J-S46045-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                  Appellee                :
                                          :
            v.                            :
                                          :
GEARY T. MYERS,                           :
                                          :
                  Appellant               :           No. 184 EDA 2015

          Appeal from the PCRA Order entered on December 2, 2014
            in the Court of Common Pleas of Philadelphia County,
                Criminal Division, No. CP-51-CR-0228571-1993

BEFORE: MUNDY, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED AUGUST 31, 2015

      Geary T. Myers (“Myers”) appeals, pro se, from the Order dismissing

his third Petition for relief filed pursuant to the Post Conviction Relief Act

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

      Following a jury trial, Myers was found guilty of one count of second-

degree murder, multiple counts of aggravated assault and robbery, and a

variety of weapons-related offenses, arising out of a shooting spree in

Philadelphia on November 20, 1992. Myers was sentenced to an aggregate

term of life in prison. This Court affirmed the judgment of sentence, and the

Pennsylvania Supreme Court denied Myers’s Petition for Allowance of

Appeal.   Commonwealth v. Myers, 677 A.2d 1266 (Pa. Super. 1996)

(unpublished memorandum), appeal denied, 681 A.2d 177 (Pa. 1996).
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     In 2000, Myers filed his first PCRA Petition. The PCRA court dismissed

the Petition, and this Court affirmed the dismissal. See Commonwealth v.

Myers, 778 A.2d 1246 (Pa. Super. 2001) (unpublished memorandum).

     In 2003, Myers filed his second PCRA Petition.         The PCRA court

dismissed the Petition, and this Court affirmed the dismissal.              See

Commonwealth v. Myers, 864 A.2d 581 (Pa. Super. 2004) (unpublished

memorandum).

     Myers filed the instant Petition, his third, on July 15, 2010.    Myers

subsequently filed numerous additional pleadings, including an Amended

PCRA Petition referencing the United States Supreme Court’s decision in

Miller v. Alabama, 130 S. Ct. 2455 (2012).        The PCRA court issued a

Pa.R.Crim.P. 907 Notice of Intent to Dismiss the PCRA Petition without a

hearing.   Myers filed a response to the Rule 907 Notice.    Thereafter, the

PCRA court dismissed the Petition. Myers filed a timely Notice of Appeal.

     Our standard of review regarding a PCRA court’s dismissal of a PCRA

petition is whether the PCRA court’s decision is supported by the evidence of

record and is free of legal error. Commonwealth v. Garcia, 23 A.3d 1059,

1061 (Pa. Super. 2011).

     Initially, we observe that all PCRA petitions, including second or

subsequent petitions, must be filed within one year of the defendant’s

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

judgment becomes final at the conclusion of direct review, including



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discretionary review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking

review.”      Id. § 9545(b)(3).     The PCRA’s timeliness requirements are

jurisdictional in nature and a court may not address the merits of the issues

raised if the PCRA petition was not timely filed.           Commonwealth v.

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

      Here, Myers’s judgment of sentence became final on October 1996,

after the ninety-day period to file a writ of certiorari with the United States

Supreme Court expired. Myers had until October 1997 to file a timely PCRA

petition. Since the instant Petition was filed in 2010, the Petition is facially

untimely under the PCRA.

      However, Pennsylvania courts may consider an untimely petition

where the defendant can explicitly plead and prove one of three exceptions

set forth in the PCRA as follows:

      (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.



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42 Pa.C.S.A. § 9545(b)(1).      Any PCRA petition invoking one of these

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

been presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.

     Myers argues that the United States Supreme Court’s decision in

Miller rendered his sentence illegal.   Brief for Appellant at 9.   The Miller

Court held that sentencing schemes mandating life-without-parole sentences

for juveniles, who committed their crimes while under the age of

eighteen, violated the Eighth Amendment prohibition on cruel and unusual

punishment.   Miller, 132 S. Ct. at 2460.      Myers claims that the Miller

reasoning should be extended to him, even though he was twenty years old

at the time he committed the crimes. Brief for Appellant at 10-14.

     In Miller, the Supreme Court specifically held that juveniles under the

age of eighteen could not be given a mandatory life-without-parole

sentence. Miller, 132 S. Ct. at 2460. Because Myers was twenty years old

at the time he committed the murder, Miller does not apply.               See

Commonwealth v. Chambers, 35 A.3d 34, 43 (Pa. Super. 2012) (stating

that only a precise creation of a constitutional right can afford relief on a

timeliness exception under the PCRA).1         Moreover, the Pennsylvania


1
  Myers argues that the United States Supreme Court’s decision in Graham
v. Florida, 130 S. Ct. 2011 (2010), rendered his sentence illegal. Brief for
Appellant at 9. The Graham Court held that the imposition of a life-without-
parole sentence on a juvenile offender who committed a non-homicide crime
violated the Eighth Amendment. Graham, 130 S.Ct. at 2017. However, as
noted above, Myers was not a juvenile at the time of the crime; thus,
Graham does not apply.


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Supreme Court has held that Miller does not apply retroactively to juveniles

in Pennsylvania, whose judgments of sentence were final at the time Miller

was decided. Commonwealth v. Cunningham, 81 A.3d 1, 10 (Pa. 2013);

see also Commonwealth v. Seskey, 86 A.3d 237, 243 (Pa. Super. 2014)

(stating that this Court is confined by the Cunningham decision).2

Accordingly, Myers has failed to satisfy the requirements to the exception

provided in 42 Pa.C.S.A. § 9545(b)(1)(iii) to overcome the untimeliness of

his Petition.

      Because the PCRA court decision is supported by the record and free of

legal error, its dismissal of the PCRA Petition was proper.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2015




2
  The United States Supreme Court granted certiorari in Montgomery v.
Louisiana, 135 S. Ct. 1546 (2015), to determine whether Miller applies
retroactively. However, until this decision is issued, Cunningham remains
binding. See Commonwealth v. Cristina, 114 A.3d 419, 424 n.1 (Pa.
Super. 2015) (Mundy, J., concurring).


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