J-S03020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JONOTHAN EDWARD PRATHER

                            Appellant                 No. 734 WDA 2016


               Appeal from the PCRA Order dated April 19, 2016
                 In the Court of Common Pleas of Potter County
              Criminal Division at No(s): CP-53-CR-0000004-2012


BEFORE: OLSON, J., SOLANO, J., and STRASSBURGER, J.*

JUDGMENT ORDER BY SOLANO, J.:                         FILED APRIL 13, 2017

        Appellant, Jonothan Edward Prather, appeals pro se from the order

dismissing his second petition filed pursuant to the Post Conviction Relief

Act. 42 Pa.C.S. §§ 9541-46. We affirm.

        On February 22, 2012, Appellant pleaded guilty to one count of first-

degree murder for the June 2011 shooting death of Samuel Miller.1

Appellant, who was born on September 3, 1991, was 19 years old at the

time of the murder. On March 26, 2012, the trial court sentenced Appellant

to life imprisonment without the possibility of parole. Appellant did not file a

direct appeal.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 Appellant shot Mr. Miller sometime between the late evening of June 4 and
early morning of June 5, 2011. Complaint, 6/13/11.
J-S03020-17



       On June 25, 2014, Appellant filed a pro se PCRA petition in which he

cited Miller v. Alabama, 132 S. Ct. 2455 (2012), and claimed to have an

“immature brain.”2       PCRA Petition, 6/25/14, at 1-3.           The Commonwealth

filed an answer and motion for dismissal on July 1, 2014.                The trial court

appointed counsel to represent Appellant on July 3, 2014, and scheduled a

pre-hearing conference. The conference was postponed three times at the

request    of   Appellant’s    attorney,       and   once   at   the   request   of   the

Commonwealth. It appears from the record that the pre-hearing conference

occurred on February 5, 2015.3 On February 11, 2015, the court issued a

Rule 907 notice of its intention to dismiss the petition without a hearing,

stating that it did not have jurisdiction because the petition was untimely

and Appellant’s claim under Miller v. Alabama was “inapplicable.”                     The

court dismissed the petition on March 3, 2015.                   The order specifically

advised Appellant that “he has an absolute right to appeal this decision . . .

within thirty (30) days from today’s date, today being March 3, 2015.”

Appellant did not file an appeal. Approximately one year later, on March 24,

____________________________________________


2
  Miller v. Alabama held that sentences of mandatory life imprisonment
without parole imposed upon juveniles who were under the age of 18 at the
time they committed murder were unconstitutional. Appellant contends that
although his chronological age was 19 years, his brain at the time of his
crime was still immature, so that he should be treated as though he was a
juvenile.
3
  The docket entries indicate that on December 4, 2015, the conference was
scheduled for February 5, 2015.



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J-S03020-17



2016, Appellant filed the pro se PCRA petition before us, again seeking relief

under Miller v. Alabama. The PCRA court issued notice of its intention to

dismiss the petition pursuant to Rule 907 on March 28, 2016, and reiterated

the inapplicability of Miller v. Alabama. It dismissed the petition on April

19, 2016. Appellant filed this timely appeal.

       In his brief, Appellant raises three issues:

       1. Since the Appellant was an adolescent at the time of the
          alleged murder, the automatic mandatory life sentence
          without the possibility of parole that he was given without a
          mitigating hearing, is unconstitutional and void ab initio, and
          is subjecting the Appellant to cruel and unusual punishment
          and violative of the Equal Protection Clause.

       2. Not applying the decisions in Miller v. Alabama and
          Montgomery v. Louisiana to the Appellant violates the
          Appellant’s equal protection rights.

       3. Sentencing the Appellant to an automatic mandatory life
          sentence without the possibility of parole, without a
          mitigating hearing that takes into account the Appellant’s age
          and other contributing factors violates the Appellant’s due
          process rights.

Appellant’s Brief at 7 (excess capitalization removed).4



____________________________________________


4
   Appellant has filed a supplemental brief in which he argues that trial
counsel was “ineffective for coercing a guilty plea based on threats of the
death penalty.” Appellant’s Supplemental Brief at 4. This issue is waived
because Appellant failed to raise it in his petition, let alone explain how it
falls within the PCRA’s time restrictions. See Commonwealth v. Furgess,
149 A.3d 90, 93 (Pa. Super. 2016) (asserted exceptions to the time
restrictions for a PCRA petition must be included in the petition and may not
be raised for the first time on appeal).



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J-S03020-17



      Appellant is due no relief, for two reasons. First, the trial court lacked

jurisdiction to consider his petition because it was untimely.     Generally, a

PCRA petition must be filed no later than one year after the underlying

judgment becomes final. 42 Pa.C.S. § 9545(b)(1). Appellant’s proceedings

ended in 2012, but he did not file his petition until 2016, and no exception to

the PCRA’s filing deadline applies here.

      Second, Appellant’s three issues encompass his single claim that he is

entitled to relief under Miller v. Alabama, which is duplicative of the claim

he raised in his PCRA petition filed on June 25, 2014. Although Appellant

concedes he was 19 years old at the time of the murder, he avers that his

concession that he was older than the age required to invoke Miller is “of no

merit” under the Fourteenth Amendment because “a child’s biological

process is not typically complete until he or she reaches his or her mid-

twenties.”   Appellant’s Brief at 11.      We agree with the PCRA court that

Appellant’s argument lacks merit because Miller does not apply to

individuals who were 18 or older at the time they committed murder. See

Furgess, 149 A.3d at 90 (holding that Miller did not apply to a 19-year-old

appellant convicted of homicide where appellant claimed he was a “technical

juvenile” and referenced immature brain development to support his claim).

      Accordingly, we affirm the order denying Appellant’s second PCRA

petition.

      Order affirmed.




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J-S03020-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2017




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