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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                   1   IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA


                      v.

ROBERT STRINGER

                           Appellant                   No. 937 WDA 2016


                    Appeal from the PCRA Order May 11, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0001070-2004


BEFORE:     OLSON, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                                FILED MAY 08, 2017

        Appellant, Robert Stringer, appeals from the May 11, 2016 order

denying, as untimely, his petition filed under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        On June 13, 2005, Appellant was convicted by a   jury of one count each
of first -degree murder, kidnapping, robbery, robbery of           a   motor vehicle,

criminal conspiracy, theft, receiving stolen property, and access device

fraud.'     On   September 1, 2005, Appellant received         a       mandatory life

sentence. See PCRA Court Opinion (PCO), 08/23/2016, at 3.




' 18 Pa.C.S. §§ 2502(a), 2901(a),            3701(a)(i)-(ii), 3702, 903(a)(1),
3921(a), 3925, 4106(a)(1) respectively.



*   Former Justice specially assigned to the Superior Court.
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        Appellant timely filed   a   notice of appeal. On May 23, 2008, this Court

affirmed his judgment of sentence, and the Supreme Court denied his

subsequent petition for allowance of appeal.                     See Commonwealth v.

Stringer, 954 A.2d        43 (Pa. Super. 2008) (unpublished memorandum),

appeal denied, 960 A.2d 456 (Pa. 2008).

        Appellant timely filed pro se             a   PCRA   petition, and counsel was

appointed to represent him. Counsel submitted                a   Turner/Finley2 letter and
petition to withdraw. After proper notice pursuant to Pa.R.Crim.P. 907, the

PCRA    court granted counsel's petition and dismissed Appellant's petition.

Appellant timely appealed, and this Court affirmed the dismissal of his

petition. See Commonwealth v. Stringer, 40 A.3d 205 (Pa. Super. 2011)

(unpublished memorandum), appeal denied, 50 A.3d 692 (Pa. 2012).

        Appellant untimely filed     a   second petition seeking PCRA relief, alleging

that his life sentence without the possibility of parole was illegal under
Miller.3 See     PCRA   petition, 7/26/12, at 1-6. The PCRA court dismissed the

petition, and this Court affirmed.           See Commonwealth v. Stringer, 87

A.3d 880 (Pa. Super. 2013) (unpublished memorandum).




2 Commonwealth v. Finley, 550 A.2d 213 (Pa.                                Super.   1998);
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988).
3   Miller
       v. Alabama, 132 S. Ct. 2455 (2012) (holding unconstitutional the
mandatory life imprisonment without parole for juvenile offenders).



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        Between July 2013 and October 2013, Appellant filed numerous pro se

petitions seeking habeas corpus relief.               These petitions were summarily

dismissed and no appellate decisions rendered.

        Appellant untimely filed this instant petition, his third, on March 7,

2016, asserting that his sentence               is   illegal.4   He   argued that   Miller
established      a   constitutional right which has been held to apply retroactively.

See    PCO     at 2. After proper notice pursuant to Pa.R.Crim.P. 907, the PCRA

court dismissed Appellant's petition.          Appellant timely appealed and filed      a

court -ordered Pa.R.A.P. 1925(b) statement of errors complained of on

appeal. The PCRA court issued          a   responsive opinion.

        Herein, Appellant presents three issues for our review:

        I.      Whether Appellant is entitled to Miller/Montgomery5 relief
                under the equal protection clause.

        II.     Whether Appellant is similarly situated as those in Miller under
                Pennsylvania law and Constitution.

        III.    Whether the [trial] court erred by failing                 to   reconsider
                Appellant's notice of intent response.

Appellant's Brief at iv (unnecessary capitalization omitted).


4
  Appellant's PCRA petition does not appear of record, despite being
docketed on March 10, 2016. However, as the PCRA court addressed his
petition in its opinion, we are able to discern the issues Appellant raises.
See PCRA Court Opinion (PCO), 08/23/16, at 3-4.

5   Montgomery   Louisiana, 136 S. Ct. 718 (2016), as revised (Jan. 27,
                       v.
2016) (holding that the constitutional right recognized in Miller was
substantive and, thus, applicable retroactively).


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        Our standard when reviewing an order denying                   a     PCRA   petition   is

whether the PCRA Court's determination                  is   supported by the evidence of

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007).

        We begin by addressing the timeliness of Appellant's petition, as the

PCRA    time limitations implicate our jurisdiction and may not be altered or

disregarded       in    order   to   address      the    merits   of   his    claims.     See

Commonwealth v. Bennett, 930 A.2d 1264, 1267                        (Pa. 2007).     Under the

PCRA, any     petition for relief, including second and subsequent petitions,

must be filed within one year of the date on which the judgment of sentence

becomes final.         Id. There   are three exceptions:

        (i) the failure to raise the claim previously was the result of
        interference by government officials with the presentation of the
        claim in violation of the Constitution or laws of this
        Commonwealth or the Constitution or laws of the United States;

        (ii) the facts upon which the claim is predicated were unknown
        to the petitioner and could not have been ascertained by the
        exercise of due diligence; or

        (iii) 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)(i)-(iii).   Any petition attempting to invoke these

exceptions "shall be filed within 60 days of the date the claim could have

been presented."           42 Pa.C.S.      §   9545(b)(2); see Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 783                  (Pa. 2000).     An appellant attempting

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to invoke an exception must plead and prove the exception in his petition.

See Bennett, 930 A.2d at 1267.

        Appellant acknowledges that his petition         is   untimely.6     Nevertheless,

Appellant asserts that he has qualified for the constitutional right exception

to the PCRA timeliness requirement.           In his brief, he avers that due process

was violated when he was refused     a   hearing to make his case that he was            a


"juvenile" under   Miller!    See Appellant's Brief at 11.                 This Court has

previously considered and rejected the argument that offenders over the age

of eighteen may be considered "juveniles" under Miller.                        See, e.g.,

Commonwealth v. Furgess, 149 A.3d 90, 94                          (Pa.     Super.   2016).

Accordingly, Appellant   is   not entitled to relief under Miller, he is not

similarly situated to the defendants     in   Miller;   and the trial court did not err

in   denying him relief. See Ragan, 923 A.2d at 1170.




6 Appellant's judgment of sentence became final on January 22, 2009 at the
expiration of the ninety -day time period for seeking review with the United
States Supreme Court. See 42 Pa.C.S. § 9545(b)(3) (a judgment of
sentence becomes final at the conclusion of direct review or the expiration of
the time for seeking the review); Commonwealth v. Owens, 718 A.2d
330, 331 (Pa. Super. 1998) (noting that Sup.Ct.R. 13 grants an Appellant
ninety days to seek review with the United States Supreme Court).
Appellant filed this instant petition almost seven years too late.

  Appellant concedes that he was over the age of eighteen but argues that
he was a "technical" juvenile, as he was approximately twenty years old at
the time of the crime. See Appellant's Brief at 8, 11.


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        Accordingly, the PCRA court's determination that Appellant's petition is

untimely and meets no timeliness exception      is   supported by the record and

free of legal error. Ragan, 923 A.2d at 1170.

        Order affirmed.




Judgment Entered.




J    seph D. Seletyn,
Prothonotary


Date: 5/8/2017




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