Com. v. Ocasio, C.

• Court: Superior Court of Pennsylvania
• Decided: July 20, 2018
• Docket: 3965 EDA 2017
• Status: Unpublished

Opinion

J-S36041-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : CARLOS OCASIO : : Appellant : No. 3965 EDA 2017

Appeal from the PCRA Order November 21, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0701691-1995

BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED July 20, 2018

Appellant, Carlos Ocasio, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas, which dismissed as untimely his

serial petition filed under the Post Conviction Relief Act (“PCRA”), at 42

Pa.C.S.A. §§ 9541-9546. On November 19, 1996, a jury convicted Appellant

of first-degree murder, three counts of aggravated assault, conspiracy,

possessing instruments of crime, and carrying firearms in public streets in

Philadelphia. The court sentenced Appellant on March 3, 1997, to life

imprisonment for the murder conviction and imposed lesser terms of

imprisonment for the remaining crimes. This Court affirmed the judgment of

sentence on June 16, 1999, and our Supreme Court denied allowance of

appeal on October 18, 1999. See Commonwealth v. Ocasio, 742 A.2d 208

(Pa.Super. 1999), appeal denied, 560 Pa. 723, 745 A.2d 1220 (1999). J-S36041-18

On October 4, 2000, Appellant timely filed a counseled first PCRA

petition. Following appropriate notice per Pa.R.Crim.P. 907, the court denied

relief on January 17, 2002. This Court affirmed the denial of PCRA relief on

March 22, 2004. See Commonwealth v. Ocasio, 850 A.2d 11 (Pa.Super.

2004).

Appellant filed the current serial pro se PCRA petition on March 25, 2016.

The court issued Rule 907 notice on October 11, 2017, and denied PCRA relief

on November 21, 2017. Appellant timely filed a pro se notice of appeal on

December 6, 2017. No Pa.R.A.P. 1925(b) statement was ordered or filed.

Preliminarily, the timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A

PCRA petition, including a second or subsequent petition, shall be filed within

one year of the date the underlying judgment of sentence becomes final. 42

Pa.C.S.A. § 9545(b)(1). A judgment of sentence is deemed 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.A. § 9545(b)(3). The

statutory exceptions to the PCRA time-bar allow for very limited circumstances

under which the late filing of a petition will be excused; a petitioner asserting

a timeliness exception must file a petition within 60 days of when the claim

could have been presented. 42 Pa.C.S.A. § 9545(b)(1-2).

Instantly, Appellant’s judgment of sentence became final on January 16,

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2000, upon expiration of the time for filing a petition for writ of certiorari with

the U.S. Supreme Court. See U.S.Sup.Ct.R. 13. Appellant filed the current

PCRA petition on March 25, 2016, which is patently untimely. See 42

Pa.C.S.A. § 9545(b)(1). Appellant attempts to invoke the “new constitutional

right” exception to the statutory time-bar per Section 9545(b)(1)(iii), claiming

he is entitled to relief under Miller v. Alabama, 567 U.S. 460, 132 S.Ct.

2455, 183 L.Ed.2d 407 (2012) (holding sentence of mandatory life

imprisonment without possibility of parole, for those under age of 18 at time

of their crimes, violates Eighth Amendment’s prohibition on cruel and unusual

punishments) and Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718,

193 L.Ed.2d 599 (2016) (holding Miller applies retroactively to cases on state

collateral review). Nevertheless, Appellant concedes he was over 18 years old

at the time of the offenses at issue. Thus, Miller and Montgomery do not

apply. Furthermore, this Court has previously rejected the controversial

argument that relief under Miller and Montgomery should be extended to

individuals under 25 years old because the brain is not developed fully until

that age. See Commonwealth v. Furgess, 149 A.3d 90 (Pa.Super. 2016)

(holding appellant who was 19 years old at time of offenses was not entitled

to relief under Miller and Montgomery on collateral review; rejecting

“technical juvenile” argument). Therefore, the court properly dismissed

Appellant’s petition as untimely.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/20/2018

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