Com. v. Cox, D.

Opinion

J-S08034-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : : DARON ALBERT COX : : Appellant No. 964 WDA 2016

Appeal from the PCRA Order June 1, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0001126-1997, CP-02-CR-0002029-1997

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and SOLANO, J.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED JANUARY 30, 2017

Appellant, Daron Albert Cox, appeals pro se from the order entered in

the Allegheny County Court of Common Pleas, which denied his third petition

filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-

9546. On July 24, 1997, a jury convicted Appellant of first-degree murder

and related offenses arising from his involvement in a shooting death on

December 7, 1996. Appellant was 18 years old at the time of the incident.

The court sentenced Appellant on September 23, 1997, to mandatory life

imprisonment, and a concurrent term of 3½ to 7 years’ imprisonment. This

Court affirmed the judgment of sentence on January 13, 1999, and our

Supreme Court denied allowance of appeal on June 22, 1999. See

Commonwealth v. Cox, 736 A.2d 680 (Pa.Super. 1999) (unpublished J-S08034-17

memorandum), appeal denied, 559 Pa. 688, 739 A.2d 1055 (1999).

Appellant filed his first PCRA petition on June 13, 2000, which the PCRA

court denied on June 9, 2004. This Court affirmed on September 14, 2005.

See Commonwealth v. Cox, 888 A.2d 3 (Pa.Super. 2005) (unpublished

memorandum). Appellant unsuccessfully filed a second PCRA petition in

2006. On February 16, 2016, Appellant filed the current pro se PCRA

petition. The PCRA court issued Rule 907 notice on April 20, 2016, and

denied Appellant’s petition on June 1, 2016. Appellant timely filed a pro se

notice of appeal. The PCRA court did not order and Appellant did not file a

Rule 1925(b) statement.

The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Turner, 73 A.3d 1283 (Pa.Super. 2013), appeal denied,

625 Pa. 649, 91 A.3d 162 (2014). A PCRA petition must be filed within one

year of the date the underlying judgment becomes final. 42 Pa.C.S.A §

9545(b)(1). A judgment is deemed final at the conclusion of direct review or

at the expiration of time for seeking review. 42 Pa.C.S.A. § 9545(b)(3).

The three statutory exceptions to the timeliness provisions in the PCRA allow

for very limited circumstances under which the late filing of a petition will be

excused. 42 Pa.C.S.A. § 9545(b)(1). A petitioner asserting a timeliness

exception must file a petition within sixty days of the date the claim could

have been presented. 42 Pa.C.S.A. § 9545(b)(2). When asserting the

newly created constitutional right exception under Section 9545(b)(1)(iii), “a

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petitioner must prove that there is a new constitutional right and that the

right has been held by that court to apply retroactively.” Commonwealth

v. Chambers, 35 A.3d 34, 41 (Pa.Super. 2011), appeal denied, 616 Pa.

625, 46 A.3d 715 (2012) (internal quotations omitted).

Instantly, Appellant relies upon two United States Supreme Court

decisions as the bases for an exception to the PCRA timeliness requirement

as well as for substantive PCRA relief: Miller v. Alabama, ___ U.S. ___,

132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (ruling unconstitutional mandatory

life without possibility of parole (“LWOP”) sentences for juvenile offenders),

and Montgomery v. Louisiana ___ U.S. ___, 136 S.Ct. 718, 193 L.Ed.2d

599 (filed January 25, 2016, and revised on January 27, 2016) (holding

Miller applies retroactively to cases on collateral review). Appellant filed the

current PCRA petition on February 16, 2016, within sixty days of the

Montgomery decision. See Commonwealth v. Secreti, 134 A.3d 77

(Pa.Super. 2016) (holding date of Montgomery decision controls for

juveniles, who received LWOP sentences, for purposes of 60-day rule in 42

Pa.C.S.A. § 9545(b)(2)). Appellant also correctly observes that mandatory

LWOP sentences for juvenile offenders are unconstitutional under

Montgomery/Miller. See id. (holding retroactivity under Montgomery is

effective as of date of Miller decision; orders denying PCRA relief in cases

involving Montgomery/Miller must be reversed and remanded for

resentencing consistent with this new rule of substantive law and

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Commonwealth v. Batts, 620 Pa. 115, 131-32, 66 A.3d 286, 296 (2013)).

At the time of the offense, however, Appellant was not a juvenile; he was

over 18 years old. Therefore, Appellant is not entitled to relief under

Montgomery/Miller. Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/30/2017

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