J-S49039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                      v.

STEPHEN JAMES RUSSELL

                           Appellant                    No. 111 WDA 2017


                Appeal from the PCRA Order December 12, 2016
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0014840-1994,
                            CP-02-CR-0016481-1994

BEFORE: DUBOW, SOLANO, and FITZGERALD,* J

MEMORANDUM BY FITZGERALD, J.:                         FILED AUGUST 07, 2017

        Appellant, Stephen James Russell, appeals from the order entered in

the Allegheny County Court of Common Pleas dismissing his Post Conviction

Relief Act1 (“PCRA”) petition as untimely. Appellant claims that his petition

was timely filed in light of Montgomery v. Louisiana, 136 S. Ct. 718

(2016), and Miller v. Alabama, 132 S. Ct. 2455 (2012). We affirm.

        We adopt the facts and procedural history set forth by the PCRA

court’s opinion.    See PCRA Ct. Op., 4/3/17, at 1-2.        Appellant raises the

following issues for review:

           I. Is [Appellant’s] PCRA petition timely filed?



*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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         II. Did [Appellant’s] mandatory sentence of life without
         parole, imposed for acts committed at the age of nineteen
         (19), violate the eighth amendment of the United States
         Constitution, as well as the equal protection clause of the
         fourteenth amendment to the U.S. Constitution and article
         1, § 26 of the Pennsylvania constitution?

         III. Did [Appellant’s] sentence violate the eighth
         amendment’s prohibition of mandatory life without parole
         for youthful offenders as Miller and Montgomery prohibit
         the mandatory imposition of life without parole sentences
         upon offenders who possess characteristics of youth that
         render them categorically less culpable under the eighth
         amendment?

         IV. [Did Appellant’s] conviction for second-degree felony
         murder render him categorically less culpable and is he
         therefore entitled to relief under Miller and Montgomery?

         V. Does Pennsylvania law that permits mandatory
         sentences of life without parole for crimes committed by
         19-year olds lack a rational basis in light of Miller’s
         prohibition against such sentences for offenders aged 17
         and younger in violation of the equal protection clauses of
         the Pennsylvania and U.S. Constitution?

         VI. Have the issues raised herein been previously litigated
         nor waived?

         VII. Have the issues raised herein met the Lawson
         standard for a second or subsequent PCRA petition?

Appellant’s Brief at 3.

      Appellant argues that Miller and Montgomery provide him relief from

the PCRA time bar under 42 Pa.C.S. § 9545(b)(1)(iii). He specifically avers

that because he was 19 years old at the time the crimes in question

occurred, “he was experiencing the transitory phases of a developing




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adolescent and lacked the ability to assess consequences as outlined and

discussed in [Miller and Montgomery].” Appellant’s Brief at 10.

     “Our standard of review of a PCRA court’s dismissal of a PCRA petition

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

by the evidence of record and free of legal error.”        Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).

     As our Supreme Court has explained:

           the PCRA timeliness requirements are jurisdictional in
           nature and, accordingly, a PCRA court is precluded from
           considering untimely PCRA petitions. We have also held
           that even where the PCRA court does not address the
           applicability of the PCRA timing mandate, th[e] Court will
           consider the issue sua sponte, as it is a threshold question
           implicating our subject matter jurisdiction and ability to
           grant the requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (citations

omitted).

     After careful consideration of Appellant’s brief, the record, and the

decision of the PCRA court, we affirm on the basis of the PCRA court’s

opinion.    See PCRA Ct. Op. at 2-4 (holding: Appellant’s current PCRA

petition, filed five years after his was judgment of sentence became final in

2003, was patently untimely; Appellant has not proven any of the timeliness

exceptions because Miller and Montgomery do not provide him relief from

the PCRA time bar under 42 Pa.C.S. § 9545(b)(1)(iii) where Appellant was

19 years old at the time of the commission of the crimes at issue; the PCRA

court lacks jurisdiction to address the merits of Appellant’s claims).


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Accordingly, we affirm the PCRA court’s dismissal of Appellant’s petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/7/2017




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