J-S38023-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KAQUWAN MALIK MILLIGAN,

Appellant No. 3473 EDA 2016

Appeal from the PCRA Order October 7, 2016

In the Court of Common Pleas of Carbon County

Criminal Division at No(s): CP-13-CR-0000046-1998

BEFORE: GANTMAN, P.J., SHOGAN and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 16, 2017

Kaquwan Malik Milligan (“Appellant”) appeals from the order denying 

his fourth petition for relief filed pursuant to the Post Conviction Relief Act 

(“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm.

The trial court set forth the following relevant procedural history:

On April 21, 1999, [Appellant] was convicted of second 

degree murder, robbery, criminal conspiracy, and aggravated 

assault2for his role in the October 26, 1997 drug-related 

shooting and death of Tyrone Hill. Thereafter, [Appellant] was 

sentenced to life imprisonment on the murder charge, followed 

by a sentence of not less than five nor more than ten years for

2 18 Pa.C.S. § 2502(b), § 3701(a)(1), § 903(a)(1), 

and § 2702(a)(1), respectively.

____________________________________________

*

 Former Justice specially assigned to the Superior Court.
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criminal conspiracy; the convictions for robbery and aggravated 

assault merged for sentencing purposes. [Appellant’s]

conviction and sentence were upheld on direct appeal and

became final when the United States Supreme Court denied his 

petition for writ of certiorari on November 26, 2001. 

[Commonwealth v. Milligan, 769 A.2d 1207, 3038 EDA 1999 

(Pa. Super. filed December 6, 2000); 781 A.2d 142, 0012 MDA 

2001 (Pa. filed June 19, 2001) and Milligan v. Pennsylvania, 

534 U.S. 1044, 01-6349 (November 26, 2001), respectively.]

On March 26, 2002, [Appellant] filed his first petition 

pursuant to the [PCRA]. Following the appointment of counsel 

and the filing of an amended petition on September 6, 2002, the 

petition was denied on April 21, 2003, after a hearing on 

January 24, 2003. The Pennsylvania Superior Court affirmed 

[the PCRA court’s] ruling on September 22, 2004

[Commonwealth v. Milligan, 863 A.2d 1227, 1718 EDA 2003 

(Pa. Super. September 22, 2004) (unpublished memorandum)].

Subsequently, the Pennsylvania Supreme Court denied 

[Appellant’s] petition for allowance of appeal on April 5, 2005

[Commonwealth v. Milligan, 872 A.2d 172, 988 MAL (2004) 

(Pa. April 5, 2005)].

[Appellant] filed his second PCRA petition on August 5, 

2005. Counsel was again appointed to represent [Appellant] and 

an amended petition was filed on April 6, 2006. In this petition,

[Appellant] raised two primary issues: (1) whether the 

Commonwealth failed to disclose exculpatory evidence in the 

nature of an alleged plea agreement with one of [Appellant’s]

co-conspirators, Verna Russman, in exchange for her 

cooperation and favorable testimony against [Appellant]; and (2) 

whether the Commonwealth coerced perjured testimony from a 

Commonwealth witness, Kadias Murdaugh, to refute 

[Appellant’s] alibi defense. A hearing on the amended petition 

was held on June 9, 2006. [Appellant’s] second PCRA petition 

was dismissed on November 22, 2006 because it failed to meet 

any of the exceptions to the PCRA’s timeliness requirements and 

was, therefore, time barred. The Pennsylvania Superior Court 

affirmed this dismissal on August 14, 2007. [Commonwealth 

v. Milligan, 935 A.2d 17, 3440 EDA 2006 (Pa. Super. 

August 14, 2007) (unpublished memorandum)]. Ultimately, the 

Pennsylvania Supreme Court denied [Appellant’s] petition for 

allowance of appeal on May 20, 2008 [Commonwealth v. 

Milligan, 953 A.2d 541, 744 MAL (2007) (Pa. May 20, 2008)].
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On December 27, 2012, [Appellant] filed his third PCRA 

petition. In that petition, [Appellant] raised two (2) arguments 

as to why the United States Supreme Court decision in Miller v. 

Alabama, 132 S.Ct. 2455 (2012) should apply in his case. First 

[Appellant] claimed that he had not physically matured to the 

point of adulthood at the time he committed his crime and, as a 

result, his situation was akin to that of the juvenile appellant in 

Miller. Second, [Appellant] argued that, pursuant to the Equal 

Protection Clause of the Fourteenth Amendment of the United 

States Constitution, all persons with immature brains must be 

treated similarly and therefore, he should have been considered 

a juvenile for purposes of sentencing. Upon review of the 

Commonwealth’s answer to [Appellant’s] petition, on April 8

2013, [the PCRA court] issued a notice of intent to dismiss that 

petition without a hearing pursuant to Pennsylvania Rule of 

Criminal Procedure 907. [Appellant] failed to file a response to 

our notice and his third PCRA petition was denied and dismissed 

on May 8, 2013.

On March 18, 2016, [Appellant] filed his fourth PCRA 

petition arguing that, based on Miller v. Alabama, 132 S.Ct. 

2455 (2012), he was a juvenile at the time Tyrone Hill was 

murdered. On April 5, 2016, Albert V.F. Nelthropp, Esquire, was 

appointed as counsel to represent [Appellant] in connection with 

aforesaid petition.

Attorney Nelthropp filed an amended PCRA petition on 

behalf of [Appellant] on May 27, 2016, titled, “Petition for PostConviction Relief Pursuant to 42 Pa.C.S. Section 9543.” In 

addition to the Miller-based argument previously advanced, 

[Appellant] also contends that since he lacked the intent to kill, 

he is categorically less culpable pursuant to Enmund v. Florida, 

102 S.Ct. 3368 (1982).

After oral argument was held on the matter3, [the PCRA 

court] denied and dismissed [Appellant’s] PCRA petition on 

October 7, 2016, for the following reasons: 1. [Appellant’s]

3 By agreement of counsel, [Appellant’s] petition was 

scheduled for oral argument as opposed to an 

evidentiary hearing. 
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petition was untimely filed depriving [the PCRA court] of 

jurisdiction; 2. The issues presented were previously litigated; 

and 3. [Appellant] was nineteen (19) years old at the time of 

Tyrone Hill’s murder, rendering Montgomery v. Louisiana, 136 

S.Ct. 718 (2016) and Miller v. Alabama, 132 S.Ct. 2455, 

inapposite to the instant case.

Trial Court Opinion, 1/9/17, at 5–8.

Appellant filed a Notice of Appeal on November 7, 2016 and on 

November 8, 2016, the PCRA Court ordered Appellant to file a Pa.R.A.P.

1925(b) Statement. Appellant timely filed his 1925(b) Statement of Errors

Complained of on Appeal on November 30, 2016. 

Appellant raises the following issues on appeal:

I. Whether [the PCRA] court erred in finding that [Appellant] 

did not meet the jurisdictional filing requirements for a 

PCRA petition[?]

II. Whether [the PCRA] court erred by determining that the 

issues raised by [Appellant] have been previously 

litigated[?]

III. Whether [the PCRA] court erred in determining that 

[Appellant’s] sentence did not violate the Eighth 

Amendment of the United States Constitution by not 

applying Miller v. Alabama, 132 S.Ct. 2455 (2012)[?]

IV. Whether [the PCRA] court erred in not applying Enmund v. 

Florida, 102 S.Ct. 3368 (1982) and determining that 

[Appellant’s] lack of intent to kill made him categorically 

less culpable[?]

V. Whether, in light of Miller, the Appellant should be resentenced under 18 Pa.C.S.A. section 1102(b)[?]

VI. Whether [the PCRA] court erred in not finding that the 

issues raised in the present PCRA petition meet the Lawson 

standard for a second or subsequent PCRA petition[?]
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Appellant’s Brief at 5.

“We review an order dismissing a petition under the PCRA in the light 

most favorable to the prevailing party at the PCRA level.” Commonwealth 

v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012). “In reviewing an order 

denying post-conviction relief, we examine whether the trial court’s 

determination is supported by evidence of record and whether it is free of 

legal error.” Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). 

We grant great deference to the trial court’s factual findings. Ford, 44 A.3d 

at 1194. “A PCRA court’s finding will not be disturbed unless there is no 

support for the findings in the certified record.” Commonwealth v. Garcia, 

23 A.3d 1059, 1061 (Pa. Super. 2011). 

Before we reach the merits of Appellant’s PCRA claims, we must 

determine whether Appellant’s petition is timely. Pursuant to 42 Pa.C.S. 

§ 9545(b)(1), any PCRA petition must be filed within one year of the date 

the judgment becomes final. “It is well settled that the PCRA’s time 

restrictions are jurisdictional in nature.” Robinson, 139 A.3d at 185. “As 

such, this statutory time-bar implicates the court’s very power to adjudicate 

a controversy and prohibits a court from extending filing periods except as 

the statute permits.” Id. The jurisdictional time limits are mandatory and 

interpreted literally. Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 

1999). “Unlike a statute of limitations, a jurisdictional time limitation is not 
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subject to equitable principles such as tolling except as provided by statute.” 

Id. 

Here, Appellant’s judgment of sentence was final on November 26, 

2001, the date the Supreme Court of the United States denied his petition 

for writ of certiorari. To be timely, Appellant’s PCRA petition need to be filed 

on or before November 26, 2002. The instant petition, Appellant’s fourth 

PCRA petition, was filed on March 18, 2016, nearly fourteen years beyond 

the statutorily proscribed time, and is untimely unless one of the three 

statutory exceptions applies. Pursuant to 42 Pa.C.S. § 9545(b)(1)(i)–(iii):

(b)(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

(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). 
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Where, as in this case, the petition is untimely, the burden is on the 

petitioner to prove that one of the statutory exceptions applies. 

Commonwealth v. Beasley, 741 A.2d 1258, 1260 (Pa. 1999). Any 

petition relying upon Section 9545(b)(1)(i-iii) must be filed within sixty days 

from the date the claim could have been presented. 42 Pa.C.S. 

§ 9545(b)(2).1

In this case, Appellant argues that his petition is timely because it falls 

within the exception set forth in 42 Pa.C.S. § 9545 (b)(1)(iii), relating to the 

assertion of a constitutional right that applies retroactively. Appellant’s Brief 

at 6. Specifically, Appellant relies on Montgomery v. Louisiana, 136 S.Ct. 

718 (2016), in an attempt to convert his patently untimely petition into one 

that is timely. In Montgomery, the Supreme Court of the United States 

held that its earlier decision in Miller v. Alabama, 567 U.S. 460 (2012), 

which prohibited mandatory life sentences without parole for juvenile

offenders, constitutes a substantive constitutional rule that should apply 

retroactively and on collateral review. Montgomery, 136 S.Ct. at 736. In 

Miller, the Supreme Court of the United States specifically held that 

“mandatory life punishment without parole for those under the age of 18 

____________________________________________

1 As required by 42 Pa.C.S. § 9545(b)(2), Appellant’s petition was filed on 

March 18, 2016, within sixty days of Montgomery v. Alabama, 136 S.Ct. 

718 (2016). 
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at the time of their crimes violates the Eighth Amendment’s prohibition on 

‘cruel and usual punishments.’” Miller, 567 U.S. at 465 (emphasis added). 

In the instant case, the crimes for which Appellant was convicted 

occurred on October 26, 1997. Appellant was born on February 11, 1978. 

Notes of Testimony, 9/30/16, at 5. Appellant was over nineteen and one

half years old at the time of the murder; thus, he is not in the class of 

individuals impacted by the Miller decision. Despite the fact that he was not 

a juvenile when he committed the crimes for which he was convicted, 

Appellant argues that Miller and Montgomery should be expanded to 

include individuals over eighteen years of age. Appellant’s Brief 7–16. 

Appellant essentially argues that because he was immature when he 

committed the crimes, he is categorically less culpable and the United States 

Supreme Court’s decisions in Miller and Montgomery should be expanded 

to apply to him. 

We previously rejected this exact claim in Commonwealth v. 

Furgess, 149 A.3d 90 (Pa. Super. 2016). In that case, like here, the 

appellant filed a time-barred PCRA petition and argued that Miller and 

Montgomery brought his untimely petition within the ambit of 42 Pa.C.S. 

§ 9545(b)(1)(iii). As we held in Furgess, Miller applies “only to those 

defendants who were under the age of 18 at the time of their crimes.” 

Furgess, 149 A.3d at 94. (quoting Miller v. Alabama, 132 S.Ct. at 2460). 

We further noted in Furgess that, “rather than presenting an argument that 
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is within the scope of the Miller decision, the argument made by Appellant 

seeks an extension of Miller to persons convicted of murder who were 

older at the time than the class of defendants subject to the Miller holding.” 

Furgess, 149 A.3d at 94 (emphasis in original). This Court held that “a 

contention that newly-recognized constitutional right should be extended to 

others does not render a petition seeking such an expansion of the right 

timely pursuant to Section 9545(b)(1)(iii).” Id. (emphasis in original).

Thus, because Appellant was not under the age of eighteen at the time 

of his crimes, he may not rely on Miller and Montgomery to bring his 

untimely PCRA petition within the ambit of the exception at 42 Pa.C.S. 

§ 9545(b)(1)(iii). Furgess, 149 A.3d at 94. The trial court was correct 

when it determined it lacked jurisdiction over Appellant’s fourth PCRA 

petition. We, therefore, affirm the PCRA court’s order denying Appellant 

post-conviction relief and will not reach the merits of any arguments 

contained therein.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/16/2017