J-S62013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    BRIAN CHARLES

                             Appellant                  No. 33 MDA 2017


            Appeal from the PCRA Order entered November 29, 2016
                 In the Court of Common Pleas of Dauphin County
     Criminal Division at Nos: CP-22-CR-0000456-1995; CP-22-CR-0003728-
           1994; CP-22-CR-0003279-1994; CP-22-CR-0003727-1994


BEFORE: STABILE, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                         FILED DECEMBER 06, 2017

        Appellant, Brian Charles, appeals from the November 29, 2016 order

entered in the Court of Common Pleas of Dauphin County, dismissing his

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

42 Pa.C.S.A. §§ 9541-9546.            Appellant argues the PCRA court erred in

dismissing the instant PCRA petition. We disagree. Accordingly, we affirm.

        The underlying facts of this matter are not in dispute.1 A previous panel

of this Court adequately summarized the procedural history as follows.



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* Retired Senior Judge assigned to the Superior Court.

1It also undisputed that Appellant was a “youth,” i.e., 21 years old at the time
he committed the underlying crimes. See Appellant’s Brief at 9.
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       On April 13, 1995, following a jury trial, [A]ppellant was found
       guilty of first degree murder, two counts of robbery, one count of
       robbery of a motor vehicle, one count of possession of prohibited
       offensive weapons, and four counts of criminal conspiracy. On
       May 19, 1995, [A]ppellant was sentenced to life imprisonment
       followed by a consecutive term of five to ten years’ imprisonment.
       After a timely appeal was filed, this [C]ourt vacated [A]ppellant’s
       judgment of sentence on May 8, 1996, and remanded the case for
       an evidentiary hearing on [A]ppellant’s ineffectiveness claims.
       Evidentiary hearings took place on June 28, 1996. The trial court
       held that [A]ppellant’s ineffectiveness claims were without merit
       and reinstated the judgment of sentence on September 19, 1996.
       On March 5, 1998, still on direct appeal, this [Court] affirmed the
       trial court’s decision denying [A]ppellant relief. Our [S]upreme
       [C]ourt denied allocatur on August 12, 1998. Appellant did not
       seek review with the United States Supreme Court.

Commonwealth v. Charles, No. 1863 MDA 2003, unpublished memorandum

at 1-2 (Pa. Super. filed October 7, 2004) (citations omitted).

       Appellant filed the instant PCRA petition on March 29, 2016, which he

amended on September 7, 2016. The PCRA court dismissed the amended

petition on November 29, 2016. This appeal followed.

       Appellant argues that his mandatory life-without-parole sentence for

homicide, which he committed while he was a youth, is unconstitutional, under

Miller v. Alabama, 132 S.Ct. 2455 (2012)2 and Montgomery v. Louisiana,




____________________________________________


2 Miller 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).




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136 S.Ct. 718 (2016).3 PCRA Petition, 9/12/16, at 3-4; Appellant’s Brief at 5.

We disagree.

         “[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 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


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3 In Montgomery, the Unites States Supreme Court held that Miller was a
new substantive rule that, under the United States Constitution, must be
retroactively applied in cases on state collateral review. Montgomery, 136
S.Ct. at 736.

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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)).

        We must first determine whether the instant petition is timely. As noted

above, Appellant filed the instant petition in 2016, approximately 17 years

after his judgment of sentence became final.4 As such, the instant petition is

facially untimely. To overcome the untimeliness of the petition, a petitioner

must allege and prove one of the exceptions to the one-year time bar, codified

at 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). These exceptions include governmental

interference, newly-discovered facts, and after-recognized constitutional

rights.    Here, Appellant argues he meets the requirements of the after-

recognized     constitutional     right   exception,   codified   in   42   Pa.C.S.A.

§ 9545(b)(1)(iii).5 Specifically, Appellant argues that he is entitled to review

based on Miller, as interpreted by Montgomery.


____________________________________________


4 Appellant’s judgment of sentence became final on November 12, 1998,
ninety days after our Supreme Court denied allowance of appeal on August
12, 1998. See Commonwealth v. Charles, 1863 MDA 2003, unpublished
memorandum at 3 (Pa. Super. filed October 7, 2004) (citing 42 Pa.C.S.A.
§ 9545(b)(3); U.S. Supreme Court Rule 13).

5   Section 9545(b)(1)(iii) provides as follows:




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       Even if Montgomery would make his petition timely, Appellant is not

entitled to relief under Miller. We have repeatedly held that Miller does not

apply to defendants who were eighteen or older when they committed murder.

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

As noted above, Appellant was 21 years old at the time of the underlying

crimes. Accordingly, Appellant has no claim under Miller. Because Appellant

has no claim under Miller, Montgomery does not affect the instant matter.

       Appellant also argues that he is due relief because equal protection

requires that adults are entitled to same protection as juveniles. We disagree.

Appellant is not similarly situated to the juvenile offenders at issue in Miller.

Indeed, the crux of Miller’s holding is that children and adults are

“constitutionally different . . . for purposes of sentencing.” Miller, 132 S.Ct.

at 2464. In light of his age at the time he committed the underlying crimes,

Appellant is not similarly situated to the juvenile offenders at issue in Miller.



____________________________________________


       (1)    Any petition under this subchapter, including a second or
              subsequent petition, shall be filed within one year of the
              date the judgment becomes final, unless the petition alleges
              and the petitioner proves that:
                    ...

                    (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.A. § 9545(b)(1)(iii).

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The claim, therefore, is meritless. See City of Cleburne v. Cleburne Living

Ctr., 473 U.S. 432, 439 (1985) (explaining that the Equal Protection Clause

of the Fourteenth Amendment “is essentially a direction that all persons

similarly situated should be treated alike.”).

      In his reply brief, Appellant now emphasizes his claims are not based on

Miller   or   Montgomery.       Appellant,   however,     fails   to   explain   how

characterizing his Equal Protection claim or an Eighth Amendment claim as

independent from Miller and Montgomery would make those claims timely

for purposes of the PCRA. Simply because Appellant alleges a constitutional

violation, it does not mean that the alleged violation can be raised at any time.

Indeed, even claims of constitutional dimension must be raised timely. See

Commonwealth v. Turner, 80 A.3d 754, 767 (Pa. 2013) (“we have already

held that, in the context of the jurisdictional timeliness restrictions on the right

to bring a PCRA petition, the constitutional nature of a collateral claim does

not overcome the legislature’s restrictions on collateral review”) (internal

citation omitted). Here, Appellant failed to raise the claim in a timely manner.

Indeed, the issue has been raised in his reply brief for the first time. Even if

we were to deem the issue raised for the first time in the instant PCRA petition,

it would be nonetheless untimely.

      In light of the foregoing, we conclude the PCRA court properly dismissed

the instant petition as untimely. Accordingly, Appellant is entitled to no relief.

      Order affirmed.


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J-S62013-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/6/2017




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