J-S19020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                             Appellee

                        v.

RUSSELL L. VANCE

                             Appellant              No. 2086 EDA 2014


                   Appeal from the PCRA Order June 24, 2014
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0216811-1985


BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J:                            FILED APRIL 21, 2015

        Russell L. Vance (“Appellant”) appeals from the order dismissing his

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. After careful review, we affirm.

        We summarize the relevant factual and procedural history of this

matter as follows. On February 3, 1986, Appellant entered an open guilty

plea to murder, generally,1 and possessing instruments of crime2 after

shooting his landlord nine times in an apparent rental payment dispute.

Following a degree-of-guilt hearing, Appellant was convicted of first-degree

murder and sentenced to a mandatory sentence of life imprisonment without
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1
    18 Pa.C.S. § 2502.
2
    18 Pa.C.S. § 907.
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the possibility of parole.         This Court affirmed Appellant’s judgment of

sentence on August 1, 1988, and our Supreme Court denied allowance of

appeal on March 15, 1989.            Thereafter, Appellant filed seven (7) PCRA

petitions, none of which afforded him relief.

       Appellant filed the instant PCRA petition, his eighth, on August 1,

2012. The petition alleged that Appellant was entitled to relief based on the

Supreme Court of the United States’ decision in Miller v. Alabama.3 The

PCRA court issued a Rule 907 notice of intent to dismiss the petition without

a hearing on March 26, 2014, to which Appellant filed a response on April 1,

2014. On June 24, 2014, the PCRA court dismissed the petition as untimely.

Appellant timely appealed on July 7, 2014. The PCRA court filed its opinion

pursuant to Pa.R.A.P. 1925(a) on September 2, 2014.4

       Appellant raises the following issue for our review:

       A – WILL THE COMMONWEALTH OF PENNSYLVANIA BE IN
       VIOLATION OF BOTH: – ITS OWN CONSTITUTIONAL-
       GUARANTEES OF: *“EQUAL-PROTECTION AND DUE-PROCESS OF
       THE LAW,” AND ALSO THE U.S. CONSTITUTION’S: “1ST;-5TH;
       8TH; AND 14TH AMENDMENTS,” BY, *“RESENTENCING,
       JUVENILE-LIFERS WHO WERE ON, *“COLLATERAL-REVIEW,” TO
       A, *“MINIMUM, NUMBER OF YEARS, OF A LIFE-SENTENCE,”
       WITHOUT ALSO, INCLUDING, AN *“ADULT-LIFER,” IN THIS,
       “SENTENCING-SCHEME,” WHO WAS FOUND BY THE TRIAL-
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3
  Miller v. Alabama, __ U.S. __, 132 S. Ct. 2455, 183 L. Ed. 2d 407
(2012).
4
  The PCRA court did not order Appellant to file a statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant did
not file one.



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      COURT TO BE: *“GUILTY, BUT MENTALLY-ILL,” AND IS ALSO,
      ON, *“COLLATERAL-REVIEW?”

Appellant’s Brief, p. 6 (verbatim).

      In reviewing an order denying PCRA relief, our well-settled standard of

review is “to determine whether the determination of the PCRA court is

supported by the evidence of record and is free of legal error. The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record.” Commonwealth v. Barndt, 74 A.3d 185,

191-192 (Pa.Super.2013) (internal quotations and citations omitted).

      “It is undisputed that a PCRA petition must be filed within one year of

the date that the judgment of sentence becomes final.” Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa.Super.2013) (citing 42 Pa.C.S. §

9545(b)(1)).    “This time requirement is mandatory and jurisdictional in

nature, and the court may not ignore it in order to reach the merits of a

petition.”    Id. (citing Commonwealth v. Murray, 753 A.2d 201, 203

(Pa.2000)).    A judgment of sentence “becomes final at the conclusion of

direct review, including discretionary review in the Supreme Court of the

United States and the Supreme Court of Pennsylvania, or at the expiration of

time for seeking the review.” 42 Pa.C.S. § 9545(b)(3). However, a facially

untimely petition may be received where one of the PCRA’s three limited

exceptions to the time for filing the petition is met. Hernandez, 79 A.3d at

651 (footnote omitted). These exceptions include:

      (i) the failure to raise the claim previously was the result of
      interference by government officials with the presentation of the

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     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).        As our Supreme Court has repeatedly

stated, the petitioner maintains the burden of pleading and proving that one

of these exceptions applies.        Commonwealth v. Abu-Jamal, 941 A.2d

1263, 1268 (Pa.2008), cert. denied, 555 U.S. 916 (2008). Further,

     [a] petition invoking one of these exceptions must be filed within
     sixty days of the date the claim could first have been presented.
     42 Pa.C.S.[] § 9545(b)(2). In order to be entitled to the
     exceptions to the PCRA’s one-year filing deadline, the petitioner
     must plead and prove specific facts that demonstrate his claim
     was raised within the sixty-day time frame under section
     9545(b)(2).

Hernandez, 79 A.3d at 651-652 (internal quotations omitted).

     Initially, we note that Appellant filed the instant petition during the

pendency of his seventh PCRA petition.              This Court did not affirm the

dismissal   of   his    seventh   PCRA   petition   until   April   4,   2013.   See

Commonwealth v. Vance, 1968 EDA 2012, April 4, 2013 (unpublished

memorandum).           Technically, therefore, the petition was a nullity.       See

Commonwealth v. Lark, 746 A.2d 585, 588 (Pa.2000) (“when an

appellant’s PCRA appeal is pending before a court, a subsequent PCRA


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petition cannot be filed until the resolution of review of the pending PCRA

petition by the highest state court in which review is sought, or upon the

expiration of the time for seeking such review”).            Appellant should have

awaited this Court’s determination of the appeal of his seventh PCRA petition

on April 4, 2013, and then filed the instant petition within 60 days thereof.

See Lark, 746 A.2d 588 (“[a] subsequent petition must also be filed within

sixty days of the date of the order which finally resolves the previous PCRA

petition, because this is the first date the claim could have been

presented”); see also 42 Pa.C.S. § 9545(b)(2).                However, the record

reveals that (1) Appellant attempted to comply with 42 Pa.C.S. §

9545(b)(2), and (2) the PCRA court did not begin its review of the instant

petition until after this Court’s April 4, 2013 decision in the appeal of the

previous petition.5 Thus, in lieu of quashing the matter, and in the interest

of judicial economy, we will overlook the petition’s procedural deficiency and

proceed to determine the appeal of the PCRA court’s dismissal of the

petition.

        Appellant’s sentence became final on May 15, 1989.              Accordingly,

Appellant had until May 15, 1990 to timely file a PCRA petition. Appellant

filed the instant petition on August 1, 2012, over 22 years after the

expiration of his PCRA time limitation.          Accordingly, Appellant’s petition is


____________________________________________


5
    See Trial Court Opinion, p. 2 n.2; Commonwealth’s Brief, p. 5 n.1.



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facially untimely. Thus, he must plead and prove that his petition falls under

one of the Section 9545 exceptions set forth in the PCRA. See 42 Pa.C.S. §

9545(b)(1)(i)-(iii).

       To overcome the PCRA’s time bar, Appellant argues that the Supreme

Court of the United States’ decision in Miller v. Alabama6 entitles him to a

timeliness exception pursuant to § 9545(b)(1)(iii).7         However, Miller is

wholly inapplicable to Appellant. Miller applies to juveniles sentenced to life

imprisonment without the possibility of parole.          Appellant was 39,8 and

therefore not a minor, when he committed his crime. Accordingly, the PCRA

court did not err in denying his petition as untimely.

       Order affirmed.




____________________________________________


6
   In Miller, the Supreme Court of the United States determined that
sentences of mandatory life imprisonment without the possibility of parole
for juveniles convicted of homicide contravene the Constitution’s prohibition
against cruel and unusual punishment. Miller, 132 S.Ct. at 2475.
7
 We note that Appellant filed the instant petition within 60 days of Miller.
See 42 Pa.C.S. § 9545(b)(2).
8
 Appellant’s date of birth is July 3, 1945. The murder occurred on February
3, 1985.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/21/2015




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