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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
ROBERT THEODORE WILSON,                  :         No. 2761 EDA 2016
                                         :
                         Appellant       :


                   Appeal from the PCRA Order, July 28, 2016,
               in the Court of Common Pleas of Delaware County
                Criminal Division at No. CP-23-CR-0002353-1996


BEFORE: BOWES, J., OTT, J. AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED APRIL 19, 2017

        Robert Theodore Wilson appeals, pro se, from the order entered

July 28, 2016, dismissing his serial PCRA1 petition.2 We affirm.




1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
2
  Although the order was dated and docketed July 27, 2016, it was not sent
to appellant by first class mail until the following day, July 28, 2016.
Therefore, the notice of appeal had to be filed by Monday, August 29, 2016.
See Pa.R.A.P. 108(a)(1) (day of entry of an order shall be the day the clerk
of court mails or delivers copies of an order to the parties); Pa.R.A.P. 903(a)
(notice of appeal shall be filed within 30 days after entry of the order from
which the appeal is taken); 1 Pa.C.S.A. § 1908 (whenever the last day of the
appeal period falls on a weekend or on any legal holiday, such day shall be
omitted from the computation of time). Appellant’s pro se notice of appeal
was time-stamped and docketed on August 29, 2016. (Docket #85.)
Therefore, appellant’s notice of appeal was timely filed even without
application of the prisoner mailbox rule. See Commonwealth v. Jones,
700 A.2d 423 (Pa. 1997), for an explanation of the prisoner mailbox rule.
J. S20027/17


        On March 19, 1996, following a jury trial, appellant was found guilty of

first-degree murder and criminal conspiracy relating to the shooting death of

Jamar Prattis on June 29, 1995. It is undisputed that appellant was born on

November 27, 1975, and was 19 years, 7 months old at the time of the

murder.     On April 22, 1996, appellant was sentenced to life imprisonment

without the possibility of parole as a result of those convictions.

        Appellant filed a timely direct appeal, and on July 25, 1997, this court

affirmed the judgment of sentence. On November 25, 1997, our supreme

court denied allocatur.        Commonwealth v. Wilson, 701 A.2d 785

(Pa.Super. 1997) (unpublished memorandum), appeal denied, 704 A.2d

637 (Pa. 1997). Therefore, appellant’s judgment of sentence became final

for PCRA purposes on February 23, 1998, when the 90-day period to file a

petition for writ of certiorari in the United States Supreme Court expired.

See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct. Rule 13, 28 U.S.C.A. (petition

for writ of certiorari is deemed timely when it is filed within 90 days after

denial of allocatur). The most recent amendments to the PCRA, effective

January 16, 1996, provide a PCRA petition, including a second or subsequent

petition, shall be filed within one year of the date the underlying judgment

becomes final.     42 Pa.C.S.A. § 9545(b)(1).     As such, the instant petition,

appellant’s fourth, is manifestly untimely unless appellant can plead and

prove    that one    of the   three   statutory   exceptions   to   the   one-year

jurisdictional time-bar applies. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).



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      Appellant   relies   on   Section    9545(b)(1)(iii),    the   after-recognized

constitutional right exception. Appellant claims that he is entitled to relief

based on the U.S. Supreme Court’s decision in Miller v. Alabama, 567 U.S.

460 (2012), which held that a sentence of life imprisonment without the

possibility of parole is unconstitutionally cruel and unusual punishment when

imposed upon defendants convicted of murder who were “under the age of

18 at the time of their crimes,” and the Supreme Court’s recent decision in

Montgomery v. Louisiana,              U.S.       , 136 S.Ct. 718, 193 L.Ed.2d 599

(2016), which held that its decision in Miller applies retroactively to cases

on state collateral review.

      Appellant acknowledges that he was 19 years old at the time of the

murder.    Nevertheless, appellant argues that the protections in Miller

should be extended to him since some of the same considerations apply.

Appellant argues that the bright-line delineation between those defendants

who were under 18 years of age at the time of the offense and those who

were over 18 years of age is arbitrary and violates equal protection.

(Appellant’s brief at 12.) According to appellant, the brains of 19-year-olds

are also not yet fully developed and, therefore, they are less culpable. (Id.

at 21.)

      The identical argument was recently addressed by this court in

Commonwealth        v.     Furgess,    149      A.3d   90,    94   (Pa.Super.   2016)

(“petitioners who were older than 18 at the time they committed murder are



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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)”), citing Commonwealth v. Cintora, 69 A.3d 759

(Pa.Super. 2013). As such, the PCRA court correctly concluded that it lacked

jurisdiction to consider appellant’s untimely PCRA petition.   We, therefore,

affirm the PCRA court’s order denying appellant post-conviction relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/19/2017




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