Com. v. Tucker, H.

J-S10027-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
HASSAN TUCKER
Appellant No. 1227 EDA 2018
Appeal from the PCRA Order Entered March 16, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0406051-2005
BEFORE: GANTMAN, P.J.E., STABILE, and COLINS,* JJ.
JUDGMENT ORDER BY STABILE, J.: FILED MAY 09, 2019
Appellant, Hassan Tucker, appeals from the order dismissing his petition
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46.
We affirm.
On April 6, 2006, the trial court sentenced Appellant to life in prison
without parole for a conviction of first-degree murder (18 Pa.C.S.A.
§ 2502(a)). This Court affirmed the judgment of sentence on February 8,
2008, and our Supreme Court denied allowance of appeal on July 17, 2008.
The PCRA court dismissed Appellant’s timely first PCRA petition on March
12, 2010. A second petition was dismissed on May 13, 2011. On March 25,
2016, Appellant filed the instant petition, his third. He alleges that he is
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* Retired Senior Judge assigned to the Superior Court.
J-S10027-19
entitled to relief under Miller v. Alabama, 567 U.S. 460 (2012) (mandatory
sentence of life in prison without parole is unconstitutional as applied to an
offender under eighteen years old), and Montgomery v. Louisiana, 136 S.
Ct. 718 (2016) (Miller applies retroactively to cases pending on direct
appeal).
Appellant acknowledges that his petition is facially untimely because he
filed it more than one year after his judgment of sentence became final. See
42 Pa.C.S.A. § 9545(b)(1). He alleges, however, that his petition is timely
because it asserts a newly recognized constitutional right recognized by the
United States Supreme Court, and because he filed his petition within 60 days
of the Supreme Court’s decision in Montgomery.
We disagree. Appellant was twenty years old at the time of his offense,
and therefore he cannot assert the right recognized in Miller. The substance
of his argument—that the Supreme Court’s rationale in Miller should extend
to persons who were twenty years old at the time of the offense—does not
assert a newly recognized constitutional right. In fact, in Commonwealth v.
Lee, ___ A.3d ___, 2019 WL 986978 (Pa. Super. March 1, 2019) (en banc),
this Court held that persons who are eighteen years old or older at the time
of their offense cannot invoke Miller to avoid the PCRA’s jurisdictional time
limit. Based on the foregoing, we affirm the order dismissing Appellant’s
petition as untimely.
Order affirmed.
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J-S10027-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/19
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