Com. v. Milligan, K. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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
assault2 for 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
218 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 September 22, 2004) (unpublished memorandum)].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 Post-
Conviction 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]
3By 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 re-
sentenced 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
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