J-S07037-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
            v.                            :
                                          :
WAYNE CURTIS KELLY,                       :
                                          :
                   Appellant              :           No. 1480 MDA 2016

                Appeal from the PCRA Order August 18, 2016
               in the Court of Common Pleas of Berks County,
              Criminal Division, No(s): CP-06-CR-0005141-2001

BEFORE: BOWES, LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED APRIL 13, 2017

      Wayne Curtis Kelly (“Kelly”), pro se, appeals from the Order dismissing

his second Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      In 2003, a jury convicted Kelly of murder of the second degree,

criminal conspiracy, possessing an instrument of crime and robbery, for his

participation in an armed robbery at a convenience store that resulted in the

death of the store clerk. Relevant to the instant appeal, Kelly was twenty-

three years of age at the time of the crime. The trial court sentenced Kelly,

in relevant part, to life in prison for the murder conviction, applying the

mandatory life sentence found in 18 Pa.C.S.A. § 1102(b).

      This Court affirmed the judgment of sentence, after which the

Supreme    Court   of   Pennsylvania   denied   allowance   of   appeal.   See
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Commonwealth v. Kelly, 850 A.2d 10 (Pa. Super. 2004) (unpublished

memorandum), appeal denied, 863 A.2d 1144 (Pa. 2004).

     Kelly filed his first PCRA Petition in August 2010, which the PCRA court

dismissed as being untimely filed. This Court affirmed the dismissal.    See

Commonwealth v. Kelly, 100 A.3d 323 (Pa. Super. 2014) (unpublished

memorandum). Kelly did not seek allowance of appeal.

     On March 28, 2016, Kelly filed the instant pro se PCRA Petition. The

PCRA court thereafter issued a Pennsylvania Rule of Criminal Procedure 907

Notice of Intent to Dismiss the Petition without an evidentiary hearing,

stating that the court lacked jurisdiction to address the Petition because it

was untimely filed. Kelly filed a pro se Response to the Rule 907 Notice. On

August 18, 2016, the PCRA court dismissed Kelly’s Petition, after which Kelly

filed a timely pro se Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b)

Concise Statement of errors complained of on appeal.

     On appeal, Kelly presents the following questions for our review:

     I. Did the [PCRA] court err in denying [Kelly’s] equal protection
     claim since [Kelly] was an adolescent[,] age 2[3,] at the time of
     the crime[,] and whether the automatic mandatory life
     sentence[,] imposed [upon Kelly] without a mitigating hearing[,]
     unconstitutionally subjects [Kelly] to cruel and unusual
     punishment[,] in violation of the Eighth Amendment to the
     United States Constitution?

     II. Did the [PCRA] court err in dismissing [Kelly’s] claims of
     entitlement to equal protection from prohibition against cruel
     and unusual punishment[,] in light of a [United States] Supreme
     Court substantive holding, as being time-barred for failure to
     meet the statutory requirements of [the exception at] 42
     Pa.C.S.A. § 9545(b)(1)(iii), [and] (2)?


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Brief for Appellant at 3 (issues numbered, capitalization omitted).   As Kelly’s

issues are related, we will address them simultaneously.

      When reviewing an order dismissing a PCRA petition, we examine

whether the determination of the PCRA court is supported by the record and

free of legal error.   Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.

Super. 2014). The merits of a PCRA petition cannot be addressed unless the

PCRA court has jurisdiction. Commonwealth v. Albrecht, 994 A.2d 1091,

1093 (Pa. 2010). Jurisdiction does not exist if the PCRA petition is untimely

filed. Id.

      Any PCRA petition must be filed within one year of the date the

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). Here, Kelly concedes

that his instant PCRA is facially untimely, as it was filed over ten years after

January 2005, when his judgment of sentence became final.

      However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of three exceptions set forth

under 42 Pa.C.S.A. § 9545(b)(1)(i)(iii). Any PCRA petition invoking one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.

      Here, Kelly cites the United States Supreme Court’s decision in Miller

v. Alabama, 132 S. Ct. 2455 (2012), and invokes the newly-recognized

constitutional right exception at 42 Pa.C.S.A. § 9545(b)(1)(iii).      Brief for

Appellant at 6-9.   In Miller, the Court held that sentencing schemes that


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mandate life in prison without parole for defendants who committed their

crimes while under the age of eighteen violate the Eighth Amendment’s

prohibition on “cruel and unusual punishments.” Miller, 132 S. Ct. at 2460.

The Court reasoned that in light of a juvenile’s diminished culpability and

heightened capacity for change, mandatory juvenile sentencing schemes

pose too great a risk of disproportionate punishment, in contravention of the

Eighth Amendment. Id. at 2469.1

     Nevertheless, Kelly argues that the right espoused in Miller should

apply to him (and the lack of its application violates his right to equal

protection) because “neuroscience[-]based evidence in the Miller decision …

applies to ages ranging at least through 25-29.” Brief for Appellant at 13;

see also id. at 5 (citing a 2012 article in the Wall Street Journal, which

purportedly stated that “[t]he brain, once thought to be fully grown after

puberty, is still evolving into its adult shape well into a person’s third

decade[.]”).

     This Court has already rejected this precise argument. Specifically, in

Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013), the co-

appellants, who were 19 and 21 years old, respectively, at the time of their

crimes (for which they received sentences of life in prison), argued that

Miller applied to them because the human brain does not fully develop until


1
 In Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the United States
Supreme Court held that its decision in Miller applies retroactively. Id. at
736.


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the age of 25, and because “it would be a violation of equal protection for

the courts to treat [the co-appellants,] or anyone else with immature brains,

as adults.” Id. at 764. This Court rejected these claims, emphasizing that

the co-appellants’ “contention that a newly-recognized constitutional right

should be extended to others does not render their petition timely pursuant

to   section   9545(b)(1)(iii).”   Id.   (emphasis   in   original);   see   also

Commonwealth v. Furgess, 149              A.3d 90, 94      (Pa. Super. 2016)

(reaffirming Cintora’s holding).

      Accordingly, based on Cintora and Furgess, the rule announced in

Miller does not apply to Kelly, who was twenty-three years old at the time

of the murder.2    Accordingly, Kelly has failed to establish the exception of

section 9545(b)(1)(iii) to overcome the untimeliness of his second PCRA

Petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/13/2017



2
  Moreover, Kelly failed to file his Petition invoking Miller within 60 days of
June 25, 2012, the date of that decision. See 42 Pa.C.S.A. § 9545(b)(2);
Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007) (stating
that the 60-day period begins to run upon the date of the underlying judicial
decision).


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