J-S75032-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

TYREE HART,

                         Appellant                   No. 1162 EDA 2014


            Appeal from the PCRA Order entered March 6, 2014,
           in the Court of Common Pleas of Philadelphia County,
           Criminal Division, at No(s): CP-51-CR-0905971-1995


BEFORE: ALLEN, LAZARUS, and MUNDY, JJ.

MEMORANDUM BY ALLEN, J.:                         FILED DECEMBER 01, 2014

      Tyree Hart (“Appellant”) appeals pro se from the order denying his

second petition for post-conviction relief filed pursuant to the Post Conviction

Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-46. We affirm.

      The pertinent facts and procedural history are as follows: On August

2, 1995, Appellant, then eighteen years of age, approached the victim on a

street corner in Philadelphia, shot him to death, and stole his wallet.      On

March 17, 1997, he pled guilty to murder generally, and waived his right to

a jury trial on the charge of robbery.      Thereafter, the trial court held a

degree of guilt hearing for the murder charge and a bench trial for the

robbery charge.    The trial court found Appellant guilty of second-degree

murder and robbery.
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          Prior to sentencing, Appellant filed a pro se motion to withdraw his

guilty plea asserting that he was innocent. Following an evidentiary hearing

on September 19, 1997, the trial court entered an order denying Appellant’s

motion to withdraw his guilty plea. That same day, the trial court sentenced

Appellant to life in prison without the possibility of parole for his murder

conviction.

          Appellant filed a timely appeal to this Court, in which he argued that

the trial court abused its discretion in denying his motion to withdraw his

guilty plea. In an unpublished memorandum filed on January 25, 1999, we

rejected      Appellant’s   claim,   and   affirmed   his   judgment   of   sentence.

Commonwealth v. Hart, 736 A.2d 681 (Pa. Super. 1999). On August 12,

1999, our Supreme Court denied Appellant’s petition for allowance of appeal.

Commownealth v. Hart, 742 A.2d 672 (Pa. 1999). Appellant did not file a

petition for writ of certiorari to the United States Supreme Court.

          On May 2, 2001, Appellant filed a pro se PCRA petition.           The PCRA

court appointed counsel, and PCRA counsel filed a “no-merit” letter and

petition to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927

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

1988) (en banc). By order entered June 24, 2002, the trial court permitted

counsel to withdraw, and dismissed Appellant’s PCRA petition.               Appellant

filed a timely appeal to this Court. In an unpublished memorandum filed on

July 9, 2003, this Court affirmed the PCRA court’s denial of post-conviction

relief.      Commonwealth v. Hart, 832 A.2d 537 (Pa. Super. 2003).

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Appellant did not file a petition for allowance of appeal to our Supreme

Court.

      On August 10, 2012, Appellant filed a second pro se PCRA petition. By

order entered March 6, 2014, the PCRA court dismissed Appellant’s petition

as untimely filed. This appeal followed.

      Our standard of review regarding an order dismissing a petition under

the PCRA is whether the determination of the PCRA court is supported by the

evidence of record and is free of legal error.         Commonwealth v. Halley,

870 A.2d 795, 799 n.2 (Pa. 2005).         The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

Moreover, a PCRA court may decline to hold a hearing on the petition if the

PCRA court determines that the petitioner’s claim is patently frivolous and is

without a trace of support in either the record or from other evidence.

Commonwealth v. Jordan, 772 A.2d 1011 (Pa. Super. 2001).

         The   timeliness   of   a   post-conviction    petition   is   jurisdictional.

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

omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor

the PCRA court has jurisdiction over the petition. Id. “Without jurisdiction,

we simply do not have the legal authority to address the substantive claims”

raised in an untimely petition. Id.




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      Generally, a petition for relief under the PCRA, including a second or

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

becomes final unless the petition alleges, and the petitioner proves, an

exception to the time for filing the petition. Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under

these exceptions, the petitioner must plead and prove that: “(1) there has

been interference by government officials in the presentation of the claim; or

(2)   there   exists   after-discovered    facts   or   evidence;   or   (3)   a   new

constitutional right has been recognized.” Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa. Super. 2007) (citations omitted).                A PCRA petition

invoking one of these statutory exceptions must “be filed within sixty days of

the date the claim first could have been presented.” Gamboa-Taylor, 753

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to

the time restrictions of the PCRA must be pled in the petition, and may not

be raised for the first time on appeal.         Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not

raised before the lower court are waived and cannot be raised for the first

time on appeal.”).

      Because Appellant did not file a petition for writ of certiorari with the

United States Supreme Court following our Supreme Court’s denial of his

allocatur petition, for PCRA purposes, Appellant’s judgment of sentence

became final ninety (90) days thereafter, on November 10, 1999.                     42

Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13. Appellant filed the instant PCRA

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petition over twelve years later. As a result, his PCRA petition is patently

untimely unless he has satisfied his burden of pleading and proving that one

of the enumerated exceptions applies.     See Commonwealth v. Beasley,

741 A.2d 1258, 1261 (Pa. 1999).

     Appellant has failed to prove the applicability of any of the exceptions

to the PCRA’s time restrictions. Appellant contends that his PCRA falls under

the exception of subsection 9545(b)(1)(iii) because the United States

Supreme Court recognized a new constitutional right in Miller v. Alabama,

132 S.Ct. 2455 (2012).     In Miller, the high court held that mandatory

sentences of life without parole “for those under the age of 18 at the time of

their crimes violates the Eighth Amendment’s prohibition against ‘cruel and

unusual punishment.’” Miller, 132 S.Ct. at 2460. Appellant asserts that the

Miller decision should be applied retroactively to his life sentence.      As

recognized by the PCRA court, Appellant’s claim fails for two reasons.

     First, we note that the Miller holding is inapposite because Appellant

was not a juvenile when he robbed and killed the victim. Second, even had

Appellant been a juvenile at the time, our Supreme Court has determined

that the Miller decision should not be applied retroactively. See generally,

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013). Thus, Appellant

cannot avoid the PCRA’s time bar pursuant to Section 9545(b)(iii).

     In sum, Appellant’s PCRA petition is facially untimely, and he has failed

to meet his burden of proof with regard to any exception to the timeliness


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requirements of the PCRA. We therefore affirm the PCRA court’s denial of

Appellant’s petition for post-conviction relief.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2014




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