J-S11040-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :       IN THE SUPERIOR COURT OF
                                         :             PENNSYLVANIA
                   Appellee              :
                                         :
             v.                          :
                                         :
MELISA ANN McMANUS,                      :
                                         :
                   Appellant             :           No. 1415 MDA 2014

             Appeal from the PCRA Order entered on July 22, 2014
              in the Court of Common Pleas of Lancaster County,
                Criminal Division, No. CP-36-CR-0002039-1993

BEFORE: PANELLA, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                    FILED FEBRUARY 20, 2015

        Melisa Ann McManus (“McManus”) appeals from the Order dismissing

her Petition for relief pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        In 1994, McManus was convicted of murder of the first degree and

criminal conspiracy after the death of her newborn son.1 McManus was 17

years old at the time of the crime. The trial court sentenced McManus to life

in prison without the possibility of parole on the murder conviction, and a

concurrent 5 to 10 years in prison on the conspiracy conviction.

        This Court affirmed the judgment of sentence, and the Supreme Court

denied allowance of appeal. See Commonwealth v. McManus, 664 A.2d

1057 (Pa. Super. 1995) (unpublished memorandum), appeal denied, 670



1
    See 18 Pa.C.S.A. §§ 2502(a), 903.
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A.2d 141 (Pa. 1995). McManus did not file a Petition for Writ of certiorari

with the United States Supreme Court.

      McManus filed her first PCRA Petition, pro se, in 2010. The PCRA court

appointed McManus counsel, who filed an Amended PCRA Petition. In this

Petition, McManus argued that her sentence was unconstitutional under

Graham v. Florida, 560 U.S. 48 (2010). The PCRA court issued a Notice of

Intent to Dismiss, and dismissed the Petition without a hearing. McManus

filed a timely Notice of Appeal.

      While the appeal was pending, McManus filed a PCRA Petition in 2012,

following the United States Supreme Court’s decision in Miller v. Alabama,

132 S. Ct. 2455 (2012).2       The PCRA court denied the Petition because

McManus’s first Petition was still pending before this Court. McManus filed

an Application for Remand of the 2010 PCRA Petition, which this Court

denied.    Instead, this Court ordered the case listed for en banc review to

determine the retroactivity of Miller.        The Commonwealth filed an

Application for Stay of the appeal from the dismissal of the 2010 PCRA

Petition   pending   the   Supreme   Court   of   Pennsylvania’s   decision   in


2
   In Miller, the Supreme Court held that sentencing schemes which mandate
life in prison without parole for defendants who committed their crimes while
under the age of eighteen violates the Eighth Amendment’s prohibition on
“cruel and unusual punishments.” Miller, 132 S. Ct. at 2460. The Supreme
Court reasoned that, in light of a juvenile’s diminished culpability and
heightened capacity for change, mandatory juvenile sentencing schemes
pose too great a risk of disproportionate punishment, in contravention of the
Eighth Amendment. Id. at 2469.



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Commonwealth        v.   Cunningham,     81   A.3d   1   (Pa.   2013),   on   the

retroactivity of Miller. This Court granted the Application for Stay. In 2013,

the Supreme Court of Pennsylvania held that Miller should not be applied

retroactively to individuals whose judgments of sentence were final prior to

that decision.    Cunningham, 81 A.3d at 11.         As a result, this Court

remanded the 2010 PCRA Petition to the PCRA court and relinquished

jurisdiction.

      In 2014, the Commonwealth filed an Answer to McManus’s PCRA

Petition, and the PCRA court ruled to stay the remanded PCRA action

pending a ruling by the United States Supreme Court on whether to grant

certiorari in Cunningham.      On June 9, 2014, the United States Supreme

Court denied certiorari.   See Cunningham v. Pennsylvania, 134 S. Ct.

2724 (2014).     The PCRA court subsequently dismissed the PCRA Petition.

McManus filed a timely Notice of Appeal and Pennsylvania Rule of Appellate

Procedure 1925(b) Concise Statement of Matters Complained of on Appeal.

      On appeal, McManus raises the following question for our review:

“Does Miller [] apply on collateral review to juveniles serving life sentences

for homicide by creating a newly recognized [c]onstitutional [r]ight and an

exception to the one year filing requirement under [] 42 Pa.C.S.A.

[§] 9545(b)(1)(iii)[?]” Brief for Appellant at 2.

            We review an order dismissing a petition under the PCRA
      in the light most favorable to the prevailing party at the PCRA
      level. This review is limited to the findings of the PCRA court
      and the evidence of record. We will not disturb a PCRA court’s


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      ruling if it is supported by evidence of record and is free of legal
      error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      McManus claims that the PCRA court erred in dismissing her Petition,

and that Miller should apply retroactively. Brief for Appellant at 5.

      Initially, under the PCRA, any PCRA petition “including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). A judgment

of sentence becomes final “at the conclusion of direct review, including

discretionary review in the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review.” Id. § 9545(b)(3). The PCRA’s

timeliness requirements are jurisdictional in nature and a court may not

address the merits of the issues raised if the PCRA petition was not timely

filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

      Here, McManus’s Petition is facially untimely under the PCRA. See 42

Pa.C.S.A. § 9545(b).

      However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of three exceptions set forth

under 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any PCRA petition invoking one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.




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      Here, McManus invokes the newly recognized constitutional right

exception at 42 Pa.C.S.A. § 9545(b)(1)(iii).        McManus asserts that her

sentence   was    unconstitutional   under   Miller’s   prohibition   against   life

sentences without the possibility of parole for juveniles. Brief for Appellant

at 5; see also Miller, 132 S. Ct. at 2460.          McManus argues that the

Cunningham decision should not be applied because it creates disparate

sentences for juveniles who committed substantially the same crimes,

depending on the date on which they committed the crime.                 Brief for

Appellant at 6.

      However, in order to invoke the exception, the deciding court must

apply the right retroactively. Although the United States Supreme Court did

not address the retroactive application of Miller in its holding, the

Pennsylvania Supreme Court ruled that Miller does not apply retroactively

to juveniles in Pennsylvania whose judgments of sentence were final at the

time Miller was decided.        Cunningham, 81 A.3d at 11; see also

Commonwealth v. Seskey, 86 A.3d 237, 243 (Pa. Super. 2014) (holding

that this Court is confined by the Cunningham decision).3             Accordingly,

McManus has failed to plead and prove the exception provided in 42

Pa.C.S.A. § 9545(b)(1)(iii) to overcome the untimeliness of her Petition.


3
 The United States Supreme Court granted certiorari in Toca v. Louisiana,
135 S. Ct. 781 (Dec. 12, 2014), to determine the retroactivity of Miller.
However, the Supreme Court subsequently dismissed certiorari under United
States Supreme Court Rule 46.1. See Toca v. Louisiana, 2015 U.S. LEXIS
909 (Feb. 3, 2015).


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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/20/2015




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