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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                      :
                                            :
DAVID JONATHAN FREEMAN,                     :
                                            :
                          Appellant         :     No. 1852 EDA 2014

                   Appeal from the PCRA Order May 23, 2014
                In the Court of Common Pleas of Lehigh County
               Criminal Division No(s).: CP-39-CR-0001078-1995


BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED FEBRUARY 25, 2015

        Appellant, David Jonathan Freeman, takes this counseled appeal from

the order entered in the Lehigh County Court of Common Pleas dismissing

his first Post Conviction Relief Act1 (“PCRA”) petition as untimely. Appellant,

who was sixteen years old at the time of the underlying incident, maintains

Miller v. Alabama, 132 S. Ct. 2455 (2012), held that a mandatory life

without parole sentence violates the Eighth Amendment prohibition on cruel

and unusual punishment. We affirm.

        On December 15, 1995, Appellant pleaded guilty to murder in the first



*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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degree. He admitted to bludgeoning his father to death with an aluminum

baseball bat, while Appellant’s seventeen-year old brother fatally stabbed

their mother. The brothers’ eleven-year old brother was also fatally struck

with a pickaxe handle as he lay in bed.      The brothers’ eighteen year old

cousin was convicted as an accomplice in the father’s murder, and “no one

was convicted of” the murder of the youngest brother.          PCRA Ct. Op.,

8/28/14, at 2.

      Immediately after accepting Appellant’s plea, the trial court imposed

the mandatory sentence of life imprisonment without parole. Appellant did

not file a post-sentence motion or take an appeal.

      Fourteen years later, on July 7, 2010, Appellant filed the instant pro se

first PCRA petition. The PCRA court appointed present counsel, Charles A.

Banta, Esq., to represent him. Counsel filed an amended PCRA petition on

August 14th, citing the Eight Amendment and Miller in support.2             On

September 2nd, the PCRA court stayed the petition pending a decision by

our Supreme Court in Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013).

On January 24, 2014, Appellant filed a petition for habeas corpus, invoking

the PCRA’s “new constitutional right” timeliness exception at Subsection

(b)(1)(iii).

      On April 1, 2014, the PCRA court lifted the stay and issued notice

2
  Counsel initially filed a petition to withdraw from representation pursuant
to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
The PCRA court denied it the following day.



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under Pa.R.Crim.P. 907 of its intent to dismiss Appellant’s petition as

untimely.   The court cited the holding in Commonwealth v. Seskey, 86

A.3d 237 (Pa. Super. 2014), appeal denied, 101 A.3d 103 (Pa. 2014), that a

defendant may not rely on Miller to establish jurisdiction over an untimely

PCRA petition. Appellant did not file a response and instead took this timely

appeal.

      On appeal, Appellant’s sole claim is that the court erred in dismissing

his PCRA petition as untimely. He does not refer to Seskey, but maintains

the Eighth Amendment prohibits cruel and unusual punishment, and that

Miller declared that a mandatory sentence of life without parole for a

juvenile offender is cruel and unusual punishment. Appellant also cites the

dissenting opinion in Commonwealth v. Cunningham, 81 A.3d 1 (Pa.

2013), cert. denied, 134 S.Ct. 2724 (2014), “that the rule in Miller was

substantive, and therefore should be given retroactive effect.”    Appellant’s

Brief at 11 (citing Cunningham, 81 A.3d at 18 (Baer, J., dissenting)). We

find no relief is due.

      “[I]f a PCRA petition is untimely, neither this Court nor the trial court

has jurisdiction over the petition.   Without jurisdiction, we simply do not

have the legal authority to address the substantive claims.”      Seskey, 86

A.3d at 241 (citation omitted). Subsection 9545(b)(1) of the PCRA requires

a petition to be filed within one year of the date the judgment becomes final.

42 Pa.C.S. § 9545(b)(1). The exception at Subsection 9545(b)(1)(iii) allows



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a petition after the filing period when the petitioner asserts a constitutional

right that was recognized by the United States Supreme Court or

Pennsylvania Supreme Court and was held to apply retroactively. 42 Pa.C.S.

§ 9545(b)(1)(iii). Finally, we note that in Seskey, this Court held,

            Recently, in Cunningham, our Supreme Court held
         that the constitutional right announced by the United
         States Supreme Court in Miller does not apply
         retroactively. Consequently, [the petitioner] cannot rely
         upon Miller or subsection 9545(b)[(1)](iii) to establish
         jurisdiction over his untimely PCRA petition in any
         Pennsylvania court.

Seskey, 86 A.3d at 243 (citation omitted).

      In the case sub judice, it is not disputed that Appellant’s petition was

filed beyond the general one-year filing period.3         See 42 Pa.C.S. §

9545(b)(1).    Pursuant to Seskey, we agree with the PCRA court that

Appellant cannot rely on Miller to invoke the timeliness exception at

Subsection 9545(b)(1)(iii). Accordingly, the PCRA court properly dismissed

his petition as untimely.

      Order affirmed.




3
 As stated above, Appellant was sentenced on December 15, 1995 and did
not take a direct appeal. “The amended PCRA provided a one-year grace
period . . . to first-time PCRA petitioners whose judgments of sentence
became final prior to the effective date[, January 16, 1996,] of the amended
Act.” Commonwealth v. Robinson, 12 A.3d 477, 479 n.3 (Pa. Super.
2011). Appellant thus generally had until January 16, 1997, to file a first
PCRA petition. The instant petition was filed on July 7, 2010.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/25/2015




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