did not file a direct appeal.
Appellant unsuccessfully sought post-conviction relief in PCRA petitions
that he filed in 2004, 2008, 2010, and 2012. Appellant filed the PCRA
petition at issue in this appeal on December 3, 2015. On December 17,
2015, the PCRA court issued a Criminal Rule 907 notice of intent to dismiss
Appellant’s petition on the basis that it was untimely and that Appellant had
failed to plead an exception to the PCRA’s time bar. Appellant did not file a
response. By an order entered January 15, 2016, the PCRA court denied
Appellant’s petition. This appeal followed.
Within his appellate brief, Appellant has not presented a statement of
questions involved, in contravention of Pa.R.A.P. 2111 and 2116 (providing
that the brief of the appellant shall include a statement of questions
involved, which “must state concisely the issues to be resolved, expressed in
the terms and circumstances of the case . . .”). Nonetheless, we discern
from the argument section of Appellant’s brief that he seeks relief pursuant
to Miller v. Alabama, 132 S. Ct. 2455 (2012), which held that a sentence
of life imprisonment without the possibility of parole is unconstitutionally
cruel and unusual punishment when imposed upon juveniles convicted of
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1
Appellant’s aggregate sentence is 240 to 720 months (20 to 60 years) of
imprisonment.
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committing murder. The essence of Appellant’s claim is that although he
was 24 years old when he committed the aforementioned offenses, he
should be treated as a juvenile under Miller because he had a “juvenile
brain that d[id] not mature until age 25.” Appellant’s Brief at 7.
Before considering the merits of Appellant’s claim, we must first
determine whether the PCRA court correctly concluded that Appellant’s PCRA
petition was untimely filed, such that the PCRA court lacked jurisdiction to
consider it.
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
becomes 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.2 A PCRA petition invoking one of these
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2
The three exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference of government officials with the presentation of the
claim in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of the United States.
(ii) the facts upon which the claim is predicated were unknown
to the petitioner and could not have been ascertained by the
exercise of due diligence; or
(Footnote Continued Next Page)
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statutory exceptions must “be filed within 60 days of the date the claims
could have been presented.” Hernandez, 79 A.3d at 651-52; see also 42
Pa.C.S. § 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, 191-192 (Pa. Super. 2013). The
PCRA court’s findings will not be disturbed unless there is no support for the
findings in the certified record. Id.
Here, Appellant’s judgment of sentence became final on October 7,
1999, thirty days after the time period for filing a direct appeal with this
Court expired. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a). Appellant
filed this fifth PCRA petition on December 3, 2015, more than 15 years after
his judgment of sentence became final. Therefore, the petition is patently
_______________________
(Footnote Continued)
(iii) 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).
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untimely unless Appellant has satisfied his burden of pleading and proving
that one of the enumerated exceptions applies. Hernandez.
In his PCRA petition, Appellant acknowledges the time bar and
concedes that his petition is untimely if no exception applies. PCRA Petition,
12/3/15, at 2-3. However, Appellant asserts he is within an exception under
42 Pa.C.S. § 9545(b)(1)(iii), which provides that a petitioner may seek relief
when there 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.” Id. Appellant’s petition references the United States
Supreme Court’s decision in Miller, and his appellate brief does the same.
See Appellant’s Brief at 2-15.3
Appellant’s claim fails. The record reflects that Appellant was born on
September 5, 1967, and the offenses of which he was convicted occurred on
December 30, 1990, when Appellant was 22 years old. Criminal Docket at
3; N.T., 9/17/97, at 12. The decision in Miller applies only to defendants
convicted of murder who were “under the age of 18 at the time of their
crimes.” Miller, 132 S. Ct. at 2460. Accordingly, we agree with the PCRA
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3
In Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Supreme Court
held that the decision in Miller v. Alabama applies retroactively to cases on
state collateral review.
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court that Miller v. Alabama does not apply to Appellant because Appellant
was not a juvenile under Miller when he committed the underlying offenses.
Appellant seeks to avail himself of the holding of Miller by asserting
that he was a de facto juvenile when he committed the offenses because of
“the scientifically verified fact that the juvenile brain does not mature until
age 25 . . .” Appellant’s Brief at 7. But this is an argument for an
extension of the holding of Miller to persons convicted of murder who were
older at the time of their crimes than the class of defendants subject to the
Miller holding. “A contention that a newly-recognized constitutional right
should be extended to others does not render [a] petition [seeking such an
expansion of the right] timely pursuant to section 9545(b)(1)(iii).”
Commonwealth. v. Cintora, 69 A.3d 759, 764 (Pa. Super. 2013)
(emphasis in original); see Commonwealth v. Furgess, 2016 WL 5416640
(Pa. Super. Sept. 28, 2016).4
For these reasons, the PCRA court lacked jurisdiction to consider
Appellant’s untimely PCRA petition. We therefore affirm the PCRA court’s
order denying Appellant post-conviction relief.
Order affirmed.
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4
Because of our disposition of this case, we need not decide whether
Appellant’s claim also fails because it was not filed within the 60-day
deadline set forth in Section 9545(b)(2) of the PCRA.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2016
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