J-S67041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                  Appellee               :
                                         :
            v.                           :
                                         :
VICTOR ZANDERS                           :
                                         :
                  Appellant              :          No. 2890 EDA 2016

                 Appeal from the PCRA Order August 9, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0409031-1995


BEFORE:    GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.

JUDGMENT ORDER BY GANTMAN, P.J.:                    FILED OCTOBER 19, 2017

     Appellant, Victor Zanders, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas, which dismissed as untimely his

second petition filed under the Post Conviction Relief Act (“PCRA”), at 42

Pa.C.S.A. §§ 9541-9546. On March 15, 1996, a jury convicted Appellant of

second-degree    murder,   robbery,   conspiracy,    aggravated   assault,   and

possessing instruments of crime. The court sentenced Appellant on July 15,

1996, to life imprisonment for the murder conviction and imposed

concurrent sentences for some of the other offenses.       This Court affirmed

the judgment of sentence on June 11, 1998, and our Supreme Court denied

allowance of appeal on March 9, 2000. See Commonwealth v. Zanders,

723 A.2d 239 (Pa.Super. 1998), appeal denied, 562 Pa. 670, 753 A.2d 818

(2000).


____________________________________
* Former Justice specially assigned to the Superior Court.
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        On May 7, 2001, Appellant timely filed a pro se PCRA petition.    The

court appointed counsel on February 22, 2002, who subsequently filed a

motion to withdraw and “no-merit” letter per Commonwealth v. Turner,

518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550

A.2d 213 (Pa.Super. 1988) (en banc). The court issued appropriate notice

per Pa.R.Crim.P. 907 on March 21, 2003, and denied PCRA relief on April 16,

2003. Appellant did not appeal that decision.

        Appellant filed the current pro se PCRA petition on July 23, 2012,

claiming relief under Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183

L.Ed.2d 407 (2012) (holding sentence of mandatory life imprisonment

without possibility of parole, for those under age of 18 at time of their

crimes, violates Eighth Amendment’s prohibition on cruel and unusual

punishments).      On October 12, 2012, Appellant filed a motion to stay the

proceedings pending a decision on whether Miller applies retroactively to

cases on collateral review.1         Appellant amended his petition on May 19,

2016, relying on Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718,

193 L.Ed.2d 599 (2016) (holding Miller applies retroactively to cases on

state collateral review). The court issued Rule 907 notice on June 7, 2016,

and dismissed the petition as untimely on August 9, 2016. Appellant timely

filed a pro se notice of appeal on August 31, 2016. No Pa.R.A.P. 1925(b)

____________________________________________


1   The record shows the court held the petition in abeyance.



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statement was ordered or filed.

      Preliminarily, the timeliness of a PCRA petition is a jurisdictional

requisite. Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A

PCRA petition, including a second or subsequent petition, shall be filed within

one year of the date the underlying judgment of sentence becomes final. 42

Pa.C.S.A. § 9545(b)(1).       A judgment of sentence is deemed 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.A. § 9545(b)(3). The

statutory   exceptions   to    the    PCRA      time-bar     allow    for    very   limited

circumstances under which the late filing of a petition will be excused; a

petitioner asserting a timeliness exception must file a petition within 60 days

of when the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(1-2).

      Instantly, Appellant’s judgment of sentence became final on June 7,

2000, upon expiration of the time for filing a petition for writ of certiorari

with the U.S. Supreme Court.         See U.S.Sup.Ct.R. 13.            Appellant filed the

current PCRA petition on July 23, 2012, which is patently untimely. See 42

Pa.C.S.A. § 9545(b)(1). On appeal, Appellant attempts to invoke the “new

constitutional right” exception to the statutory time-bar per Section

9545(b)(1)(iii),   claiming   he     is   entitled   to    relief    under    Miller   and

Montgomery. Nevertheless, Appellant admits he was 20 years old at the

time of the offenses at issue. Thus, Miller and Montgomery do not apply.


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This Court has previously rejected the argument that relief under Miller and

Montgomery should be extended to individuals under 25 years old because

the brain is not developed fully until that age.    See Commonwealth v.

Furgess, 149 A.3d 90 (Pa.Super. 2016) (holding appellant who was 19

years old at time of offenses was not entitled to relief under Miller and

Montgomery on collateral review; rejecting “technical juvenile” argument).

Therefore, the court properly dismissed Appellant’s petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/19/2017




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