Com. v. Kinard, A. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANDRE KINARD :
:
Appellant : No. 2739 EDA 2017
Appeal from the PCRA Order July 24, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0722283-1990
BEFORE: PANELLA, J., PLATT*, J., and STRASSBURGER*, J.
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 09, 2018
Appellant, Andre Kinard, appeals pro se from the order dismissing his
third petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.
We take the following relevant facts and procedural history from the
PCRA court’s October 8, 2017 opinion and our independent review of the
certified record. On February 20, 1992, a jury convicted Appellant of second-
degree murder, criminal conspiracy, and two counts of robbery. The charges
stem from Appellant’s participation in a March 17, 1990 armed robbery of two
men outside of a shoe store in Philadelphia. Appellant was eighteen years old
at the time of the offense. On October 5, 1993, the trial court sentenced
Appellant to a mandatory term of life without parole on the second-degree
murder conviction, and a consecutive, aggregate term of not less than twenty-
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* Retired Senior Judge assigned to the Superior Court.
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five nor more than fifty years’ incarceration on the remaining charges. This
Court affirmed the judgment of sentence on July 11, 1995, and our Supreme
Court denied further review on December 18, 1995. (See Commonwealth
v. Kinard, 667 A.2d 420 (Pa. Super. 1995) (unpublished memorandum),
appeal denied, 668 A.2d 1126 (Pa. 1995)). Appellant thereafter
unsuccessfully litigated two PCRA petitions.
Appellant filed the instant pro se PCRA petition on June 21, 2010,
challenging the validity of his life without parole sentence. After issuing Rule
907 notice, and considering Appellant’s response thereto, the PCRA court
entered its order dismissing the petition on July 24, 2017. This timely appeal
followed.1
On appeal, Appellant argues that his life without the possibility of parole
sentence is unconstitutional, and argues for an extension of the precepts set
forth in Miller v. Alabama, 567 U.S. 460 (2012)2 to individuals such as he,
who were eighteen years old at the time of their offense. (See Appellant’s
Brief, at 2, 5-12).
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1The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal. It filed an opinion on October 8, 2017. See
Pa.R.A.P. 1925.
2 In Miller, the United States Supreme Court held that it is unconstitutional
for states to sentence juvenile homicide defendants to mandatory sentences
of life imprisonment without the possibility of parole. See Miller, supra at
465. In Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Court
determined that its Miller holding constituted a new substantive rule of
constitutional law that must be applied retroactively to cases on collateral
review. See Montgomery, supra at 736.
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Preliminarily, we note, “[o]ur standard of review of the denial of a PCRA
petition is limited to examining whether the record evidence supports the
court’s determination and whether the court’s decision is free of legal error.”
Commonwealth v. Shiloh, 170 A.3d 553, 556 (Pa. Super. 2017) (citation
omitted). “The timeliness of a PCRA petition is a jurisdictional requisite.” Id.
at 557 (citation omitted).
A petitioner must file any PCRA petition, including a second or
subsequent petition, within one year of the date the underlying judgment
becomes final. See 42 Pa.C.S.A. § 9545(b)(1). The exceptions to the PCRA
time-bar allow for three very limited circumstances under which the late filing
of a petition will be excused. See id.3; see also Shiloh, supra at 557. “If
the [PCRA] petition is determined to be untimely, and no exception has been
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3 The exceptions to the timeliness requirement are:
(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.A. § 9545(b)(1)(i)-(iii).
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pled and proven, the petition must be dismissed without a hearing because
Pennsylvania courts are without jurisdiction to consider the merits of the
petition.” Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa. Super. 2011),
appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted).
Instantly, Appellant’s judgment of sentence became final on March 18,
1996, when his time to file a petition for a writ of certiorari with the United
States Supreme Court expired.4 See U.S. Sup.Ct. R. 13; 42 Pa.C.S.A. §
9545(b)(3). Therefore, Appellant had until March 18, 1997, to file a timely
PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). Because Appellant filed the
instant petition on June 21, 2010, it is untimely on its face, and the PCRA
court lacked jurisdiction to review it unless he pleaded and proved one of the
statutory exceptions to the time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
As previously noted, Appellant argues that his life sentence is
unconstitutional pursuant to Miller, thereby invoking the newly recognized
and retroactively applied constitutional right exception at 42 Pa.C.S.A. §
9545(b)(1)(iii). (See Appellant’s Brief, at 12). While Appellant concedes that
he was eighteen years old at the time of his offense, he reasons that he
possessed the characteristics of youth, rendering him less culpable under
Miller. (See id. at 5, 7, 11-12).
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4 March 17, 1996 was a Sunday.
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“The Miller decision applies to only those defendants who were ‘under
the age of 18 at the time of their crimes.’” Commonwealth v. Furgess, 149
A.3d 90, 94 (Pa. Super. 2016) (quoting Miller, supra at 465).
This Court has determined that a petitioner who was not a
juvenile at the time of his crime may not invoke Miller and
Montgomery to establish an exception to the PCRA’s time-bar.
In Furgess, this Court . . . held that petitioners who were older
than eighteen at the time they committed murder are not within
the ambit of the Miller decision and, therefore, may not rely on
that case to satisfy the time-bar exception set forth in Section
9545(b)(1)(iii). See Furgess, at 94. In Commonwealth v.
Woods, 179 A.3d 37, 44 (Pa. Super. 2017) this Court further
found Miller to be inapplicable where the appellant was eighteen
years, thirty-six days old when he committed murder. See also
Commonwealth v. Rodriguez, 174 A.3d 1130 (Pa. Super. 2017)
(“Appellant acknowledges that he was eighteen years old at the
time he committed the murder; however, he argues,
nevertheless, that he may invoke Miller because his immature
and/or impulsive brain made him similar to a juvenile. Thus,
Appellant seeks an extension of Miller to persons convicted of
murder who were older at the time of their crimes than the class
of defendants subject to the Miller holding. However, this Court
previously has rejected such an argument.”) (citation omitted).
Commonwealth v. Pew, 189 A.3d 486, 490–91 (Pa. Super. 2018) (one case
citation omitted; case citation formatting provided).
Therefore, Appellant, as an adult offender, falls outside the ambit of
Miller, and his arguments predicated on an extension of that decision fail.
Accordingly, we conclude that Appellant has failed to establish that his
untimely petition fits within one of the three exceptions to the PCRA’s time-
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bar. Accordingly, the PCRA court properly dismissed the petition without a
hearing. See Jackson, supra at 519.5
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/18
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5 We note for the sake of completeness that Appellant’s assertion that he is
entitled to the appointment of counsel for litigation of this third petition is
incorrect. (See Appellant’s Brief, at 2, 9). PCRA petitioners are automatically
entitled to appointed counsel only on the first petition, or where an evidentiary
hearing is necessary; this right does not extend to subsequent petitions like
the one before us where an evidentiary hearing is not required. See
Pa.R.Crim.P. 904(C),(D); see also Commonwealth v. Jackson, 965 A.2d
280, 283 (Pa. Super. 2009).
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