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____________________________________ * Retired Senior Judge assigned to the Superior Court. NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA

v.
ANTHONY KENNETH BOGGS,

Appellant. : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 3611 EDA 2018
Appeal from the PCRA Order Entered, November 28, 2018, in the Court of Common Pleas of Chester County, Criminal Division at No(s): CP

- 15

- CR

- 0000505

- 1997.

BEFORE: LAZARUS, J., KUNSELMAN, J., and STRASSBURGER*, J. MEMORANDUM BY KUNSELMAN, J.: FILED MAY 3 1 , 2019 Anthony Kenneth Boggs appeals pro se from the order that denied as untimely his serial petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541

- 46. We affirm. The pertinent facts and procedural history are as follows: On March 25, 1998, a jury convicted Boggs of first

- degree murder in the shooting of Raymond Parks. At the time of the victim’s murder, Boggs was approximately 181⁄2 years old. Be cause the jury could not reach a unanimous decision during the penalty phase, the trial court, on April 1, 1998, imposed the mandatory term of life in prison without the possibility of parole. Boggs filed a timely appeal to this Court, and, on January 14, 1999, we affirmed his judgment of
sentence. Commonwealth v. Boggs , 736 A.2d 678 (Pa. Super. 1999) (unpublished memorandum) . On July 12, 1999, our Supreme Court deniedJ

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his petition for allowance of appeal. Commonwealth v. Boggs , 740 A.2d 1143 (Pa. 1999)

. On February 10, 2000, Boggs filed a timely pro se PCRA petition and an amended petition on June 22, 2001. The PCR A court appointed counsel, who later withdrew , and the PCRA court appointed new counsel. On October 18, 2002, PCRA counsel filed an amende d PCRA petition, and later “a supplemented and corrected” amended PCRA petiti on. Over the course of a four

- month period, the PCRA court held several evidentiary hearings. On June 12, 2003, the PCRA court ultimately denied Boggs’ PCRA petition . Boggs fil ed an appeal to this Court. We affirmed the denial of post

- conviction relief on July 13, 2004, and our Supreme Court denied his petition for allowance of appeal nunc pro tunc on November 24, 2004. Commonwealth v. Boggs , 859 A.2d 826 (Pa. Super. 2004) (unpublished memorandum), appeal denied , 190 MM 2004 (Pa. 2004)

. Thereafter, Boggs unsuccessfully sought relief in the federal courts. On December 15, 2009 , he also filed a motion for DNA testing , which the PCRA court deni ed on July 1, 2010. Boggs also unsuccessfully sought post

conviction relief in PCRA petitions he filed in 2015 and 2017. On July 30, 2018, Boggs filed the pro se PCRA petition at issue, his fourth. After the Commonwealth filed an answer to the petition, the PCRA court, on September 18 , 2018, issued Pa.R.Crim.P. 907 notice of its intention to dismiss Boggs’ fourth PCRA petition as untimely filed. Boggs filed a response. By order entered November 28, 2018, the PCRA court denied Boggs’ serial petition.J

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T his appeal followed. Both Boggs and the PCRA court have complied with Pa.R.A.P. 1925. 1 This Court’s standard of review regarding an order dismissing a petition under the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Halley , 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr , 768 A.2d 1164, 1166 (Pa. Super. 2001). Before addressing the merits of Boggs’ substantive claims on appeal, we must first address whether the PCRA court correctly concluded that Boggs ’

ser ial PCRA petition was untimely filed. The timeliness of a post

- conviction petition is j urisdictional. Commonwealth v. Hernandez , 79 A.3d 649, 651 (Pa. Super. 2013). Generally, a petition for relief under the PCRA, including a second or subsequent petition, must be filed within one year of the date the judgment becomes final unless the peti tion alleges, and the petitioner proves, that an exception to the time for filing the petition, set forth at 42 Pa.C.S.A. sections

_________________ __________ ______ ____ _______ 1 The PCRA court asserts that we should quash Boggs’ appeal because he failed to serve the court with a copy of his Rule 1925(b) statement. See PCRA Court Opinion, 1/11/19, at 1 n.1. Boggs’ omission sh ould result in waiver of all his appellate issues. See generally , Commonwealth v. Hooks , 921 A.2d 1199 (Pa. Super. 2007). As discuss ed, infra , because Boggs did not file his petition in a timely manner, we do not reach his substantive issues.J

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9545(b)(1)(i), (ii), and (iii), is met. 2 42 Pa.C.S.A. § 9545. A PCRA petition invoking one of these statutory exceptions mu st “be filed within 60 days of the date the claims could have been presented.” See Hernandez , 79 A.3d 651

- 52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2). 3 Finally, exceptions to the PCRA’s time bar must be pled in the petition, and may not be raised for the first time on appeal. Commonwealth v. Burton , 936 A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (providing that issues not raised before the lower court are waived and cannot be raised for the first time on appeal). Pennsylvania law makes clear that no court has jurisdiction

_________________ __________ ______ ____ _______ 2 The exceptions to the timeliness requirement are: (i) the failure to raise the claim previously was the result of interference of 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 ha ve been ascertained by the exercise of due diligence; or (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 a nd has been held by that court to apply retroactively. 42 Pa.C.S.A. §§ 9545(b)(1)(i), (ii), and (iii).

3 Our legislature recently amended this section of the PCRA to provide petitioner’s one yea r to file a petition invoking a time

- bar exception. See A ct of 2018, October 24, P.L. 894, No. 146. This amendment does not apply to Boggs ’ serial petition.J

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to hear an untimely PCRA petition. See Commonwealth v. Robinson , 837 A.2d 1157, 1161 (Pa. 2003). Here, Boggs’ judgm ent of sentence became final on October 7, 1999, ninety days after our Supreme Court denied his petition for allowance of appeal, and the time to file a petition for writ of certiorari with the United States Supreme Court expired

. See 42 Pa.C.S.A. § 9545( b)(3). Thus , Boggs had until October 7, 2000, to file a timely petition. As he filed the petition a t issue in 2018 , it is untimely unless Boggs has satisfied his burden of pleading and proving that one of the enumerated exceptions applies. See Hernandez , supra . Boggs h as failed to establish any exception to the PCRA’s time bar. He attemp ts to argue that he is entitled relief under the United States Supreme Court’s recent decisions that held that mandatory life without parole sentences for juveniles was u nconstitutional. See generally , Miller v. Alabama , 567
U. S. 460 (2012) ; see also Montgomery v. Louisiana , ___ U.S. ___, 136 S.Ct. 718 (2016) (applying the Miller decision retroactively). Unfortunately, for Boggs, he did not file his fourth petition withi n 60 days of when such claims could have been first brought. Thus, the PCRA court lacked authority to address the substantive merits of Bogg s’ claims. See generally , Commonwealth v. Gamboa - Taylor , 753 A.2d 780, 783 (Pa. 2000). This Court has previously held that the date upon which Montgomery had been decided is to be the date used when applying the sixty

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determine if a PCRA petition raising a Miller / Montgomery claim is timely. Commonwealth v. Secreti , 134 A.3d 77, 82 (Pa. Super. 2016). The United States Supreme Court decided Montgomery on January 25, 2016, and Boggs did not file his serial PCRA petition at issue until July 30, 2018. Even considering that the PCRA court could not entertain a serial petition until t his Court affirmed the dismissal of his prior petition, see generally Commonwealth v. Lark , 746 A.2d 585 (Pa. 2000 ), we affirmed the denial of his third petition in November 2017. Boggs , supra . As Boggs did not file his serial petition until over six mon ths later, he cannot establish a time

- bar exception, and the PCRA court properly denied his fourth PCRA petition as untimely filed. 4

Order affirmed.

_________________ __________ ______ ____ _______ 4 We further note that because Boggs was o ver the age of eighteen when he killed the victim he is not entitled to the application of Miller / Montgomery , and this Court has repeatedly rejected his argument regarding brain development of post

- adolescents (over age 18)

. See , e.g. , Commonwealth v. Pew , 189 A.3d 486 (Pa. Super. 2018); Commonwealth v. Woods , 179 A.3d 37, 44 (Pa. Super. 2017). In addition, a lthough Boggs relies upon the recent federal court decision in Noel v. United States , 2018 WL 1541898 (D. Conn. 2018), a bsent a United States Supreme Court pronouncement, the decisions of federal courts are not binding on state courts. Commonwealth v. Wal ker , 139 A.3d 225 (Pa. Super. 2016). Moreover, as Noel is not a United States Supreme Court decision or a Pennsylvania Supreme Court decision , it cannot used to establish the Section 9545(b)(1)(iii) time

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/31/19