J-S83026-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOHNELL HAINES 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3495 EDA 2016

Appeal from the PCRA Order October 11, 2016

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

No(s): CP-51-CR-0108841-1997

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

MEMORANDUM BY OLSON, J.: FILED MARCH 05, 2018

Appellant, Johnell Haines, appeals pro se from an order entered on 

October 11, 2016 that dismissed his petition under the Post-Conviction Relief 

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

On October 4, 1995, Appellant, along with another individual, robbed 

and fatally shot Benjamin Milla during a home invasion. Appellant was 18 

years old at the time of the offense. After a jury found him guilty, the trial 

court, on November 25, 1997, sentenced him to mandatory life 

imprisonment for first-degree murder, together with consecutive terms of 

incarceration for the related burglary and criminal conspiracy charges. This 

Court affirmed Appellant’s judgment of sentence on February 27, 2001 and 

our Supreme Court denied allocator on August 30, 2001. Commonwealth 

v. Haines, 776 A.2d 1006 (Pa. Super. 2001), allocator denied, 784 A.2d 115 

(Pa. 2001).
J-S83026-17

- 2 -

Appellant filed a timely pro se PCRA petition on June 19, 2002. The 

court appointed counsel, who subsequently filed a no-merit letter and 

request to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 

(Pa. 1988) and Commonwealth v. Finley, 50 A.2d 213 (Pa. Super. 1988) 

(en banc). On April 29, 2003, the PCRA court issued an order that dismissed

the petition and permitted counsel to withdraw. This Court affirmed the 

order dismissing Appellant’s first PCRA petition on April 15, 2004. 

Commonwealth v. Haines, 852 A.2d 1247 (Pa. Super. 2004) (unpublished 

memorandum). In June 2004, Appellant initiated a federal habeas corpus

petition, which was ultimately dismissed without a hearing. Thereafter, the 

PCRA court dismissed Appellant’s second petition as untimely on July 16, 

2008. This Court affirmed that dismissal order on February 22, 2010. 

Commonwealth v. Haines, 996 A.2d 7 (Pa. Super. 2010) (unpublished 

memorandum).

Appellant filed the instant pro se petition, his third, on August 8, 2012. 

An amended petition was filed on March 10, 2016. On May 18, 2016, the 

PCRA court issued notice of its intent to dismiss the petition pursuant to 

Pa.R.Crim.P. 907. Appellant responded to the Rule 907 notice on June 7, 
J-S83026-17

- 3 -

2016. The PCRA court dismissed the petition as untimely on October 11, 

2016. Appellant filed a timely notice of appeal on November 3, 2016.1

Appellant raises the following claims in his brief:

Whether the PCRA [c]ourt erred by determining that the 

imposition of an illegal mandatory life-without-parole sentence –

for a homicide offense committed by Appellant, who has been 

identified by [the United States Supreme Court in Miller v. 

Alabama, 132 S.Ct. 2455 (2012)] as a defined class of 

developing adolescen[ts], did not violate the Eighth 

Amendment’s [p]rohibition [against] cruel and unusual 

punishment[?]

Whether [Miller’s] constitutional requirement to consider 

age-related factors prior to imposing life-without-parole sentence 

applies to Appellant[?]

Appellant’s Brief at 3.

We initially address Appellant’s second issue since that question 

relates directly to whether the PCRA court possessed jurisdiction to entertain

the instant petition.

The timeliness of a post-conviction petition is jurisdictional. 

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 is final unless the petition alleges and the 

petitioner proves one of the three exceptions to the time 

limitations for filing the petition set forth in Section 9545(b)(1) 

of the statute. See 42 Pa.C.S.[A.] § 9545(b). A PCRA petition 

invoking one of these statutory exceptions must “be filed within 

60 days of the date the claims could have been presented.” See 

____________________________________________

1

It does not appear that the PCRA court ordered Appellant to file a concise 

statement of matters complained of on appeal under Pa.R.A.P. 1925(b). 

Nonetheless, the court issued an opinion on January 26, 2017.
J-S83026-17

- 4 -

Hernandez, 79 A.3d at 651–52; see also 42 Pa.C.S.[A.]

§ 9545(b)(2). Asserted exceptions to the time restrictions for 

the PCRA must be included 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). This Court's standard of 

review regarding an order dismissing a petition under the PCRA 

is “to determine whether the determination of the PCRA court is 

supported by the evidence of record and is free of legal error.” 

Commonwealth v. Barndt, 74 A.3d 185, 191–92 (Pa. Super.

2013) (citations omitted).

Commonwealth v. Furgess, 149 A.3d 90, 92-93 (Pa. Super. 2016)

(footnotes omitted).

Appellant does not contest the PCRA court’s conclusion that his third 

petition was patently untimely. Here, the court determined that Appellant’s 

judgment of sentence became final in late 2001, 90 days after the 

Pennsylvania Supreme Court denied allocator and the time for filing a 

petition for a writ of certiorari in the United States Supreme Court expired. 

See 42 Pa.C.S.A. § 9545(b)(3). Accordingly, Appellant filed his present 

petition approximately ten years outside the statutory time limit.

Appellant, however, asserts an exception to the time bar under 42 

Pa.C.S.A § 9545(b)(1)(iii), which provides that a petitioner may seek relief 

when there is “a constitutional right that was recognized by the U.S. 

Supreme Court or the Supreme Court of Pennsylvania after the time period 

provided in this section and has been held by that court to apply 
J-S83026-17

- 5 -

retroactively.” Id. Citing Miller2 and Montgomery v. Louisiana, 136 

S.Ct. 718 (2016), which held that Miller applies retroactively to cases on 

state collateral review, Appellant argues that he is entitled to relief because, 

based upon neurologic studies regarding brain development and his own 

mental infirmities, he is in the same position as a juvenile homicide 

defendant. See Appellant’s Brief at 12-18. Appellant also argues that the 

Equal Protection clause of the Fourteenth Amendment compels application of 

Miller since individuals who commit a killing between 18 and 25 years of 

age are entitled to the same treatment under the law as juveniles. See

Appellant’s Brief at 18-22.

This Court has twice rejected nearly identical arguments for purposes 

of invoking the timeliness exception at § 9545(b)(1)(iii). See 

Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013), appeal denied, 

81 A.3d 75 (Pa. 2013) (“petitioners who were older than 18 at the time they 

committed murder are not within the ambit of the Miller decision and 

therefore may not rely on that decision to bring themselves within the 

time-bar exception in Section 9545(b)(1)(iii)”; “contention that a 

newly-recognized constitutional right should be extended to others does not 

____________________________________________

2 Miller held that a sentence of life imprisonment without the possibility of 

parole constitutes cruel and unusual punishment under the Eighth 

Amendment when imposed upon defendants convicted of murder who were 

under the age of 18 at the time of their crimes. Miller, 132 S.Ct. at 2460.
J-S83026-17

- 6 -

render [a] petition [seeking such an expansion of the right] timely pursuant 

to section 9545(b)(1)(iii)[]”) (emphasis in original); Furgess, 149 A.3d at 

94 (same).3

Because Appellant was not a juvenile at the time he committed the 

underlying offenses, he cannot invoke Miller and Montgomery and avail 

himself of the timeliness exception set forth at § 9545(b)(1)(iii).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/5/18

____________________________________________

3

In Furgess, this Court acknowledged that Cintora's additional holding, 

that Miller had not been applied retroactively, was “no longer good law” 

after Montgomery. Furgess, 149 A.3d at 94.