J-S82032-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                  Appellee                :
          v.                              :
                                          :
VERNON EARL MCGINNIS,                     :
                                          :
                  Appellant               :   No. 824 WDA 2017

                    Appeal from the PCRA Order May 17, 2017,
               in the Court of Common Pleas of Armstrong County,
               Criminal Division, at No(s): CP-03-CR-0000547-1996

BEFORE:        BENDER, P.J.E., STEVENS, P.J.E.*, and STRASSBURGER, J.**

MEMORANDUM BY STRASSBURGER, J.:                  FILED JANUARY 23, 2018

     Vernon Earl McGinnis (Appellant) pro se appeals from the May 17,

2017 order which denied his petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.1

     “Appellant pled guilty to first degree murder and was sentenced

immediately to life imprisonment on April 9, 1997. Appellant did not file a

direct appeal. Rather, on March 15, 2000, Appellant filed a petition for writ

1
  Also before us is a letter from Appellant, received by this Court on
December 4, 2017. In this letter, Appellant averred it had been two weeks
since the Commonwealth’s brief was due and he had yet to receive a copy.
Thus, Appellant sought to inquire with this Court whether he would still have
the opportunity to file a reply brief. A review of the record reveals that the
Commonwealth did file its brief on November 16, 2017. However, it appears
from the certificate of service, that while the Commonwealth sent a copy to
Appellant, it was sent to the incorrect address. Commonwealth’s Brief at 5.
This Court is unaware if Appellant has since received a copy of the brief.
Regardless, in light of the issues presented on appeal, the argument set
forth in Appellant’s brief and our disposition, a reply brief from Appellant
would not alter this Court’s decision. Thus, we deny Appellant’s request for
relief.

* Former Justice specially assigned to the Superior Court
**Retired Senior Judge assigned to the Superior Court.
J-S82032-17


of habeas corpus, which the trial court treated as a PCRA petition.”

Commonwealth         v.   McGinnis,    959    A.2d   969     (Pa.    Super.    2008)

(unpublished memorandum). The PCRA court ultimately denied Appellant’s

petition.   “Over a year later, Appellant sought to appeal the denial of his

PCRA petition nunc pro tunc, and the [PCRA] court granted his request.” Id.

However, on appeal, this Court treated Appellant’s request for                   the

reinstatement of his PCRA appellate rights as his second PCRA petition, and

affirmed the PCRA court’s denial of Appellant’s first PCRA petition.

Commonwealth        v.    McGinnis,    844    A.2d   1284    (Pa.     Super.   2003)

(unpublished memorandum).

      Since then Appellant has filed numerous petitions.            Pertinent to this

appeal, on March 29, 2017, Appellant pro se filed his tenth PCRA petition.

The PCRA court filed a notice of its intent to dismiss the petition without a

hearing pursuant to Pa.R.Crim.P. 907, and Appellant promptly filed a

response. On May 17, 2017, the PCRA court dismissed the petition.

      Appellant timely filed a notice of appeal, and both Appellant and the

PCRA court complied with Pa.R.A.P. 1925. On appeal, Appellant raises two

substantive claims for relief. See Appellant’s Brief at 4.

      Before we may consider the merits of Appellant’s claims, we must

determine whether his PCRA petition was timely filed, as the timeliness of a

post-conviction petition is jurisdictional.   Commonwealth v. Robinson, 12

A.3d 477, 479 (Pa. Super. 2011).       Generally, a petition for relief under the



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PCRA, including a second or subsequent petition, must be filed within one

year of the date the judgment of sentence is final unless the petition alleges,

and the petitioner proves, that an exception to the time for filing the petition

is met. 42 Pa.C.S. § 9545.

      It is clear that Appellant’s petition is facially untimely; his judgment of

sentence became final in 1997. However, Appellant alleges that his petition

is based upon a change in the law, referencing Miller v. Alabama, 567 U.S.

460, 132 S. Ct. 2455 (2012) and Montgomery v. Louisiana, 136 S.Ct. 718

(2016). Appellant’s Brief at 6. Based on the foregoing case law, Appellant

contends the following timeliness exception applies: “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)(iii). Appellant’s Brief at 6.

      In Miller, the Court held “that mandatory life without parole for those

under the age of 18 at the time of their crimes violates the Eighth

Amendment’s prohibition on ‘cruel and unusual punishments.’” 567 U.S. at

465 (emphasis added). In Montgomery, the Court determined that Miller

announced a new substantive rule of law that applies retroactively.

Montgomery, 136 S. Ct. at 736.

      Appellant was not a juvenile at the time of the murder; rather, he was

18 years old. See Appellant’s Brief at 8 (“Appellant was 18 [years] old at the



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time of the crime...”).    Accordingly, Miller and Montgomery are not

applicable to Appellant’s petition.    See Commonwealth v. Rodriguez,

2017 WL 5476640, at *14 (Pa. Super. 2017) (“Appellant acknowledges that

he was eighteen years old at the time he committed the murder; however,

he argues, nevertheless, that he may invoke Miller because his immature

and/or impulsive brain made him similar to a juvenile. Thus, Appellant seeks

an extension of Miller to persons convicted of murder who were older at the

time of their crimes than the class of defendants subject to the Miller

holding. However, this Court has previously rejected such an argument.”).

     Because Appellant did not plead facts that would establish an

exception to the PCRA’s timeliness requirements, the PCRA court properly

dismissed   Appellant’s   petition    without   holding   a   hearing.   See

Commonwealth v. Albrecht, 994 A.2d 1091, 1095 (Pa. 2010) (affirming

dismissal of PCRA petition without a hearing because the appellant failed to

meet burden of establishing timeliness exception).

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 1/23/2018




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