J-S14010-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TERRELL CARTER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1247 EDA 2019

Appeal from the PCRA Order Entered March 28, 2019

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0709851-1992

BEFORE: BOWES, J., KING, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.: FILED APRIL 29, 2020

Terrell Carter appeals from the order that dismissed his petition filed 

pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.

When he was twenty-two years old, Appellant shot and killed Evan Gary 

Smith. Appellant was convicted of second-degree murder and was sentenced 

to life imprisonment without possibility of parole (“LWOP”) in 1993. 

Appellant’s direct appeal afforded him no relief, and his initial attempts at 

obtaining collateral relief were unsuccessful. 

On August 22, 2012, Appellant filed a pro se PCRA petition invoking the 

United States Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460, 

465 (2012) (holding that mandatory LWOP sentences “for those under the age 

of 18 at the time of their crimes violates the Eighth Amendment’s prohibition 

on ‘cruel and unusual punishments’”). The court took no action on the 

petition.
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Appellant filed an amended pro se petition on March 24, 2016, 

referencing Montgomery v. Louisiana, 136 S.Ct. 718 (2016) (holding that 

Miller announced a new substantive rule of law that applies retroactively). 

The case was assigned to a judge in August 2017. Counsel entered an 

appearance in June 2018, and filed an amended petition stating four claims:

(i) [Appellant]’s sentence is unconstitutional because his youth 

at the time of the offense rendered him categorically less 

culpable under Miller; 

(ii) [Appellant]’s sentence is unconstitutional because his lack 

of any intent to kill due to intoxication rendered him 

categorically less culpable under Miller; 

(iii) [Appellant]’s sentence is unconstitutional because the 

combined effect of his youth at the time of the offense, his 

lack of any intent to kill due to intoxication, and his 

sustained adolescent substance abuse rendered him 

categorically less culpable under Miller; [and]

(iv) [Appellant]’s sentence is unconstitutional because 

Pennsylvania law permitting the imposition of mandatory 

life without parole sentences on 18-25 year-olds when such 

a sentence is now prohibited for 17-year-olds lacks a 

rational basis and therefore violates the equal protection 

rights of Petitioner under the U.S. and Pennsylvania 

constitutions. 

 

Amended PCRA Petition, 11/25/18, at 2.

On February 26, 2019, the PCRA court issued notice of its intent to 

dismiss Appellant’s petition as untimely filed pursuant to Pa.R.Crim.P. 907. 

After considering Appellant’s response, in which he argued that the claim was 

reviewable as a petition for a writ of habeas corpus if relief was not available 

under the PCRA, the PCRA court dismissed the petition as untimely by order 
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of March 28, 2019. Appellant filed a timely appeal. The PCRA court did not 

direct Appellant to file a Pa.R.A.P. 1925(b) statement, but did author an 

opinion pursuant to Pa.R.A.P. 1925(a). 

Appellant presents the following questions for this Court’s consideration:

I. Did the court of common pleas err in rejecting Appellant’s 

claim that the right established in Miller v. Alabama

applies to [Appellant] who possessed those characteristics 

of youth identified as constitutionally significant for

sentencing purposes by the U.S. Supreme Court?

II. Did the court of common pleas abuse its discretion in failing 

to hold an evidentiary hearing where [Appellant] had raised 

issues of material fact that entitle him to relief?

III. Did the court of common pleas err in declining to construe 

Appellant’s petition as a petition for writ of habeas corpus

even though his claims are not cognizable under the PCRA?

IV. Did the court of common pleas abuse its discretion in failing 

to hold an evidentiary hearing to determine whether 

Appellant’s petition for writ of habeas corpus entitled him to 

relief under the United States and Pennsylvania 

constitutions?

Appellant’s brief at 4 (unnecessary capitalization omitted).

Before we consider the substance of Appellant’s claims, we must 

determine the proper framework for our review. We begin by noting that “the 

PCRA subsumes all forms of collateral relief, including habeas corpus, to the 

extent a remedy is available under such enactment.” Commonwealth v. 

West, 938 A.2d 1034, 1043 (Pa. 2007). “[A] defendant cannot escape the 

PCRA time-bar by titling his petition or motion as a writ of habeas corpus.” 

Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa.Super. 2013). 
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“Simply because the merits of the PCRA petition cannot be considered 

due to previous litigation, waiver, or an untimely filing, there is no alternative 

basis for relief outside the framework of the PCRA.” Commonwealth v. 

Kutnyak, 781 A.2d 1259, 1261 (Pa.Super. 2001). As our Supreme Court has 

explained:

The plain language of Section 9542 demonstrates quite clearly 

that the General Assembly intended that claims that could be 

brought under the PCRA must be brought under that Act. No other 

statutory or common law remedy “for the same purpose” is 

intended to be available; instead, such remedies are explicitly 

“encompassed” within the PCRA.

Commonwealth v. Descardes, 136 A.3d 493, 499 (Pa. 2016) (internal 

alteration and citation omitted; emphasis removed). 

Appellant’s claim is that his sentence is illegal as violative of the Eighth 

Amendment to the U.S. Constitution and Article I, § 13 of the Pennsylvania 

Constitution. This Court has expressly held that such claims are clearly

cognizable under the PCRA, and therefore must be construed under the 

provisions of the PCRA rather than under those applicable to a petition for writ 

of habeas corpus. See Commonwealth v. Montgomery, 181 A.3d 359, 367 

(Pa.Super. 2018) (en banc) (citing, inter alia, 42 Pa.C.S. § 9543(a)(2)(vii)). 

Hence, the PCRA court properly treated Appellant’s petition as a PCRA petition. 

Appellant’s third and fourth issues merit no relief from this Court.

Our next task is to determine whether Appellant’s PCRA petition was 

timely filed, as the timeliness of a PCRA petition is jurisdictional. 

Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa.Super. 2011). 
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Generally, a petition for relief under the PCRA, including a second or 

subsequent petition, must be filed within one year of the date that the 

judgment of sentence became final unless the petition alleges, and the 

petitioner proves, that an exception to the time for filing the petition is met. 

42 Pa.C.S. § 9545. “[W]hen a PCRA petition is not filed within one year of the 

expiration of direct review, or not eligible for one of the three limited 

exceptions, or entitled to one of the exceptions, but not filed within 60 days 

of the date that the claim could have been first brought, the [PCRA] court has 

no power to address the substantive merits of a petitioner’s PCRA claims.” 

Commonwealth v. Brown, 111 A.3d 171, 176 (Pa. Super. 2015).

Appellant’s petition is facially untimely since his judgment of sentence 

became final in 1994. Furthermore, Appellant candidly acknowledges that this 

Court’s decision in Commonwealth v. Lee, 206 A.3d 1 (Pa.Super. 2019) (en 

banc), “forecloses his claim that his [p]etition meets the timeliness exceptions 

under the PCRA and that he is therefore entitled to an evidentiary hearing to 

determine whether his sentence is unconstitutional under Miller.” Appellant’s 

brief at 13-14. In Lee, this Court recognized Appellant’s argument that the 

principles and science underlying the Miller holding are not limited to 

juveniles, but also extend to young adults. See Lee, supra at 10. 

Nonetheless, we indicated that questions of who qualifies as a juvenile and 

whether Miller should apply to immature people who were over eighteen 

when they committed their murders “are better characterized as questions on 
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the merits, not as preliminary jurisdictional questions under section 

9545(b)(1)(iii).” Id. While acknowledging the compelling nature of the 

argument that the rationale behind the Miller decision may apply to people 

beyond the age of majority, this Court found it “untenable to extend Miller to 

one who is over the age of 18 at the time of his or her offense for purposes of 

satisfying the newly-recognized constitutional right exception in section 

9545(b)(1)(iii).” Id. 

Appellant argues extensively that Lee was wrongly decided, and that he 

has presented a colorable claim that he has timely sought PCRA relief under 

Miller. See Appellant’s brief at 14-40. Of course, his argument is untenable. 

See, e.g., Commonwealth v. Bucknor, 657 A.2d 1005, 1007 (Pa.Super. 

1995) (noting that, even if we disagreed with a prior decision, “as a three 

judge panel we are bound by the rulings of a court en banc.”). 

Appellant is free to seek review of his claims and the validity of the Lee

decision in our Supreme Court. However, under the existing law, this Court 

must affirm the PCRA court’s order dismissing Appellant’s petition as untimely. 

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/29/2020