Com. v. Kightlinger, T.

• Court: Superior Court of Pennsylvania
• Decided: December 16, 2016
• Docket: 798 WDA 2016
• Status: Unpublished

Opinion

J-S86038-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

TERRY M. KIGHTLINGER

Appellant No. 798 WDA 2016

Appeal from the PCRA Order May 12, 2016 In the Court of Common Pleas of Venango County Criminal Division at No(s): CP-61-CR-0000339-1998; CP-61-CR-0000340-1998

BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY GANTMAN, P.J.: FILED DECEMBER 16, 2016

Appellant, Terry M. Kightlinger, appeals pro se from the order entered

in the Venango County Court of Common Pleas, which dismissed his third

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

§§ 9541-9546. On November 20, 1998, a jury convicted Appellant of

second-degree murder and related offenses arising from his involvement in a

shooting death on March 3, 1998. Appellant was 18 years old at the time of

the incident. The court sentenced Appellant on December 3, 1998, to

mandatory life imprisonment without the possibility of parole (“LWOP”), and

a consecutive term of 48-120 months’ imprisonment. This Court affirmed

the judgment of sentence on September 13, 2000, and our Supreme Court

denied allowance of appeal on February 5, 2001. See Commonwealth v.

Kightlinger, 766 A.2d 888 (Pa.Super. 2000) (unpublished memorandum), _____________________________

*Former Justice specially assigned to the Superior Court. J-S86038-16

appeal denied, 567 Pa. 711, 785 A.2d 88 (2001). Appellant filed his first

PCRA petition on December 14, 2001, which the PCRA court dismissed on

December 29, 2003. This Court affirmed on January 11, 2006, and our

Supreme Court denied allowance of appeal on August 2, 2006. See

Commonwealth v. Kightlinger, 895 A.2d 648 (Pa.Super. 2006)

(unpublished memorandum), appeal denied, 588 Pa. 763, 903 A.2d 1233

(2006). Appellant unsuccessfully filed a second PCRA petition in 2012. On

February 18, 2016, Appellant filed the current pro se PCRA petition. The

PCRA court issued Rule 907 notice on April 8, 2016, and dismissed

Appellant’s petition on May 12, 2016. Appellant timely filed a pro se notice

of appeal. The PCRA court ordered Appellant to file a Rule 1925(b)

statement; Appellant timely complied.

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

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

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).

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

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

18, 2016, within sixty days of the Montgomery decision. Accordingly,

Appellant’s petition is timely. See Commonwealth v. Secreti, 134 A.3d 77

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

purposes of 60-day rule in 42 Pa.C.S.A. § 9545(b)(2)). Appellant 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 Commonwealth v. Batts, 620 Pa. 115, 131-32, 66 A.3d 286, 296

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(2013)). At the time of the offense, however, Appellant was not a juvenile;

Appellant 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: 12/16/2016

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