J.A22041/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                   :         IN THE SUPERIOR COURT OF
                                                :              PENNSYLVANIA
                           Appellee             :
                                                :
                      v.                        :
                                                :
                                                :
DARON NESBIT,                                   :
                                                :
                           Appellant            :         No. 2162 MDA 2013


                   Appeal from the PCRA Order November 4, 2013
                    In the Court of Common Pleas of York County
                  Criminal Division No(s).: CP-67-CR-0002131-1997

BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                                   FILED JULY 29, 2014

        Appellant, Daron l. Nesbit, takes this counseled appeal from the order

entered in the York County Court of Common Pleas denying his third petition

filed pursuant to the Post Conviction Relief Act1

contends the PCRA court erred in denying his petition without a hearing

because     his    sentence   of   life   without   the    possibility   of   parole   was

unconstitutional under Miller v. Alabama, 132 S. Ct. 2455 (2012), and

under Article I, Section 13 of the Pennsylvania Constitution. We affirm.




*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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      A prior panel of this Court stated the facts and procedural posture of

this case as follows:

         On March 8, 1997, Paul Smith went out with some friends

         going to a bar, the group proceeded to the Majestic
         Restaurant, where Smith went inside to purchase some
         beer. As Smith left the restaurant, he encountered Melisha
         Grimes, and the two stopped to talk. They returned to the
         restaurant so that Grimes could write down her pager
         number for Smith and, while inside, Appellant, then 16
         years old, approached them and a verbal altercation
         occurred. Soon, the confrontation moved out into the
         parking lot and Appellant and Smith began to fight.
         Appellant pulled out a gun and fired two shots at Smith,
         killing him, and then fled.

            Appellant was charged with first-degree murder, third-
         degree murder, voluntary manslaughter, and involuntary
         manslaughter. On November 13, 1997, he was convicted
         of first-degree murder. On December 29, 1997, he was
         sentenced to life imprisonment without parole.        His
         judgment of sentence was affirmed by this Court on March
         31, 1999 and his petition for allowance of appeal to our
         Supreme Court was denied on October 5, 1999.

            On December 21, 2000, Appellant filed a PCRA petition
         and the PCRA court granted a new trial. On November 20,
         2001, following a second jury trial, Appellant was again
         convicted of first-degree murder and sentenced on that
         date by the trial court to a term of life imprisonment.
         Appellant filed a direct appeal to this Court on December
                                                      nt of sentence
         on November 12, 2002. On June 26, 2003, our Supreme


            On February 5, 2004, Appellant filed a pro se PCRA
         petition and JoAnne Floyd, Esquire, was appointed to
         represent him.     On March 26, 2004, [she] filed an
         amended PCRA petition and the PCRA court conducted an
         evidentiary hearing on July 19, 2004. On September 17,

         Court affirmed that order on August 8, 2005. On January


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        20,
        for allowance of appeal.

           That same day, Appellant filed a second pro se PCRA
        petition in which he alleged that Attorney Floyd was
        ineffective for failing to call trial counsel, Mark S.
        Greenberg, and Brian A. March, Ph.D., to testify at the July
        19, 2004 PCRA evidentiary hearing. On March 13, 2006,
        Judge Blackwell, sitting as the PCRA court, appointed Heidi
        R. Freese, Esquire as PCRA counsel. On April 11, 2006,
        Judge Blackwell issued notice pursuant to Rule 907 of the
        Pennsylvania Rules of Criminal Procedure of her intention

        June 16, 2006, [the PCRA court] entered an order


           Appellant timely appealed pro se . . .

Commonwealth v. Nesbit, 1351 MDA 2006, 1365 MDA 2006 (unpublished

memorandum at 2-5) (Pa. Super. Sept. 26, 2007).

     This Court affirmed on September 26, 2007.       Id. at 7.   On July 18,

                                                                   etition for

allowance of appeal. Commonwealth v. Nesbit, 953 A.2d 541 (Pa. 2008).

     On August 1, 2012, Appellant filed the instant pro se PCRA petition.

On August 28, 2012, present counsel entered his appearance. On October

9, 2012, and December 12, 2012, the PCRA court stayed the matter pending

the decisions by the Pennsylvania Supreme Court in Commonwealth v.

Batts, 66 A.3d 286 (Pa. 2013), and Commonwealth v. Cunningham, 81

A.3d 1 (Pa. 2013).    On November 4, 2013, the PCRA court denied the

petition. On

for reconsideration. This timely counseled appeal followed. Appellant filed a



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timely court-ordered Pa.R.A.P. 1025(b) statement of errors complained of on

appeal.     On March 17, 2013 the PCRA court filed a Pa.R.A.P. 1925(a)

opinion.

      On appeal, Appellant raises the following issue for our review:

           Whether the PCRA court erred by dismissing the petition
           without a hearing because one of the issues raised,
           namely, the constitutionality of sentencing juvenile to life
           without the possibility of parole under Article I, Section 13
           of the Pennsylvania Constitution, was of merit and requires
           factual development and/or credibility determinations to be
           properly adjudicated?
                        2



      Before exam

whether the PCRA court had jurisdiction to entertain the underlying PCRA

2
  We note in Commonwealth v. Seskey, 86 A.3d 237 (Pa. Super. 2014),
the appellant argued

           that his life sentence, which was imposed upon him when
           he was a juvenile, violates his right to be free from cruel
           and unusual punishment. It is well-established that such a
           claim constitutes a nonwaivable challenge to the legality of
           the sentence. . . .

                However, the fact that these claims are not waived
           does not mean that we have jurisdiction to review them.

           technically waivable, a legality [of sentence] claim may
           nevertheless be lost should it be raised for the first time in
           an untimely PCRA petition for which no time-bar exception
           applies, thus depriving the court of jurisdiction over the


Id. at 241 (citations omitted).




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Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008) (citation

omitted).

              We . . . turn to the time limits imposed by the PCRA,
        as they implicate our jurisdiction to address any and all of
                                                       tion must be

        judgment of sentence became final, unless the petition
        alleges and the petitioner proves one or more of the
        following statutory 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).

           We emphasize that it is the petitioner who bears the
        burden to allege and prove that one of the timeliness
        exceptions applies. In addition, a petition invoking any of
        the timeliness exceptions must be filed within 60 days of
        the date the claim first could have been presented. 42
        Pa.C.S. § 9545(b)(2). . . .

Id. at 719-20 (some citations omitted) (emphasis added).

     Our Supreme Court has stated:


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         This Court has repeatedly stated that the PCRA timeliness
         requirements are jurisdictional in nature and, accordingly,
         a PCRA court cannot hear untimely PCRA petitions. In
         addition, we have noted that the PCRA confers no
         authority upon this Court to fashion ad hoc equitable
         exceptions to the PCRA time-bar in addition to those
         exceptions expressly delineated in the Act. We have also

         constitutionally valid.

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations

and quotation marks omitted).

      In the instant case, Appellant was sentenced on November 20, 2001.

This Court affirmed his judgment of sentence on November 12, 2002. On

                                                                n for allowance



2003, ninety days after the Pennsylvania Supreme Court denied his petition

for allowance of appeal.       See

judgment 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

                                                               writ of certiorari

seeking review of a judgment of a lower state court that is subject to

discretionary review by the state court of last resort is timely when it is filed

with the Clerk within 90 days after entry of the order denying discretionary




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                                                             3
review[                                                          to file a PCRA

petition. See 42 Pa.C.S. § 9545(b)(1) (providing that PCRA petition must be

filed within one year of date judgment becomes final).     Appellant filed the

instant petition on August 1, 2012; therefore, it is patently untimely. Thus,

we review whether his petition alleges and proves, as Appellant contends,

the exception at Section 9545(b)(1)(iii). See 42 Pa.C.S. § 9545(b)(1)(iii);

Robinson, 837 A.2d at 1161.

      Appellant avers that his PCRA petition was timely filed on August 1,

2012, because it was filed within sixty days of the United States Supreme

                   Miller

      In Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), cert.

den., ___ S. Ct. ___, 2014 WL 797250 (Jun. 9, 2014), our Supreme Court

held that Miller was not retroactive and opined:

          Here, applying settled principles of appellate review,

                    proscription of the imposition of mandatory life-
          without-parole sentences upon offenders under the age of
          eighteen at the time their crimes were committed must be
          extended to those whose judgments of sentence were final
          as of the time of          announcement.

Id. at 11.

      The PCRA court reasoned tha

Pennsylvania decision in Commonwealth v. Cunningham, this Court must


3
  September 24, 2004 fell on a Sunday. Therefore, Appellant had until
September 25, 2004 to file his PCRA petition. See 1 Pa.C.S. § 1908.



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Op., 11/4/13, at 2. We agree.

     Our Pennsylvania Supreme Court specifically held that Miller did not

apply retroactively.   See Cunningham, 81 A.3d at 11.     Therefore, the




claims.   See Robinson

of legal error. See Marshall, 947 A.2d at 719.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/29/2014




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