J-S29045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                               :          PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    STEVEN MARGRETTA,                          :
                                               :
                      Appellant                :     No. 2451 EDA 2016

                    Appeal from the PCRA Order July 6, 2016
                In the Court of Common Pleas of Monroe County
               Criminal Division at No(s): CP-45-CR-000086-1995


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

MEMORANDUM BY STEVENS, P.J.E.:                               FILED May 19, 2017

        Appellant, Steven Margretta, appeals from the order of the Monroe

County Court of Common Pleas, which dismissed as untimely his serial

petition filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.

§§ 9541-9546. We affirm.

        Appellant   pled    guilty   to   homicide    and   was   sentenced   to   life

imprisonment on February 21, 1996. Appellant did not file a direct appeal.

On March 1, 2002, he filed his first PCRA petition. The PCRA court denied

Appellant’s counseled petition on July 10, 2002, and, on July 10, 2002, this

Court entered a judgment order affirming the PCRA court’s order, as

Appellant had filed his petition over five years after his judgment of sentence


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S29045-17



became final, making it patently untimely. The Pennsylvania Supreme Court

denied Appellant’s petition for allowance of appeal on February 20, 2004.

See Commonwealth v. Margretta, 830 A.2d 1049 (Pa.Super. 2003),

appeal denied, 844 A.2d 552 (Pa. 2004).

     On April 24, 2007, Appellant filed his second pro se PCRA petition,

which the PCRA court dismissed as untimely on May 30, 2007. On appeal,

we affirmed the PCRA court’s order.    Commonwealth v. Margretta, No.

1485 EDA 2007, unpublished memorandum at *1-2, 8 (Pa.Super. filed April

22, 2008). Appellant did not seek review in our Supreme Court.

     On April 30, 2012, Appellant filed his third pro se PCRA petition and an

accompanying “Nunc Pro Tunc Motion in Support of (PCRA) Time/Bar Issue,”

which the PCRA court denied as untimely after issuing Pa.R.Crim.P. 907

notice of its intent to dismiss Appellant’s requests for relief without a

hearing.   This Court treated Appellant’s filings as two PCRA petitions and

affirmed the lower court’s order dismissing both as untimely.           See

Commonwealth       v.   Margretta,    No.   2212   EDA   2012,   unpublished

memorandum, (Pa.Super. filed April 11, 2013).

     Appellant filed this pro se PCRA petition, his fourth, on March 21,

2016, seeking relief under Miller v. Alabama, 567 U.S. 460, 132 S.Ct.

2455, 183 L.Ed.2d 407 (2012) and Montgomery v. Louisiana, ___ U.S.

___, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). The PCRA court issued a Rule

907 notice on April 25, 2016.    Among the court’s reasons supporting its

intent to dismiss was that Miller applies only to juvenile offenders, whereas

                                     -2-
J-S29045-17



Appellant was an adult at the time he killed his victim. Appellant could not,

therefore,   avail   himself   of   Section   9545(b)(1)(iii)’s   after-recognized

constitutional right exception to the PCRA time bar, the court concluded. By

its Order of July 6, 2016, the PCRA court dismissed Appellant fourth petition

for relief under the PCRA.     On August 5, 2016, Appellant filed this pro se

appeal.

      On August 11, 2016, the PCRA court ordered Appellant to file a concise

statement per Pa.R.A.P. 1925(b), and it thereafter granted Appellant’s

motion for an extension of time in which to file the concise statement.

However, Appellant never complied with the court’s order.

      On appeal, Appellant does not address the PCRA court's Pa.R.A.P.

1925(a) Opinion that his failure to file a court-ordered 1925(b) statement

resulted in waiver of his eligibility for appellate review of any issues raised in

his petition.   Rule 1925 of the Rules of Appellate Procedure provides, in

pertinent part:

      (b) Direction to file statement of errors complained of on
      appeal; instructions to the appellant and the trial court.—
      If the judge entering the order giving rise to the notice of appeal
      (“judge”) desires clarification of the errors complained of on
      appeal, the judge may enter an order directing the appellant to
      file of record in the trial court and serve on the judge a concise
      statement of the errors complained of on appeal (“Statement”).
      ...
      (3) Contents of order.—The judge's order directing the filing and
      service of a Statement shall specify:
      ...
      (iv) that any issue not properly included in the Statement timely
      filed and served pursuant to subdivision (b) shall be deemed
      waived.

                                       -3-
J-S29045-17


      ...
      (4) Requirements; waiver.
      ...
      (vii) Issues not included in the Statement and/or not raised in
      accordance with the provisions of this paragraph (b)(4) are
      waived.

Pa.R.A.P. 1925(b)(3)(iv), (4)(vii).

      Rule 1925’s mandate is reflected in interpretative decisional law of the

Pennsylvania Supreme Court, which has held that “in order to preserve their

claims for appellate review, appellants must comply whenever the trial court

orders them to file a Statement of Matters Complained of on Appeal

pursuant to Pa.R.A.P. 1925.    Any issues not raised in a Pa.R.A.P. 1925(b)

statement will be deemed waived.” Commonwealth v. Castillo, 888 A.2d

775, 780 (Pa. 2005) (quoting Commonwealth v. Lord, 719 A.2d 306 (Pa.

1998)).   This bright line rule applies to pro se appellants.      See, e.g.,

Commonwealth v. Schofield, 888 A.2d 771, 774 (Pa. 2005).

      Our review of the record confirms that Appellant failed to file a court-

ordered Rule 1925(b) Statement.       Accordingly, we agree with the PCRA

court's opinion that Appellant has waived his eligibility for appellate review.

See Commonwealth v. Freeland, 106 A.3d 768, 776 (Pa. Super. 2014)

(“A pro se litigant must comply with the procedural rules set forth in the

Pennsylvania Rules of the Court [and] [t]his Court may quash or dismiss an

appeal if an appellant fails to conform with the requirements set forth in the

Pennsylvania Rules of Appellate Procedure”).




                                      -4-
J-S29045-17



      Even if we were to review Appellant’s briefed claims, we would

conclude we lack jurisdiction to address them on the merits because

Appellant’s present PCRA petition was patently untimely.

      The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016).              A PCRA

petition, including a second or subsequent petition, shall be filed within one

year of the date the underlying judgment of sentence becomes final.        42

Pa.C.S.A. § 9545(b)(1).    A judgment of sentence is deemed 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.A. § 9545(b)(3). The

statutory exceptions to the PCRA time-bar excuse the late filing of a petition

under very limited circumstances; a petitioner asserting a timeliness

exception must file a petition within 60 days of when the claim could have

been presented. 42 Pa.C.S.A. § 9545(b)(1-2).

      Instantly, Appellant's judgment of sentence became final on or about

May 20, 2004, upon the expiration of 90 days allowed for filing a petition for

certiorari with the United States Supreme Court. See U.S.Sup.Ct. Rule 13.

Appellant filed the current pro se PCRA petition on August 5, 2016, more

than 12 years after his judgment of sentence became final, which is patently

untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant attempts to invoke the

“new constitutional right” exception at Section 9545(b)(1)(iii), insisting

Miller/Montgomery affords him relief, but he admits he was 21 years old,

                                    -5-
J-S29045-17



and   no     longer   a    juvenile,   at   the   time      of     his   offenses.     Thus,

Miller/Montgomery relief does not apply to Appellant.

      Moreover, this Court has rejected Appellant's argument that courts

should extend Miller/Montgomery relief to those under 25 years old

because      the   brain   is   not    developed    fully        until   that   age.    See

Commonwealth v. Furgess, 149 A.3d 90 (Pa.Super. 2016) (holding 19-

year-old appellant was not entitled to relief under Miller/Montgomery on

collateral review; rejecting argument that he should be considered “technical

juvenile”). Thus, Appellant's current petition remains untimely. Accordingly,

we affirm.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/19/2017




                                            -6-
