J-S32018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROLAND D. SCANDLE, JR.                     :
                                               :
                       Appellant               :   No. 1253 MDA 2017

                    Appeal from the PCRA Order July 11, 2017
      In the Court of Common Pleas of Lebanon County Criminal Division at
                               No(s): 1975-10540


BEFORE:      PANELLA, J., NICHOLS, J., and PLATT, J.*

MEMORANDUM BY NICHOLS, J.:                                FILED JUNE 13, 2018

        Appellant Roland D. Scandle, Jr. appeals pro se from the order

dismissing as untimely his petition filed under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant, who was nineteen years old

when he committed the underlying offenses, claims that he properly raised

the newly-recognized constitutional right exception under 42 Pa.C.S. §

9545(b)(1)(iii) based on Miller v. Alabama, 132 S. Ct. 2455 (2012), and

Montgomery v. Louisiana, 136 S. Ct. 718 (2016). We affirm.

        The relevant procedural history of this case is as follows. On November

17, 1975, a jury convicted Appellant of three counts of first-degree murder

and one count of conspiracy. On December 20, 1976, the trial court sentenced

Appellant to life imprisonment without the possibility of parole. On June 22,
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*   Retired Senior Judge assigned to the Superior Court.
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1979, the Pennsylvania Supreme Court affirmed Appellant’s judgment of

sentence. See Commonwealth v. Scandle, 401 A.2d 1332 (Pa. 1979).

     Appellant filed the instant PCRA petition on August 17, 2012. In his

petition, he argued that his sentence was unconstitutional because it barred

consideration of mitigating factors, such as his youth.       See PCRA Pet.,

8/17/12, at 3. In support his argument he relied on Miller. See id. at 8a.

On that same date, the PCRA court filed a notice of its intent to dismiss the

petition. Appellant did not file a response the court’s notice of intent. No

further action was taken until March 21, 2016.

     On March 21, 2016, Appellant filed another PCRA petition raising the

same arguments as in his 2012 petition and further claiming that his sentence

violated his rights under the Eighth and Fourteenth Amendments. See PCRA

Pet., 3/21/16, at 3. The PCRA court treated this petition as an amendment to

Appellant’s 2012 PCRA petition. On March 28, 2016, the PCRA court filed its

notice of intent to dismiss. On April 20, 2016, Appellant filed a response to

the notice in which he claimed that: (1) although he was nineteen years old

at the time of the offense, the holding in Miller and Montgomery should

apply to his case because his brain was not fully developed; (2) his sentence

violated the Eighth and Fourteenth Amendments; and (3) the court should

appoint counsel and grant Appellant an evidentiary hearing.

     On June 10, 2016, the PCRA court entered an order appointing counsel

for Appellant. On December 9, 2016, appointed counsel filed a petition to

withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),

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and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc),

which the PCRA court granted.         On July 11, 2017, the court dismissed

Appellant’s PCRA petition without a hearing. Appellant filed a timely notice of

appeal. The PCRA court did not order a Rule 1925(b) statement. On October

6, 2017, the PCRA court filed a Rule 1925(a) opinion, explaining that Appellant

did not meet the timeliness exception in section 9545(b)(1)(iii) because Miller

and Montgomery were inapplicable given that Appellant was nineteen at the

time he committed the offenses.      PCRA Ct. Op., 10/6/17, at 4-7. The court

further explained that similar arguments to those made by Appellant were

addressed and rejected in Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.

Super. 2016). PCRA Ct. Op., 10/6/17, at 4-7. Appellant filed a timely notice

of appeal.

      Appellant raises the following issues on appeal, which we have reordered

as follows:

      1. Whether Appellant’s sentence of life without parole violated his
         rights under the Eighth and Fourteenth Amendments to the
         United States Constitution[.]

      2. Whether the PCRA court improperly dismissed the petition for
         post-conviction relief without providing Appellant with
         advanced notice of it’s [sic] intent to dismiss the petition
         without a hearing[.]

Appellant’s Brief at 2 (full capitalization omitted).

      Appellant admits that he was nineteen at the time of the crime.

Appellant’s Brief at 10. However, he argues that the holding in Miller should

apply to him because his “brain was not fully developed, he lacked the level


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of moral culpability that characterizes the most serious adult conduct and that

the distinctive attributes of his youth diminish the penological justification for

a sentence of life without parole.” Id. at 14. Appellant cites to several studies

in support of his contention that the brain is not fully developed until the age

of twenty-five. Id. at 11-14. Appellant further argues that not applying the

holding in Miller to his case is a violation of the Eighth and Fourteenth

Amendments. Id. at 14-18. Finally, Appellant argues that the PCRA court

improperly dismissed his claims without giving him notice pursuant to

Pa.R.Crim.P. 907 and without granting him a hearing. Id. at 6-7.

      Our standard of review from the dismissal of a PCRA petition “is limited

to examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted).

      It is well settled that “the timeliness of a PCRA petition is a jurisdictional

requisite.” Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015)

(citation omitted). A 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. § 9545(b)(1). A judgment is 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. § 9545(b)(3).

      Courts may consider a PCRA petition filed more than one year after a



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judgment of sentence became final only if the petitioner pleads and proves

one of the following three statutory exceptions:

       (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. § 9545(b)(1)(i)-(iii).1

       It is well settled that in order to establish an exception to the PCRA time

bar under section 9545(b)(1)(iii), the petitioner must establish: (1) “the right

asserted is a constitutional right that was recognized by the Supreme Court

of the United States or [the Supreme Court of Pennsylvania;]” and (2) “the

right has been held by that court to apply retroactively.” Commonwealth v.

Leggett, 16 A.3d 1144, 1147 (Pa. Super. 2011) (citation omitted).               The

asserted right must be recognized at the time the petition was filed. Id.

       There is no dispute here that Appellant’s conviction became final in

1979, and that Appellant’s current PCRA petition is facially untimely. Because


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1Moreover, to invoke one of these exceptions, a petitioner must also file the
petition within sixty days of the date the claim could have been presented.
See 42 Pa.C.S. § 9545(b)(2).



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Appellant failed to file the instant PCRA petition within one year after his

judgment of sentence became final, he must satisfy one of the exceptions to

the PCRA time bar.2

       Here, Appellant was nineteen years old at the time he committed the

murders for which he was convicted.              We have held that prohibition of

mandatory life-without-parole sentences under Miller does not establish a

newly-recognized constitutional right for petitioners who were eighteen years

or older at the time of the offense. See Furgess, 149 A.3d at 94 (reaffirming

Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super. 2013), and stating

that petitioners who were eighteen or older “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”).

       Similarly, Appellant’s argument that his brain was not fully developed at

the time of his crimes has been previously rejected by this Court for the

purposes     of   establishing    a   PCRA     time-bar   exception   under   section

9545(b)(1)(iii). See Furgess, 149 A.3d at 94 (citing Cintora, 69 A.3d at 764

for the proposition that a “contention that a newly-recognized constitutional


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2 We acknowledge that Appellant previously filed a petition for collateral relief
under the former Post Conviction Hearing Act on April 1, 1980, which Appellant
subsequently withdrew. We further note that the PCRA amendments took
effect in 1995 and contained a grace proviso that would have extended the
time for filing a first PCRA petition until January 16, 1997.                See
Commonwealth v. Lesko, 15 A.3d 345, 361 (Pa. 2011). However, because
Appellant filed the instant petition in 2012, he is not entitled to the proviso’s
benefit.

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right should be extended to others does not render [a] petition . . . timely

pursuant to section 9545(b)(1)(iii)”).

      As for Appellant’s argument that the PCRA court did not give him notice

of its intent to dismiss his petition, this claim is belied by the record. Appellant

filed the instant petition on August 17, 2012. The PCRA court filed a notice of

intent to dismiss the petition that same day.       Appellant then filed another

PCRA petition on March 21, 2016, which the PCRA court treated as an

amended PCRA petition. On March 28, 2016, the court again gave Appellant

notice of its intent to dismiss. In fact, Appellant filed a response to the court’s

notice on April 20, 2016. Therefore, we find no merit to Appellant’s claim.

      Appellant’s claim that the PCRA court erred in not granting him a hearing

is also meritless. This Court has held that “[a] petitioner is not entitled to a

PCRA hearing as a matter of right.” Commonwealth v. Smith, 121 A.3d

1049, 1052 (Pa. Super. 2015) (citation omitted). “It is within the PCRA court’s

discretion to decline to hold a hearing.” Commonwealth v. Turetsky, 925

A.2d 876, 882 (Pa. Super. 2007) (citation omitted). “[T]he PCRA court can

decline to hold a hearing if there is no genuine issue concerning any material

fact and the petitioner is not entitled to post-conviction collateral relief, and

no purpose would be served by any further proceedings.” Smith, 121 A.3d

at 1052 (citation omitted); see Pa.R.Crim.P. 907(2) & cmt. On appeal, we

“examine each of the issues raised in the PCRA petition in light of the record

in order to determine whether the PCRA court erred in concluding that there




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were no genuine issues of material fact and in denying relief without an

evidentiary hearing.” Smith, 121 A.3d at 1052 (citation omitted).

      As stated above, the PCRA court held that Miller and Montgomery

were inapplicable to Appellant’s case and, thus, he did not meet the section

9545(b)(1)(iii) timeliness exception to the PCRA time bar. Because we agree

with the court’s holding, Appellant’s claim did not warrant a hearing under

Pa.R.Crim.P. 907. See Pa.R.Crim.P. 907; Smith, 121 A.3d at 1052.

      Accordingly, because Appellant was nineteen years old at the time of

the offenses, Miller does not apply, and Appellant has failed to satisfy the

newly-recognized constitutional right exception to the PCRA time bar. See

Furgess, 149 A.3d at 94. Further, we find no error in the court’s decision to

not grant a hearing.      See Pa.R.Crim.P. 907; Smith, 121 A.3d at 1052.

Therefore, the PCRA court did not err in dismissing the petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/13/2018




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