J-S17030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

VINCENT THOMAS

                            Appellant                 No. 2983 EDA 2016


           Appeal from the PCRA Order entered September 9, 2016
             In the Court of Common Pleas of Delaware County
              Criminal Division at No: CP-23-CR-0006925-1981


BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                              FILED JUNE 29, 2017

       Appellant, Vincent Thomas, appeals from the September 9, 2016 order

entered in the Court of Common Pleas of Delaware County, denying his

petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.

       The underlying facts and procedural history of the case are not at

issue here. Briefly, Appellant, who was in his early thirties at the time he

committed the crimes giving rise to the instant matter,1 after being found

guilty by a jury, was sentenced to an aggregate term of imprisonment of 12-

40 years on October 1, 1982. See Commonwealth v. Thomas, 499 A.2d

____________________________________________


1
  The record shows Appellant was born on June 30, 1949, and that he
committed the crimes at issue here on October 22, 1981 and November 15,
1981, when he was over 32 years old.
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501, 503-04 (Pa. Super. 1984). Appellant timely appealed to this Court. On

direct appeal, we affirmed.          Id. at 508.      The Supreme Court denied

Appellant’s   petition   for   allocatur     on   September     18,     1984.       See

Commonwealth        v.   Thomas,       835    EDA    1999   and      836    EDA   1999,

unpublished   memorandum        at    *2   (Pa.   Super.    filed    July   18,   2000).

Subsequently, Appellant “has filed numerous petitions challenging the

judgment of sentence pursuant to the [PCRA].” Appellant’s Brief at 5. More

recently, Appellant filed the instant PCRA petition on March 2016, which the

PCRA court denied on September 9, 2016. PCRA Court Opinion, 10/14/16,

at 3. This appeal followed.

      “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).                           All PCRA

petitions, “including a second or subsequent petition, shall be filed within

one year of the date the judgment becomes final” unless an exception to

timeliness applies.      42 Pa.C.S.A. § 9545(b)(1).                 “The PCRA’s time

restrictions are jurisdictional in nature.          Thus, [i]f a PCRA petition is

untimely, neither this Court nor the [PCRA] court has jurisdiction over the

petition. Without jurisdiction, we simply do not have the legal authority to

address the substantive claims.”        Commonwealth v. Chester, 895 A.2d

520, 522 (Pa. 2006) (first alteration in original) (internal citations and

quotation marks omitted).      As timeliness is separate and distinct from the

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merits of Appellant’s underlying claims, we first determine whether this

PCRA petition is timely filed.        See Commonwealth v. Stokes, 959 A.2d

306, 310      (Pa.   2008)     (consideration      of    Brady    claim   separate    from

consideration of its timeliness).        The timeliness requirements of the PCRA

petition must be met, even if the underlying claim is a challenge to the

legality of the sentence. See Commonwealth v. Holmes, 933 A.2d 57, 60

(Pa. 2007) (“Although legality of sentence is always subject to review within

the PCRA, claims must still first satisfy the PCRA’s time limits or one of the

exceptions thereto”) (citing Commonwealth v. Fahy, 737 A.2d 214, 223

(1999)).

       As noted above, the instant PCRA petition was filed over 30 years after

his judgment of sentence became final.                  As such, the instant petition is

facially untimely.     To overcome the untimeliness of his petition, Appellant

argues that his sentence is illegal under Montgomery v. Louisiana, 136

S.Ct. 718 (2016), and Miller v. Alabama, 132 S.Ct. 2455 (2012),2 and that

Montgomery and Miller qualify as an exception to the timeliness

requirement      under    42    Pa.C.S.A.      §   9545(b)(1)(iii)   (relating   to   new
____________________________________________


2
  In Miller, the U.S. Supreme Court held that “mandatory life without parole
for those under the age of 18 at the time of their crimes violates the Eighth
Amendment’s prohibition on ‘cruel and unusual’ punishments.” Miller, 132
S.Ct. at 2460 (emphasis added). In Montgomery, the U.S. Supreme Court
held that Miller was a new substantive rule that, under the United States
Constitution, must be retroactive in cases on state collateral review.
Montgomery, 136 S.Ct. at 736.




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J-S17030-17



constitutional right recognized by the United States Supreme Court or the

Pennsylvania Supreme Court after the expiration of the standard deadline).

Specifically, according to   Appellant,    Montgomery     announced a new

constitutional rule that is retroactive and applicable to him.   Appellant also

contends that the new constitutional rule announced in Montgomery “is not

applicable to juvenile offender[s] only but to any and all United States

[c]itizen[s] serving an unconstitutional, illegal or unlawfully imposed”

sentence. Appellant’s Brief at 7. We disagree.

      Appellant is not entitled to any relief under Miller/Montgomery. As

properly noted by the PCRA court, “because Appellant is neither serving a

sentence of mandatory life sentence, nor was he a juvenile at the time that

[he committed the crimes],” PCRA Court Opinion, 10/14/16 at 5, Miller does

not apply. See Miller, 132 S.Ct. at 2460. Because Appellant has no claim

under Miller, Montgomery does not affect the timeliness of his petition.

We, therefore, conclude, the PCRA court properly denied the instant petition

as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2017


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