J-S29009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

NEUR TYYAKEN HEADEN

                            Appellant                 No. 2697 EDA 2016


                   Appeal from the PCRA Order July 26, 2016
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0002384-1995


BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY LAZARUS, J.:                           FILED MAY 02, 2017

        Neur Tyyaken Headen appeals pro se from the trial court’s order

denying his third, pro se petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546.1          In 1996, Headen was convicted,

after a jury trial, of first-degree murder and third-degree murder of two

victims; he was sentenced to a term of life in prison without the possibility of

parole.    Headen was 23 years old at the time he committed the offenses.

After careful review, we affirm.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  In reviewing the denial of a PCRA petition, this Court is limited to
determining whether the PCRA court’s findings are supported by the record
and whether the order is free of legal error. Commonwealth v. Van Horn,
797 A.2d 983, 986 (Pa. Super. 2002).
J-S29009-17



       Headen asserts that the trial court improperly determined that his

untimely2 PCRA petition did not warrant relief where: (1) his petition meets

the “newly recognized” constitutional exception to the PCRA under 42

Pa.C.S. § 9545(b)(1)(iii) and (2) his sentence is unconstitutional, as

expressed in Miller v. Alabama, 132 S.Ct. 2455 (2012), because it

constitutes “cruel and unusual punishment” under the Eighth Amendment to

the United States Constitution and violates the Equal Protection Clause of

the Fourteenth Amendment to the United States Constitution.

       Because Headen was over the age of 18 at the time he committed the

instant homicide offenses, he is entitled to no relief under Miller.                See

Miller, supra (United States Supreme Court held that sentencing juvenile

convicted of homicide offense to mandatory life imprisonment without parole

violates   the   Eighth     Amendment’s        prohibition   on    cruel   and   unusual

punishment; holding limited to those offenders who were under age of 18 at

time they committed their crimes).

       Moreover,     Montgomery v. Louisiana,                135   S.Ct.   718   (2016),

provides Headen no relief. In Montgomery, the Supreme Court concluded

that the holding of Miller is a substantive rule of constitutional law to which
____________________________________________


2
  Headen does not challenge the fact that his petition is facially untimely.
Headen’s judgment of sentence became final on April 1, 1998, the date that
his 90-day period to file a writ of certiorari to the United States Supreme
Court expired. See 42 Pa.C.S. § 9545(b)(3); Sup. Ct. R. 13. Instantly,
Headen’s petition, his third, was filed on March 28, 2016.




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J-S29009-17



state collateral review courts were required, as a constitutional matter, to

give retroactive effect.      Id. at 736.      However, the rule in Miller as made

retroactive by Montgomery still only applies to those juveniles who were

under the age of 18 at the time they committed their offenses.              Again,

because Headen was 23 at the time of the murders, he cannot be granted

relief under Miller and Montgomery.

       Order affirmed.3

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/2017




____________________________________________


3
  We also reject Headen’s contention that his “developmentally challenged”
mental state at the time he committed the crimes technically made him a
“juvenile” under the holdings of Miller and Montgomery.                  See
Commonwealth v. Furgess, 149 A.3d 90 (reaffirming fact that petitioners
who were older than 18 at time they committed murder are not within ambit
of Miller and rejecting argument that Miller should apply to petitioners who
were “technical[ly] juvenile[s]” with immature brain development at the
time of the offenses).



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