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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 ALLEN BITTINGER
Appellant No. 1630 MDA 2016
Appeal from the PCRA Order September 6, 2016
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-MD-0000520-1985
BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED SEPTEMBER 26, 2017
Robert Allen Bittinger appeals, pro se, from the September 6, 2016
order entered in the Dauphin County Court of Common Pleas dismissing as
untimely his second petition filed under the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-46. We affirm.
On March 13, 1985, Bittinger pled guilty to first-degree murder and
criminal conspiracy1 in connection with the contract killing of his co-worker’s
wife. By the terms of the plea agreement, the trial court sentenced Bittinger
to mandatory life imprisonment for murder and a consecutive 10 to 20
years’ incarceration for criminal conspiracy. In 1986, this Court affirmed the
judgment of sentence as to first-degree murder but vacated and remanded
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1
18 Pa.C.S. §§ 2502(a) and 903, respectively.
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for resentencing on the conspiracy sentence. On May 14, 1986, the trial
court resentenced Bittinger to 5 to 10 years’ incarceration on the criminal
conspiracy charge, to run consecutive to the first-degree murder term.
Bittinger appealed and, on October 31, 1986, we affirmed his judgment of
sentence.
On November 20, 1987, Bittinger filed a pro se petition under the Post
Conviction Hearing Act (“PCHA”), now known as PCRA. The trial court
appointed counsel, who filed an amended PCHA petition. On June 14, 1988,
the trial court held a hearing on Bittinger’s PCHA petition. The PCHA court
dismissed the petition on August 1, 1988, and on March 9, 1989, this Court
affirmed.
On March 28, 2016, Bittinger filed his second PCRA petition, which he
later amended. On July 6, 2016, the PCRA court notified Bittinger of its
intention to dismiss the petition pursuant to Pennsylvania Rule of Criminal
Procedure 907. On September 6, 2016, the PCRA court dismissed Bittinger’s
petition without a hearing. Bittinger timely appealed.
Bittinger raises the following issue on appeal:
Whether a legal minor in Pennsylvania pursuant to
Pa.C.S. Title 1 § 1991 may utilize 42 Pa.C.S. §
9545(b)(iii)’s new retroactive Constitutional ruling
exception when he received a mandatory life without the
possibility for parole sentence for a crime committed when
he was 19 years of age under the rule announced in
Montgomery [v.] Louisiana, 136 S.Ct. 718 (2016)[.]
Bittinger’s Br. at 4.
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Our standard of review from the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).
It is well settled that “the timeliness of a PCRA petition is a
jurisdictional requisite.” Commonwealth v. Brown, 111 A.3d 171, 175
(Pa.Super. 2015), app. denied, 125 A.3d 1197 (Pa. 2015). A PCRA petition
“including a second or subsequent petition, shall be filed within one year of
the date the judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A
judgment is 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. § 9545(b)(3).
This Court affirmed Bittinger’s judgment of sentence on October 31,
1986. He did not file a petition for allowance of appeal with the
Pennsylvania Supreme Court. Bittinger’s current petition, filed on March 28,
2016, is therefore facially untimely.
To overcome the time bar, Bittinger was required to plead and prove
one of the following exceptions: (i) unconstitutional interference by
government officials; (ii) newly discovered facts that could not have been
previously ascertained with due diligence; or (iii) a newly recognized
constitutional right that has been held to apply retroactively. See 42
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Pa.C.S. § 9545(b)(1)(i)-(iii). To invoke one of these exceptions, Bittinger
must have filed his petition within 60 days of the date the claim could have
been presented. See 42 Pa.C.S. § 9545(b)(2).
In his PCRA petition, Bittinger argued his petition was timely because
he asserted a constitutional right that was held to apply retroactively.
Bittinger relied on the United States Supreme Court’s decisions in Miller v.
Alabama, 132 S.Ct. 2455 (2012), and Montgomery v. Louisiana, 136
S.Ct. 718 (2016). In Miller, the Supreme Court held that a sentence of life
imprisonment without the possibility of parole was unconstitutional when
imposed upon defendants who were “under the age of 18 at the time of their
crimes.” 132 S.Ct. at 2460. In Montgomery, the Supreme Court held that
the Miller decision applied retroactively to cases on state collateral review.
Montgomery, 136 S.Ct. at 736.
Here, Bittinger was 19 years old at the time he committed the murder
for which he was convicted.2 We have held that Miller’s prohibition of life-
without-parole sentences does not apply to those who were not juveniles at
the time of the offense. See Commonwealth v. Cintora, 69 A.3d 759, 764
(Pa.Super. 2013) (concluding that, for appellants, who were 19 and 21 at
time of offense, “the holding in Miller does not create a newly-recognized
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2
Bittinger was born on April 21, 1964, and committed the offenses at
issue on April 19, 1984.
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constitutional right that can serve as the basis for relief”); 3 see also
Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.Super. 2016)
(reaffirming Cintora’s holding that petitioners who were 18 or older “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”).
Because Bittinger was 19 years old at the time of the offenses, Miller
does not apply, and Bittinger has failed to satisfy the new constitutional right
exception to the PCRA time bar. Therefore, the PCRA court did not err in
dismissing the petition.
Order affirmed.
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3
In Cintora, this Court rejected the appellants’ argument that it
would violate the equal protection clause to not grant relief pursuant to
Miller. The appellants argued that Miller should apply to those under the
age of 25 “because Miller created a new Eighth Amendment right, that
those whose brains were not fully developed at the time of their crimes are
free from mandatory life without parole sentences, and because research
indicates that the human mind does not fully develop or mature until the age
of 25.” 69 A.3d at 764. We noted that the appellants’ “contention that a
newly-recognized constitutional right should be extended to others does not
render their petition timely pursuant to section 9545(b)(1)(iii).” Id.
(emphasis in original).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2017
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