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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
NICOLE NEWELL,
Appellant No. 823 EDA 2017
Appeal from the PCRA Order Entered February 15, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1003692-1995
BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 09, 2018
Appellant, Nicole Newell, appeals pro se from the post-conviction
court’s February 15, 2017 order denying, as untimely, her petition filed
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We
affirm.
On June 18, 1997, Appellant was convicted, following a jury trial, of
first-degree murder and related offenses. On June 19, 1997, she was
sentenced to a mandatory term of life imprisonment, without the possibility
of parole. This Court affirmed Appellant’s judgment of sentence on direct
appeal, and our Supreme Court denied her subsequent petition for allowance
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* Former Justice specially assigned to the Superior Court.
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of appeal. Commonwealth v. Newell, 731 A.2d 196 (Pa. Super. 1998)
(unpublished memorandum), appeal denied, 740 A.2d 1145 (Pa. 1999).
On March 14, 2000, Appellant filed her first, pro se PCRA petition, and
counsel was appointed. On September 29, 2000, the PCRA court issued an
order denying her petition, and she did not file an appeal from that order.
On May 9, 2005, Appellant filed a second, pro se PCRA petition, which was
denied on November 21, 2005. Again, Appellant did not appeal.
On June 17, 2010, Appellant filed the pro se PCRA petition that
underlies the present appeal. In the years thereafter, she filed multiple
amendments to that petition. For some reason, it was not until August 3,
2016, that the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to
dismiss Appellant’s petition. Although Appellant filed a pro se response to
the court’s Rule 907 notice, the court issued an order, and accompanying
opinion, denying her petition on February 15, 2017, reasoning that it was
untimely filed.
Appellant filed a timely, pro se notice of appeal. It does not appear
that the PCRA court ordered her to file a Pa.R.A.P. 1925(b) statement.
Herein, Appellant raises three questions for our review:
A. Did Appellant timely file a PCRA and thus it should not have
been dismissed as [u]ntimely without an evidentiary hearing
on the merits?
B. Was [c]ounsel [i]neffective in his representation of Appellant?
C. Does Graham v. Florida[, 560 U.S. 48 (2010),] and People
v. House [(no citation provided)] apply to Appellant’s [sic]
whose culpability is questionable when age, history of abuse,
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extreme duress, and diminished capacity are considered
according to recent neuroscience in above mentioned cases
and additional cases under review?
Appellant’s Brief at 5.
This Court’s standard of review regarding an order denying a PCRA
petition is whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. Commonwealth v. Ragan,
923 A.2d 1169, 1170 (Pa. 2007). However, we must begin by addressing
the timeliness of Appellant’s petition, because the PCRA time limitations
implicate our jurisdiction and may not be altered or disregarded in order to
address the merits of a petition. Commonwealth v. Bennett, 930 A.2d
1264, 1267 (Pa. 2007). Under the PCRA, any petition for post-conviction
relief, including a second or subsequent one, must be filed within one year of
the date the judgment of sentence becomes final, unless one of the following
exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition
alleges and the petitioner proves that:
(i) the failure to raise the claim previously was the
result of interference by 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
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(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)(i)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
The trial court imposed Appellant’s judgment of sentence in 1997.
Therefore, her current PCRA petition filed in 2010 is patently untimely. See
42 Pa.C.S. § 9545(b)(1). Accordingly, we cannot address the merits of
Appellant’s issues unless she meets one of the above-stated exceptions to
the PCRA’s time-bar.
Appellant argues that she has satisfied the retroactive-constitutional-
right exception set forth in section 9545(b)(1)(iii), relying on Miller v.
Alabama, 567 U.S. 460 (2012) (holding that a mandatory sentence of life
imprisonment, without the possibility of parole, for those under the age of
eighteen at the time of their crimes violates the Eighth Amendment’s ban on
cruel and unusual punishments), and Montgomery v. Louisiana, 136 S.Ct.
718 (2016) (holding that Miller applies retroactively). Initially, we note that
Appellant filed amendments to her current petition within 60 days of both
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Miller and Montgomery, asserting that those decisions entitle her to
sentencing relief. Accordingly, she has satisfied section 9545(b)(2).1
Nevertheless, we are compelled to conclude that Miller’s holding does
not apply to Appellant, who was 18 years old at the time of her crimes.
Miller is expressly applicable only to minors who were under the age of 18
when they committed their offenses. See Miller, 567 U.S. at 465 (“We …
hold that mandatory [LWOP] for those under the age of 18 at the time
of their crimes violates the Eighth Amendment’s prohibition on cruel and
unusual punishments.) (quotation marks omitted, emphasis added). In
reaching this decision, the Miller Court reasoned, inter alia, that “children
have a ‘lack of maturity and an underdeveloped sense of responsibility,’
leading to recklessness, impulsivity, and heedless risk-taking.” Id. at 471
(quoting Roper v. Simmons, 543 U.S. 551, 569 (2005)).
Here, while recognizing the holding of Miller, Appellant contends that
the rationale underlying that holding should also apply to her, as she was
only 18 years of age when she committed her crimes. Appellant maintains
that “adolescents from the age of 11 to 25 years of age[] have a less
culpable mind set [sic], due to psycho-social immaturity development issues,
and [they do not] fully develop until the age of 25….” Appellant’s Brief at
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1 Specifically, Appellant filed an amended PCRA petition asserting the
applicability of Miller on August 13, 2012, and another amended petition on
March 4, 2016, asserting that Miller applies to her retroactively under
Montgomery.
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21. Appellant argues that, just as with individuals under the age of 18, it
constitutes cruel and unusual punishment to subject her to a mandatory
sentence of life imprisonment, without the possibility of parole, when there
was no consideration of her “mental and emotional development” in
assessing her culpability. Id. at 29.
Unfortunately for Appellant, this Court has issued two precedential
decisions resolving her claims - Commonwealth v. Cintora, 69 A.3d 759
(Pa. Super. 2013), and Commonwealth v. Furgess, 149 A.3d 90 (Pa.
Super. 2016). In Cintora, which was decided after Miller but before
Montgomery, the petitioners, who were both over the age of 18 at the time
they committed their crimes (19 and 22), sought relief in an untimely PCRA
petition, arguing that they satisfied the timeliness exception set forth in
section 9545(b)(1)(iii) based on Miller. Consistent with the current
scientific consensus that a human brain does not fully mature until a person
reaches their mid-twenties, the petitioners in Cintora argued that they
should be entitled to relief under Miller because they were similarly situated
to minors who benefited from the Miller decision. We rejected their virtual-
minor theory as a basis to invoke section 9545(b)(1)(iii), citing Miller’s
express age restriction. Cintora, 69 A.3d at 764.
In Furgess, the appellant raised a similar argument as that presented
in Cintora, but he did so after Montgomery’s ruling rendered retroactive
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the right established in Miller.2 Reconsidering Cintora post-Montgomery,
the Furgess Court determined that:
[N]othing in Montgomery undermines Cintora’s holding that
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 [s]ection 9545(b)(1)(iii).
Accordingly, Cintora remains controlling on this issue, and
Appellant’s assertion of the time-bar exception at Section
9545(b)(1)(iii) must be rejected.
Furgess, 149 A.3d at 94. Cintora and Furgess clearly preclude relief for
Appellant.
We also must reject Appellant’s argument that it violates the Equal
Protection Clause “to make it unconstitutional to give some adolescents
(adolescents under 18)[] life without the possibility of parole, due to a less
culpable mind set [sic], … but not apply [that rule] to all adolescents.”
Appellant’s Brief at 25. The timeliness exception set forth in section
9545(b)(1)(iii) explicitly requires an existing decision holding that a specific
right applies retroactively. While the Montgomery decision constitutes such
a ruling with respect Miller’s Eighth-Amendment based holding, Appellant
has not pointed to any decision by the United States or Pennsylvania
Supreme Courts that has recognized the retroactivity of a similar right
grounded in equal protection. Therefore, Appellant has failed to satisfy the
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2 The Cintora Court had alternatively rejected the petitioners’ claim on the
basis that the Miller decision did not apply retroactively. Cintora, 69 A.3d
at 764 n.4.
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timeliness exception of section 9545(b)(1)(iii), thus divesting this Court of
jurisdiction to grant her sentencing relief, or to assess the merits of her
ineffective assistance of counsel claims.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/9/2018
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