J-S44012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 TYRONE JAMES                             :
                                          :
                      Appellant           :   No. 2165 EDA 2017

                 Appeal from the PCRA Order June 16, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0303891-2002


BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                           FILED MARCH 08, 2019

      Tyrone James appeals from the order, entered in the Court of Common

Pleas of Philadelphia County, dismissing his petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.        Upon careful

review, we affirm.

      On March 25, 2003, James was convicted of first-degree murder and

related offenses.    On May 22, 2003, the trial court sentenced James to a

mandatory term of life imprisonment for first-degree murder, plus a

consecutive term of 10½ to 25 years on the remaining counts. James’s post-

sentence motions were denied and this Court affirmed his judgment of

sentence on September 15, 2004. See Commonwealth v. James, 863 A.2d

1225 (Pa. Super. 2004) (Table).     Our Supreme Court denied allowance of

appeal on February 23, 2005. See Commonwealth v. James, 870 A.2d 320

(Pa. 2005) (Table).
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       James filed a timely first pro se PCRA petition on January 17, 2006.

Counsel was appointed and filed a Turner/Finley1 “no-merit” letter.           The

PCRA court granted counsel’s request to withdraw and dismissed James’s

petition on October 6, 2006; James’s appeal was dismissed by this Court for

failure to file a brief. James filed the instant pro se petition, his second, on

March 23, 2016. The PCRA court issued a notice of intent to dismiss pursuant

to Pa.R.Crim.P. 907 on May 4, 2017. James filed a response and, on June 16,

2017, the court formally dismissed his petition. This timely appeal follows.

       We begin by noting:

       This Court’s standard of review regarding an order dismissing a
       petition under the PCRA is whether the determination of the PCRA
       court is supported by evidence of record and is free of legal error.
       In evaluating a PCRA court’s decision, our scope of review is
       limited to the findings of the PCRA court and the evidence of
       record, viewed in the light most favorable to the prevailing party
       at the trial level.

Commonwealth v. Weatherill, 24 A.3d 435, 438 (Pa. Super. 2011).

       A PCRA petition, including a second or subsequent petition, must be filed

within one year of the date the underlying judgment of sentence becomes

final. See 42 Pa.C.S.A. § 9545(b)(1); see also Commonwealth v. Bretz,

830 A.2d 1273, 1275 (Pa. Super. 2003). A judgment is deemed 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


____________________________________________


1Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

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expiration of time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3); see also

Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super. 2006).

        Here, James’s judgment of sentence became final on or about May 24,

2005, upon the expiration of the ninety-day deadline for filing a petition for

writ of certiorari with the United State Supreme Court. See 42 Pa.C.S.A. §

9545(b)(3); Sup.Ct.R. 13. Thus, James had one year from that date, or until

May 24, 2006, to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b).

James did not file the instant petition, his second, until March 23, 2016, nearly

eleven years after his judgment of sentence became final. Accordingly, the

PCRA court had no jurisdiction to entertain James’s petition unless he pleaded

and proved one of the three statutory exceptions to the time bar. 2 See 42

Pa.C.S.A. § 9545(b)(1). A petition invoking one of the exceptions must be


____________________________________________


2   The statutory exceptions to the time bar are as follows:

        (i) the failure to raise the claim previously was the result of
        interference by government officials with the presentation of the
        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.A. § 9545(b)(1)(i)-(iii).


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filed within 60 days of the date the claim could have been presented. 42

Pa.C.S.A. § 9545(b)(2).

       James attempts to circumvent the time bar by asserting the “newly

recognized constitutional right” exception under subsection 9545(b)(1)(iii).

Specifically, James asserts that he is entitled to relief pursuant to

Montgomery v. Louisiana, 136 S.Ct. 718 (2016), and Miller v. Alabama,

567 U.S. 460 (2012). In Miller, the Supreme Court held that sentences of

mandatory life imprisonment without parole for those under the age of 18 at

the time of their crimes violate the Eighth Amendment’s prohibition on cruel

and unusual punishment.           In Montgomery, the Court held that Miller

announced a new substantive constitutional rule that applied retroactively on

state collateral review.

       Although James concedes he was over the age of 18 at the time he

committed his crime, he claims that Miller should apply to him on equal

protection,    Eighth     Amendment        and   state   proportionality   grounds.3

Specifically, James alleges that developments in psychology and brain science

have demonstrated that science is unable to draw a bright line between

____________________________________________


3 James bases his claim primarily on Article 1, § 26 and Article 1, § 13 of the
Pennsylvania Constitution, while the new constitutional right announced in
Miller was grounded in the Eighth Amendment to the United States
constitution. However, equal protection under the Pennsylvania Constitution
is coextensive with the Equal Protection Clause in the United States
Constitution and Article 1, § 13 of the Pennsylvania Constitution contains no
broader protection than the Eighth Amendment. See Commonwealth v.
Albert, 758 A.2d 1149 (Pa. 2000); Commonwealth v. Lankford, 164 A.3d
1250, 1253 (Pa. Super. 2017).

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childhood and adulthood and that, “absent chronological age, there is no

scientific difference between an individual aged 17 and one aged 24.” Brief of

Appellant, at 13.   As such, the application of Miller to only those individuals

under the numerical age of 18 is arbitrary and offends the Equal Protection

Clause and Eighth Amendment with respect to an individual over the age of

18 whose “brain has been scientifically proven to be no different than those

afforded relief” under Miller. Brief of Appellant, at 7.

      Because it is undisputed that James committed his crime at the age of

19, on its face, Miller is inapplicable to James’s case. Moreover, we have

repeatedly declined to extend the protections of Miller to those who assert

that, while they were over the age of 18 at the time they committed their

offense, they nevertheless possessed “characteristics of youth” that rendered

them less culpable under Miller’s rationale. See Commonwealth v. Lee,

2019 PA Super 64 (Pa. Super. 2019) (en banc) (holding numerical age sole

factor in determining whether Miller applies and declining to extend Miller’s

categorical holding until United States Supreme Court or Pennsylvania

Supreme Court recognize new constitutional right in non-juvenile offender);

Commonwealth v. Montgomery, 181 A.3d 359 (Pa. Super. 2018) (en banc)

(declining to extend Miller to adults whose brains were not fully developed at

time of offense because “a contention that a newly-recognized constitutional




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right should be extended to others” does not satisfy new-constitutional-rule

exception to PCRA time bar).4

       Because James has not established an exception to the PCRA time bar,

the PCRA court properly dismissed his petition as untimely.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/8/19




____________________________________________


4 While Lee and Montgomery were decided on Eighth Amendment grounds,
James also asserts claims based on equal protection. However, as we noted
in Montgomery,

       Neither the Supreme Court of the United States nor our Supreme
       Court has held that Miller announced a new rule under the Equal
       Protection Clause. Instead, Miller only announced a new rule with
       respect to the Eighth Amendment. Thus, contrary to [petitioner’s]
       assertion, his Equal Protection Clause argument is also an attempt
       to extend Miller's holding.

Montgomery, 181 A.3d at 366.




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