J

- S42015

- 19

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

v.
MELVIN WHITE,

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

PENNSYLVANIA

No. 3162 EDA 2018 Appeal from the PCRA Order Entered September 21, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 1106081

- 1979

BEFORE: OTT, J., KUNSELMAN, J., and COLINS, J. * MEMORANDUM BY OTT, J.: FILED OCTOBER 21 , 2019
Melvin White appeals, pro se , from the order entered September 21 , 201 8 , in the Court of Common Pleas of Philadelphia County denying, without a hearing, his third petition filed pursuant to t he Post Conviction Relief Act (PCRA). 1 In this timely appeal, White claims the PCRA court erred in : (1) denying scientific evidence regarding brain science as meritless; and ( 2 ) failing to apply the United States Supreme Court’s decisions in Miller v.

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. A. §§ 9541

- 9546.J

- S42 015

- 19

- 2

-

Al abama , 567 U.S. 460 (2012) , 2 and Montgomery v. Louisiana , ––– U.S.

–––– , 136 S.Ct. 718 (2016). 3 After a thorough review of the parties’ briefs, certified record, relevant law, we affirm. 4 We briefly summarize the facts and procedural history as follows

. On October 29, 1979 , when White was 23 years old, he and a co

- defendant decapitated White’s common

- law wife in front of their two young children, then displayed the severed head to the police

. On April 4, 1983, a jury found White guilty of first

- degree mu rder . The trial court sentenced White to life imprisonment for the murder conviction. This Court affirmed the judgment of

_________________ __________ ______ ____ _______ 2 The Miller Court held that mandatory sentences of life imprisonment without parole for minors were unconstitutional, due to the immaturity of a minor’s brain development.

3 The Montgomery Court held that the Miller decision was entitled to retroactive application on collateral review.

4 White appears to assert the PCRA court erred in not granting his request for an extension of time to file a response to the Pa.R.Crim.P. 907 notice

. However , for the reasons discusse d below , we find the claim does not merit relief. This Court has held the “failure to issue Rule 907 notice is not reversible error where the record is clear that the petition is untimely.” Commonwealth v. Zeigler , 148 A.3d 849, 852 n.2 (Pa. Super. 2016). Given this, we fail to s ee how the failure to grant an extension of time to file a response to a Rule 907 notice in a case where the PCRA petition is plainly untimely is reversible error. Moreover, our review of White’s brief demonstrates that his proposed response was merely a reiteration of his contention that Miller / Montgomery should apply to him, a declaration that we will discuss in detail below. Further, White argues the PCRA court erred in not ordering him to file a Pa.R.A.P. 1925(b) statement; this averment lack s merit because the PCRA court is not required to issue such an order. See Pa.R.A.P. 1925(b).J

- S42 015

- 19

- 3

-

sentence on March 29, 1985. Commonwealth v. White, 494 A.2d 487 (Pa. Super. 1985). The Pennsylvania Supreme Court denied allocatur on July 25,
1985. White subsequently filed two PCRA petitions. On March 29, 2016 , White filed the instant PCRA petition, his third , claiming although he was 23 years old at the time of his w ife’s murder , and although Miller only applies to those defendan ts who were under the age of 18 at the time of the crime, he should be entitled to relief because scientifically, his brain was not fully developed. On January 26, 2017, White filed an amended PCRA petition. On August 20, 2018, the PCRA court issued

a Rule 907 notice of intent to dismiss. On September 7, 2018, White filed a motion for extension of time to file a response to the Rule 907 notice , upon which the court did not rule

. 5 On September 21, 2018, the PCRA court dismissed the petition as untimely filed. On October 19, 2018, White file d the instant, timely appeal. The PCRA court did not order White to file a concise statement. On October 19, 2018, the PCRA court issued an opinion. “In reviewing the denial of PCRA relief, we examine whether the PCRA court’s determination is supported by the record and free of legal error.” Commonwealth v. Mitchell , 141 A.3d 1277, 1283

– 1284 (Pa. 2016) (internal punctuation and citation omitted). Here, the PCRA court determined, inter alia , that White ’s petition was untimely. We agree. A petitioner must

_________________ __________ ______ ____ _______ 5 On September 25, 2018, White file a response to the Rule 907 notice.J

- S42 015

- 19

- 4

-

file a PCRA petition within one year of the date the underlying judgment becomes final. See 42 Pa.C.S. § 9545(b)(1). The PCRA timeliness requirement, however, is mandatory and jurisdictional in nature. Commonwea lth v. Taylor , 933 A.2d 1035, 1038 (Pa. Super.2007), appeal denied , 597 Pa. 715, 951 A.2d 1163 (2008) (citing Commonwealth v. Murray , 562 Pa. 1, 753 A.2d 201, 203 (2000)). The court cannot ignore a petition’ s untimeliness and reach the merits of the petit ion. Id. Commonwealth v. Taylor , 67 A.3d 1245, 1248 (Pa. 2013), cert. denied , 572 U.S. 1151 (2014). White ’s judgment of sentence became final on September 25, 1985 , 90 days after the Pennsylvania Supreme Court denied his petition for allowance of appeal and the time for filing a petition for writ of certiorari before the United States Supreme Court expired. See U.S.Sup.Ct. Rule 13 ; 42 Pa.C.S.A. § 9545(b)(3). Therefore, he had until September 25, 1986 , to file a timely PCRA petition. 6 The one before us, filed March 29, 2016 , 7 is patently untimely. Nevertheless, we may still consider an untimely PCRA petition if one of the three time

- for

- filing exceptions applies. See 42 Pa.C.S. § 9545(b)(1)(i)

-

_________________ __________ ______ ____ _______ 6 We recognize the 1995 amendments to the PCRA provided a one

- year grace period for a petitioner to file a first petition when his judgment of sentence was final before the effective date of the amendment, that is, January 16, 1996. See Commonwealth v. Albrecht , 994 A.2d 1091, 1093 n.2 (Pa. 2010). The present petition, however, is W hite’ s third , and, in any event, he filed it approximatel y 20 years later.

7 Although White filed his petition in March 2016 , for reasons that are not apparent from the record, the PCRA court did not take any action on the petition until late August 2018

.J

- S42 015

- 19

- 5

-

(iii). Here, White contends his petitio n meets the newly recognized constitutional right exception, which provides an avenue for relief if the petitioner pleads and proves: 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)(iii). For claims arising prior to December 24, 2017 ,
a petitioner invoking an exception must file his pet ition wi thin 60 days of the date he or she could have p resented the claim

. 8 See Act 2018, Oct. 24, P.L. 894, No. 146, §2 and §3. Here, White asserts the combination of the U.S. Supreme Court decisions in Miller and Montgomery satisfies the timeliness

exc eption. As noted above, White has claimed entitlement to the application of Miller / Montgomery because, at 23 years old at the time of his crime, his brain had not fully developed as described by the Supreme Court in Miller

. However, in a recent, en banc decision, this Court considered and rejected this very argument. Commonwealth v. Lee , 206 A.3d 1 (Pa. Super. 2019) ( en banc ).

_________________ __________ ______ ____ _______ 8 Effective December 24, 2018, Act 146 of 2018 amended 42 Pa.C.S.A. § 9545(b)(2), and now provides that a PCRA petitioner invoking a timeliness exception must file the petition within one year of the date the claim could have been presented, for all claims arising after December 24, 2017. See Act 2018, Oct. 24, P.L. 894, No. 146, §2 and §3. Accordingly, the one

- year extension does not apply to White’s March 29, 2016 petition.J

- S42 015

- 19

- 6

-

In Lee , the defendant was 18 years and nine

- months old when she was involved in a robbery that resulted in the death of the victim. Id. at 3. Relying

on Miller

/ Montgomery , the defendant filed a PCRA petition arguing that she was a “virtual minor” at the time of the crime and “the rationale underlying the Miller holding, including consideration of characteristics of youth and age

related facts identified as constitutionally significant by the Miller Court, provides support for extending the benefit of Miller to h er case.” Id. A panel of this Court disagreed, stating: It is not this Court’s role to override the gatekeeping function of the PCRA time

- bar and create jurisdiction where it does not exist. The PCRA’s time limitations “are mandatory and interpreted li terally; thus, a court has no authority to extend filing periods except as the statute permits.” Commonwealth v. Fahy , 558 Pa . 313, 737 A.2d 214, 222 (1999). The period for filing a PCRA petition “is not subject to the doctrine of equitable tolling.” Id . We recognize the vast expert research on this issue. If this matter were one of first impression and on direct appeal, we might expound differently. However, we are an error

- correcting court. Until the United States Supreme Court or the Pennsylvania S upreme Court recognizes a new constitutional right in a non

juvenile offender, we are bound by precedent. We conclude, as we did in Commonwealth v. Montgomery [181 A.3d 359 (Pa. Super. 2018)], [ Commonwealth v. Furgess , 149 A.3d 90 (Pa. Super. 2016)], and [ Commonwealth v. Cintora , 69 A.3d 759 (Pa. Super. 2013) abrogation on other grounds recognized in Furgess , supra at 94], that age is the sole factor in determining whether Miller applies to overcome the PCRA time

- bar and we decline to extend its categorica l holding.
Lee , supra at 11 (footnote omitted). Thus, the PCRA court correctly concluded that it lacked jurisdiction to consider White’s third PCRA petition.
Pursuant to Lee , we affirm the PCRA court’s order denying White relief.J

- S42 015

- 19

- 7

-

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/21/19