J-S53011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellee              :
                                          :
              v.                          :
                                          :
 RONALD G. WEAVER                         :
                                          :
                    Appellant             :      No. 2600 EDA 2017


                 Appeal from the PCRA Order July 12, 2017
            in the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: CP-51-CR-1111253-1976


BEFORE:    GANTMAN, P.J., OTT, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                        FILED NOVEMBER 08, 2018

      Appellant, Ronald G. Weaver, appeals pro se from the order dismissing

his second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

      We take the following factual and procedural history from the PCRA

court’s September 14, 2017 opinion and our independent review of the

certified record. On March 20, 1980, a jury convicted Appellant of murder of

the first degree and related charges. The charges related to Appellant’s role

in the robbery and stabbing death of the victim on October 24, 1976. On

November 18, 1980, the trial court sentenced Appellant to a mandatory term

of life imprisonment without parole.    This Court affirmed the judgment of

sentence on May 14, 1982. (See Commonwealth v. Weaver, 446 A.2d 684

(Pa. Super. 1982) (unpublished memorandum)).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       Appellant filed a counseled first PCRA petition on June 29, 1988, which

the court dismissed on March 19, 1990. This Court affirmed the dismissal on

May 8, 1991, and the Pennsylvania Supreme Court denied further review on

October 11, 1991. (See Commonwealth v. Weaver, 595 A.2d 195 (Pa.

Super. 1991) (unpublished memorandum), appeal denied, 600 A.2d 195 (Pa.

1991)).

       On August 20, 2012, Appellant filed his second PCRA petition pro se. He

also submitted a supplemental filing on December 20, 2016.         On May 25,

2017, the PCRA court served notice of its intent to dismiss the petition without

a hearing. See Pa.R.Crim.P. 907(1). Appellant filed a response to the court’s

notice on June 15, 2017. The court dismissed Appellant’s petition as untimely

on July 12, 2017. Appellant timely appealed.1

       Appellant raises two questions for our review:

       I.   Did [the trial court] have proper [j]urisdiction to try
       [Appellant] . . . in first instant (sic)?

       II.   Is Miller v. Alabama[, 567 U.S. 460 (2012),] ruling
       applicable to [Appellant], who was a juvenile according to
       Pennsylvania statutory law?

(Appellant’s Brief, at 3).

            Our standard of review of an order denying PCRA relief is
       whether the record supports the PCRA court’s determination, and
       whether the PCRA court’s determination is free of legal error. The


____________________________________________


1The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal. The court filed an opinion on September 14, 2017.
See Pa.R.A.P. 1925.

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      PCRA court’s findings will not be disturbed unless there is no
      support for the findings in the certified record.

Commonwealth v. Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citations

omitted).

             Before we can address the merits of the issue[] raised, we
      must determine whether Appellant has established that his PCRA
      petition was timely filed, as the time-bar is jurisdictional. [See]
      42 Pa.C.S.[A.] § 9545(b). A PCRA petition, including a second or
      subsequent petition, shall be filed within one year of the date the
      underlying judgment becomes final. 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.[A.] § 9545(b)(3).

Commonwealth v. Graves, ___ A.3d ___, 2018 WL 4998262, at *3 (Pa.

Super. filed Oct. 16, 2018) (case citations and quotation marks omitted).

      Here, Appellant’s judgment of sentence became final on June 13, 1982,

when his time to file a petition for allowance of appeal with our Supreme Court

expired.    See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a).        Therefore,

Appellant had until June 14, 1983, to file a timely PCRA petition.     See 42

Pa.C.S.A. § 9545(b)(1). Because Appellant filed the instant petition on August

20, 2012, it is untimely on its face, and the PCRA court lacked jurisdiction to

review it unless he pleaded and proved one of the statutory exceptions to the

time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      Any petition invoking an exception must “be filed within [sixty] days of

the date the claim could have been presented.” Id. at § 9545(b)(2). “If the

[PCRA] petition is determined to be untimely, and no exception has been pled


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and proven, the petition must be dismissed without a hearing because

Pennsylvania courts are without jurisdiction to consider the merits of the

petition.” Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa. Super. 2011),

appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted).

       Here, Appellant claims the benefit of the newly recognized and

retroactively applied constitutional right exception at 42 Pa.C.S.A. §

9545(b)(1)(iii).2 Specifically, he argues that, although he was over eighteen

at the time of the crime, his life sentence is unconstitutional pursuant to Miller

and Montgomery v. Louisiana, 136 S. Ct. 718 (2016).3 (See Appellant’s

Brief, at 7-13). We disagree.

       This Court has expressly “[held] that petitioners who were older than

[eighteen] at the time they committed murder are not within the ambit of the

Miller decision and therefore may not rely on that decision to bring

themselves within the time-bar exception in Section 9545(b)(1)(iii).”


____________________________________________


2 The exception at subsection (iii) requires a petitioner to plead and prove
that: “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.A. § 9545(b)(1)(iii).

3 In Miller, the United States Supreme Court held that it is unconstitutional
for states to sentence juvenile homicide defendants to mandatory sentences
of life imprisonment without the possibility of parole. See Miller, supra at
465. In Montgomery, the United States Supreme Court determined that its
Miller holding constituted a new substantive rule of constitutional law that
must be applied retroactively to cases on collateral review.             See
Montgomery, supra at 736.


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

citation omitted). Therefore, Appellant’s argument predicated on Miller and

Montgomery fails. See id.

       Moreover, we are not legally persuaded by Appellant’s argument that

the   language     of   the   Pennsylvania     Juvenile   Act   renders   Miller    and

Montgomery applicable to him.             (See Appellant’s Brief, at 8, 12).       Even

assuming arguendo that the Act somehow affected Miller and this Court’s

precedent applying it, which it does not, Appellant’s prior act of delinquency,

allegedly committed when he was fifteen years of age, 4 does not render the

murder he committed after his eighteenth birthday a juvenile offense. (See

Appellant’s Brief, at 7-12); 42 Pa.C.S.A. § 6302 (defining “child” as individual

who (1) is under the age of 18 years; [or] (2) is under the age of 21 years

who committed an act of delinquency before reaching the age of 18 years[.]”);

In re J.M., 42 A.3d 348, 353 n.4 (Pa. Super. 2012) (“The ‘act of delinquency’

referenced in [section 6302] must refer to an act that occurred prior to the

person’s 18th birthday. Otherwise, the ‘act’ would not have led to delinquency

proceedings, but to criminal charges as an adult.”).

       Accordingly, because Appellant has failed to plead and prove an

exception to the timeliness requirements of the PCRA, the court properly


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4 In his supplemental PCRA petition, Appellant “claim[ed] in a sworn affidavit
that he was adjudicated delinquent at fifteen (15) years of age.” (Supplement
to PCRA Petition, 12/20/16, at unnumbered page 5; see also Appellant’s
Brief, at 9).

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dismissed his petition as untimely.   See Brown, supra at 420; Jackson,

supra at 519.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/8/18




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