J-S43012-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RAYMOND J. LAMBERT

                            Appellant                 No. 1458 WDA 2016


             Appeal from the PCRA Order entered August 29, 2016
                 In the Court of Common Pleas of Elk County
               Criminal Division at No: CP-24-CR-0000363-2008


BEFORE: STABILE, SOLANO, and FITZGERALD*, JJ.

MEMORANDUM BY STABILE, J.:                      FILED SEPTEMBER 18, 2017

        Appellant, Raymond J. Lambert, appeals from the August 29, 2016

order entered in the Court of Common Pleas of 59th Judicial District, Elk

County Branch, denying his petition for collateral relief pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.          On appeal,

Appellant argues the PCRA court erred in dismissing the instant PCRA

petition as untimely. We disagree. Accordingly, we affirm the order.

        The underlying facts of this matter are not in dispute.1       Briefly,

following a jury trial, Appellant was convicted, inter alia, of murder in the
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  Relevant to this matter, it is also undisputed that Appellant was 18 years
old at the time he committed the underlying crimes. See Appellant’s Brief at
8.
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first degree.    On May 7, 2010, the trial court sentenced Appellant to life

without parole for the murder conviction.        Appellant did not file a direct

appeal.

       Appellant filed the instant PCRA petition on March 28, 2016,

approximately six years after his judgment became final.2 After appointing

counsel, the PCRA court dismissed the petition as untimely. On appeal,

Appellant argues he is entitled to PCRA relief under Montgomery v.

Louisiana, 136 S.Ct. 718 (2016), and Miller v. Alabama, 132 S.Ct. 2455

(2012). We disagree.

       “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).                   All PCRA

petitions, “including a second or subsequent petition, shall be filed within

one year of the date the judgment becomes final” unless an exception to

timeliness applies.        42 Pa.C.S.A. § 9545(b)(1).       “The PCRA’s time

restrictions are jurisdictional in nature.       Thus, [i]f a PCRA petition is

untimely, neither this Court nor the [PCRA] court has jurisdiction over the
____________________________________________


2
  As noted, the trial court sentenced Appellant on May 7, 2010. Appellant
did not file a direct appeal. Accordingly, Appellant’s judgment, for purposes
of the PCRA, became final on June 7, 2010, upon expiration of the 30-day
period he had to file an appeal with this Court and he had until June 7, 2011
to file a timely petition.




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petition. Without jurisdiction, we simply do not have the legal authority to

address the substantive claims.”          Commonwealth v. Chester, 895 A.2d

520, 522 (Pa. 2006) (first alteration in original) (internal citations and

quotation marks omitted).         As timeliness is separate and distinct from the

merits of Appellant’s underlying claims, we first determine whether this

PCRA petition is timely filed.        See Commonwealth v. Stokes, 959 A.2d

306, 310      (Pa.   2008)     (consideration    of   Brady   claim   separate   from

consideration of its timeliness).        The timeliness requirements of the PCRA

petition must be met, even if the underlying claim is a challenge to the

legality of the sentence. See Commonwealth v. Holmes, 933 A.2d 57, 60

(Pa. 2007) (“Although legality of sentence is always subject to review within

the PCRA, claims must still first satisfy the PCRA’s time limits or one of the

exceptions thereto”) (citing Commonwealth v. Fahy, 737 A.2d 214, 223

(1999)).

       Again, we must first determine whether the instant petition is timely.

As noted above, Appellant filed the instant petition in 2016, almost six years

after his judgment of sentence became final. As such, the instant petition is

facially untimely.     To overcome the untimeliness of the petition, Appellant

argues that he is entitled to review based on Miller3 and Montgomery.4

We disagree.

____________________________________________


3
 Miller 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
(Footnote Continued Next Page)


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      Even if Montgomery would make his petition timely, he is not entitled

to relief under Miller. We have repeatedly held that Miller does not apply

to defendants who were eighteen or older when they committed murders.

See, e.g., Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super.

2016).    As noted above, Appellant was 18 years old at the time of the

underlying crimes.         Accordingly, Appellant has no claim under Miller.

Because Appellant has no claim under Miller, Montgomery does not affect

the outcome of this matter.

      Appellant also argues that despite the fact he was an adult at the time

of the crimes, Miller should be applied to him because his brain, as is the

case in juveniles, was not fully developed. We rejected a similar contention

in Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013).                          In

Cintora, two appellants, who were nineteen and twenty-one years of age at

the   time   of   their     underlying     crimes,   and   were   sentenced   to   life

imprisonment, claimed:

      [T]hat because Miller created a new Eighth Amendment right,
      that those whose brains were not fully developed at the time of
      their crimes are free from mandatory life without parole
                       _______________________
(Footnote Continued)

on ‘cruel and unusual’ punishments.” Miller, 132 S.Ct. at 2460 (emphasis
added).
4
  In Montgomery, the Unites States Supreme Court held that Miller was a
new substantive rule that, under the United States Constitution, must be
retroactively applied in cases on state collateral review. Montgomery, 136
S.Ct. at 736.




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     sentences, and because research indicates that the human mind
     does not fully develop or mature until the age of 25, it would be
     a violation of equal protection for the courts to treat them or
     anyone else with an immature brain, as adults. Thus, they
     conclude that the holding in Miller should be extended to them
     as they were under the age of 25 at the time of the murder and,
     as such, had immature brains.

Cintora, 69 A.3d at 764. In rejecting the argument, we concluded that “[a]

contention that a newly-recognized constitutional right should be extended

to others does not render their petition timely pursuant to [S]ection

9545(b)(1)(iii).” Id. (emphasis added).   Thus, as in Cintora, Appellant’s

claim that Miller applied to the case sub judice based on his mental

development is without merit.

     In light of the foregoing, we conclude that Appellant’s PCRA petition is

untimely and that Appellant failed to plead and prove any exception to save

it from the PCRA’s time bar. Accordingly, we will not review the merits of

Appellant’s contentions because we have no jurisdiction to entertain an

untimely PCRA petition. See Chester, supra.

     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2017




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