J-S78045-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                  Appellee                :
                                          :
            v.                            :
                                          :
SHAWN A. ROSS,                            :
                                          :
                  Appellant               :          No. 1712 MDA 2013

          Appeal from the PCRA Order entered on August 28, 2013
              in the Court of Common Pleas of Berks County,
              Criminal Division, No. CP-06-CR-0004498-1997

BEFORE: GANTMAN, P.J., JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED JANUARY 26, 2015

      Shawn A. Ross (“Ross”), pro se, appeals from the Order dismissing his

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

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

      Following a conviction for first-degree murder and related offenses,

Ross was sentenced to life in prison plus nine and one-half to nineteen years

in prison. This Court affirmed the judgment of sentence on November 17,

1999, and the Supreme Court of Pennsylvania denied allowance of appeal on

May 25, 2000. See Commonwealth v. Ross, 748 A.2d 1254 (Pa. Super.

1999) (unpublished memorandum), appeal denied, 758 A.2d 1198 (Pa.

2000).

      Ross subsequently filed multiple PCRA Petitions.      The PCRA court

dismissed the Petitions, and this Court affirmed the Orders.             See
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Commonwealth v. Ross, 13 A.3d 981 (Pa. Super. 2010) (unpublished

memorandum), appeal denied, 21 A.3d 1193 (Pa. 2011); Commonwealth

v. Ross, 935 A.2d 21 (Pa. Super. 2007) (unpublished memorandum);

Commonwealth v. Ross, 905 A.2d 1048 (Pa. Super. 2006) (unpublished

memorandum); Commonwealth v. Ross, 864 A.2d 583 (Pa. Super. 2004)

(unpublished memorandum).1

     On August 20, 2012, Ross filed the instant PCRA Petition. The PCRA

court filed a Notice of Intention to Dismiss the Petition without a hearing,

and subsequently dismissed the PCRA Petition on August 28, 2013.        Ross

filed a timely Notice of Appeal and a court-ordered Pennsylvania Rule of

Appellate Procedure 1925(b) Concise Statement.

     On appeal, Ross raises the following questions for our review:

     1. Whether the [PCRA] court erred in failing to extend the
        holding in Miller v. Alabama[, 132 S. Ct. 2455 (2012),] to
        [Ross,] who was under the age of twenty-five years old at the
        time of the offense?

     2. By relying upon the recent developments in the area of
        juvenile psychological and physical maturation, does not the
        findings by the United States Supreme Court in Miller v.
        Alabama, constitute after-discovered evidence within the
        meaning of the [PCRA], an exception to the time constraints
        under the [PCRA], 42 Pa.C.S.A. § 9545(b)(1)(iii)?

Brief for Appellant at 4 (numbers added).

           We review an order dismissing a petition under the PCRA
     in the light most favorable to the prevailing party at the PCRA

1
  Ross also filed a Petition for writ of habeas corpus with the United States
District Court for the Eastern District of Pennsylvania, which was denied on
February 4, 2001. See Ross v. Kyler, 2002 WL 188713 (E.D. Pa. 2002).


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      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
      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).

      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 the United States and 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).

      In this case, Ross’s judgment of sentence became final on August 23,

2000, after the ninety-day period to file a writ of certiorari with the Supreme

Court of the United States expired.        See 42 Pa.C.S.A. § 9545(b)(3);

Commonwealth v. Holmes, 905 A.2d 507, 510 (Pa. Super. 2006). Thus,

Ross’s fifth PCRA Petition, filed on August 20, 2012, is patently untimely.

      However, Pennsylvania courts may consider an untimely petition if the

petitioner 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


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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.

     Here, Ross claims that the Supreme Court’s recent decision in Miller

v. Alabama, 132 S. Ct. 2455 (2012), implicates the exception at 42

Pa.C.S.A. § 9545(b)(1)(iii).2   See Brief for Appellant at 7-8, 10, 12.    In

Miller, the Court held that sentencing schemes which mandate life in prison

without parole for defendants, who committed their crimes while under the

age of eighteen, violate the Eighth Amendment’s prohibition on “cruel and

unusual punishments.”    Miller, 132 S. Ct. at 2460.     The 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 2469.3

     Ross avers that the Miller rationale should be extended to include his

sentence of life without the possibility of parole, even though he was twenty-


2
  We note that Ross properly filed his PCRA Petition invoking the third
exception within sixty days of the date the claim could have been presented.
See 42 Pa.C.S.A. § 9545(b)(2).
3
  We note that the Supreme Court of Pennsylvania has determined that the
Miller decision should not be applied retroactively. See Commonwealth v.
Cunningham, 81 A.3d 1 (Pa. 2013). On June 9, 2014, the Supreme Court
of the United States denied the petition for writ of certiorari in
Cunningham. See Cunningham v. Pennsylvania, 134 S. Ct. 2724
(2014). However, on December 12, 2014, the Supreme Court of the United
States, in Toca v. Louisiana, --- S.Ct. ----, 2014 WL 4743531 (2014),
granted a petition for writ of certiorari to determine whether Miller applies
retroactively.


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four years old at the time he committed the murder. Brief for Appellant at

7-10, 13.     Ross relies on the scientific and psychological evidence relied

upon by the Miller Court to justify extending the Miller holding to persons

under the age of twenty-five, who commit crimes that carry a mandatory life

sentence. Id. at 7-10, 11; see also id. at 13 (wherein Ross argues that the

case should be remanded for an evidentiary hearing on the science cited in

Miller).    Ross also argues that his sentence was illegal, as it violated the

Equal Protection Clause of both the Pennsylvania and the United States

Constitutions. Id. at 10-11.

      In Miller, the Supreme Court set forth a bright-line rule holding

mandatory sentences of life without parole unconstitutional for defendants

under the age of eighteen. Miller, 132 S. Ct. at 2460. Because Ross was

twenty-four years old at the time he committed the murder, Miller does not

apply.     See Commonwealth v. Chambers, 35 A.3d 34, 43 (Pa. Super.

2012) (stating that only a precise creation of a constitutional right can afford

relief on a timeliness exception under the PCRA).       Accordingly, Ross has

failed to meet the exception provided in 42 Pa.C.S.A. § 9545(b)(1)(iii) to

overcome the untimeliness of his Petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/26/2015




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