J-S44023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

THEODORE FLOYD,

                         Appellant                   No. 3403 EDA 2016


               Appeal from the PCRA Order October 6, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-1215912-1977


BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                      FILED SEPTEMBER 25, 2017

      Appellant, Theodore Floyd, appeals pro se from the order denying his

third petition for relief filed pursuant to the Post Conviction Relief Act

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

      The PCRA court summarized the procedural history of this case as

follows:

             On June 5, 1978, following a jury trial presided over by the
      Honorable Alex Bonavitacola, [Appellant] was convicted of first-
      degree murder and criminal conspiracy. On January 19, 1979,
      the trial court sentenced [Appellant] to a mandatory term of life
      imprisonment on the murder conviction and a lesser, consecutive
      term of incarceration on the remaining offense. On July 8, 1981,
      following a direct appeal, the Pennsylvania Supreme Court
      affirmed the judgment of sentence.2
            2
              Commonwealth v. Floyd, 431 A.2d 984 (Pa.
            1981).
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            In 1984, [Appellant] filed his first petition for collateral
     relief under the former provisions of the Post Conviction Hearing
     Act (“PCHA”).3 Counsel was appointed and subsequently filed a
     “no merit” letter indicating that the issues raised in the petition
     were without arguable merit and there were no additional issues
     which could be raised in a counseled amended petition. The
     PCHA court subsequently issued an order formally denying the
     petition. The Superior Court affirmed the PCHA court’s order on
     December 5, 1986.4 The Pennsylvania Supreme Court denied
     allocator on June 2, 1987.5
           3
             Act of January 25, 1966, P.L. (1965) 1580, codified
           at 19 P.S. § 1180-1 et seq. The PCHA was repealed
           in part, modified in part, and renamed the Post
           Conviction Relief Act, effective April 13, 1988.
           4
             Commonwealth v. Floyd, 520 A.2d 1213 (Pa.
           Super. 1986) (unpublished memorandum).
           5
             Commonwealth v. Floyd, 527 A.2d 535 (Pa.
           1987).

           On January 4, 1993, [Appellant] filed his second petition
     for post-conviction relief under the PCRA. On January 26, 1993,
     the PCRA court dismissed his petition. On March 30, 1994, the
     Superior Court dismissed the appeal for failure to file a brief.

           On August 13, 2012, [Appellant] filed the instant pro se
     PCRA petition. [Appellant] filed an amended petition on March
     15, 2016 that was reviewed jointly with his initial petition.
     Pursuant to Pennsylvania Rule of Criminal Procedure 907,
     [Appellant] was served notice of this court’s intention to dismiss
     his petition on June 21, 2016. [Appellant] submitted a response
     to the Rule 907 notice on July 8, 2016. On October 6, 2016, the
     PCRA court dismissed his petition as untimely. On October 18,
     2016, the instant notice of appeal was timely filed to the
     Superior Court.




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Trial Court Opinion, 1/26/17, at 1-2 (some internal footnotes omitted).1

       On appeal, Appellant presents the following issues for our review:

       Although Appellant was six months into his eighteenth birthday
       when this offense was committed, should he have been granted
       relief under Miller v. Alabama, 1323 S.Ct. 2455 (2012) and
       Montgomery v. Louisiana, 136 S.Ct. 718 (2016) where U.S.
       Supreme Court precedent and social science confirms that
       “youth (and all that accompanies it)” does not subside until a
       person’s “mid-20s”?

       Should the PCRA court have applied the full faith and credit
       clause of the United States Constitution and granted Appellant
       relief pursuant to People v. House, 2015 IL App. (1st)110580?

Appellant’s Brief at 7 (full capitalization omitted).

       Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error.          Commonwealth v. Phillips,

31 A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).              The PCRA court’s findings will not be

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

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

       We must first address whether Appellant satisfied the timeliness

requirements of the PCRA. “[T]he timeliness requirements of the PCRA are
____________________________________________


1
  It does not appear from the record that the PCRA court directed Appellant
to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
However, the PCRA court did file an opinion on January 26, 2017, explaining
that the underlying PCRA petition was dismissed because it was untimely.



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‘mandatory and jurisdictional in nature’ and, therefore, ‘no court may

properly disregard or alter them in order to reach the merits of the claims

raised    in   a   PCRA    petition   that     is   filed   in   an   untimely    manner.’”

Commonwealth v. Davis, 916 A.2d 1206, 1208 (Pa. Super. 2007).

Effective January 16, 1996, the PCRA was amended to require a petitioner to

file any PCRA petition within one year of the date the judgment of sentence

becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment of sentence “becomes

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.

§ 9545(b)(3). Where a petitioner’s judgment of sentence became final on or

before the effective date of the amendment, a special grace proviso allowed

first PCRA petitions to be filed by January 16, 1997. See Commonwealth

v. Alcorn, 703 A.2d 1054, 1056-1057 (Pa. Super. 1997) (explaining

application of PCRA timeliness proviso).

        However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.2 A petition invoking one of these exceptions must be filed


____________________________________________


2
    The exceptions to the timeliness requirement are:

(Footnote Continued Next Page)


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within sixty days of the date the claim first could have been presented.

42 Pa.C.S. § 9545(b)(2).          In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.

      Our review of the record reflects that Appellant’s judgment of sentence

was affirmed by the Pennsylvania Supreme Court on July 8, 1981.

Commonwealth v. Floyd, 431 A.2d 984 (Pa. 1981).                 Thus, Appellant’s

judgment became final on September 6, 1981, sixty days after the

Pennsylvania Supreme Court affirmed Appellant’s judgment of sentence and

the time for filing a petition for review with the United States Supreme Court

expired. See 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 20 (effective June 30,


                       _______________________
(Footnote Continued)

      (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), (ii), and (iii).




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1980).3 Accordingly, Appellant’s judgment of sentence became final prior to

the effective date of the PCRA amendments.          Appellant’s instant PCRA

petition, filed on August 13, 2012, does not qualify for the grace proviso

because it was neither Appellant’s first PCRA petition, nor was it filed before

January 16, 1997. Thus, the instant PCRA petition is patently untimely.

       As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may nevertheless be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. §

9545(b)(1). If a petitioner asserts one of these exceptions, he must file his

petition within sixty days of the date that the exception could be asserted.

42 Pa.C.S. § 9545(b)(2).

       Our review of the record reflects that Appellant has attempted to

invoke the third exception to the PCRA timeliness requirements, i.e., “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. § 9544(b)(1)(iii), with reliance upon the United

States Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460

(2012), and the Illinois Appellate Court case of People v. House, 72 N.E.3d

____________________________________________


3
  We observe that the Rules of the United States Supreme Court pertaining
to the filing of a petition for writ of certiorari have been renumbered and the
time-period altered several times since the applicable Rule in this case.



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357 (Ill. App. 2015). Appellant asserts that although he was eighteen years

of age at the time of the offense, he falls into the category of “juvenile

offender.” Appellant’s Brief at 9-16.

      In Miller, the United States Supreme Court held that the application of

mandatory sentences of life imprisonment without the possibility of parole,

without     consideration    of   the   defendant’s   age   and   the   attendant

characteristics of youth, to individuals under the age of eighteen at the time

they committed homicide is unconstitutional as violative of the Eighth

Amendment’s prohibition on “cruel and unusual punishments.” Miller, 567

U.S. at 465.     In Montgomery v. Louisiana, 136 S.Ct. 718 (2016), the

Court determined that Miller announced a new substantive rule of law that

applies retroactively. Montgomery, 136 S.Ct. at 732.

      Herein, Appellant was not under the age of eighteen at the time of the

offense; rather, he admittedly was eighteen years old. Appellant’s Brief at

11. Accordingly, Miller and Montgomery are not applicable to Appellant’s

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

2016) (“[P]etitioners who were older than 18 at the time they committed

murder are not within the ambit of the Miller decision and therefore may not

rely on that decision to bring themselves within the time-bar exception in

Section 9545(b)(1)(iii)”).

      In House, the Illinois Appellate Court held that application of a

sentence of life without parole imposed upon defendant House, who was


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nineteen years old at the time of the offense and served as a lookout for the

perpetrators of the murders, constituted a violation of the proportionate

penalties clause of the Illinois Constitution. House, 72 N.E.3d at 389. As

stated above, the timeliness exception codified in subsection 9545(b)(1)(iii)

applies to new rights recognized by either the United States Supreme Court

or the Pennsylvania Supreme Court.       It does not apply to the grant of an

Illinois-state-constitution-based   challenge   by   the   Illinois   intermediate

appellate court. Hence, Appellant cannot utilize the House decision to meet

a timeliness exception.

      Consequently, because the instant PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address the claims

presented and grant relief.    See Commonwealth v. Fairiror, 809 A.2d

396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to

hear untimely petition). Likewise, we lack jurisdiction to reach the merits of

the appeal. See Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa.

Super. 2002) (holding that Superior Court lacks jurisdiction to reach merits

of appeal from untimely PCRA petition).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/25/2015

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