J-S44045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ANNTONESA WOODARD,                       :
                                          :
                    Appellant             :       No. 2711 EDA 2017

                  Appeal from the PCRA Order July 17, 2017
            in the Court of Common Pleas of Philadelphia County,
            Criminal Division at No(s): CP-51-CR-0905851-1998

BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                      FILED OCTOBER 18, 2018

      Anntonesa Woodard (“Woodard”), pro se, appeals from the Order

dismissing her second Petition for relief filed pursuant to the Post Conviction

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

      On October 20, 2000, Woodard pled guilty to second-degree murder,

kidnapping, arson, and possession of an instrument of crime. The trial court

sentenced Woodard to an aggregate term of life in prison. This Court affirmed

the judgment of sentence in part, and remanded for resentencing, based upon

the fact that the sentence for kidnapping should have merged with the

sentence for second-degree murder. See Commonwealth v. Woodard, 833

A.2d 1153 (Pa. Super. 2003) (unpublished memorandum). On December 29,

2003, our Supreme Court denied allowance of appeal. See Commonwealth

v. Woodard, 841 A.2d 531 (Pa. 2003).
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      On September 28, 2004, Woodard filed her first PCRA Petition, which

the PCRA court denied. Her appeal was dismissed for her failure to file a brief.

      On August 20, 2012, Woodard filed the instant PCRA Petition.

Eventually, on April 10, 2017, the PCRA court issued a Pa.R.Crim.P. 907

Notice. Thereafter, the PCRA court dismissed the Petition. Woodard 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. Fears, 86 A.3d 795,

803 (Pa. 2014).

      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

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).

      In this case, Woodard’s judgment became final on March 29, 2004, after

the time to seek review with the United States Supreme Court had expired.

See SUP. CT. R. 13 (allowing ninety days to file a petition for a writ of

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certiorari). Accordingly, Woodard had until March 29, 2005, to file a timely

PCRA petition. Woodard’s August 20, 2012 Petition is thus facially untimely

under the PCRA.

       However, Pennsylvania courts may consider an untimely PCRA petition

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

set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any PCRA petition invoking one

of these exceptions must “be filed within 60 days of the date the claim could

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

       Here, Woodard invokes the newly-recognized constitutional right

exception, based upon Miller v. Alabama, 567 U.S. 460 (2012). Brief for

Appellant at 4. In Miller, the Supreme Court held that sentencing schemes

that mandate life in prison without parole for defendants who committed their

crimes while under the age of eighteen violate the Eighth Amendment’s

prohibition on cruel and unusual punishment. Id. at 465. The Court reasoned

that in light of a juvenile’s diminished culpability and heightened capacity for

change, mandatory juvenile sentencing schemes pose too great a risk of

disproportionate punishment, in contravention of the Eighth Amendment. Id.

at 479.1 Woodard argues that Miller should extend to offenders over the age

of 18 when the crime was committed, because research indicates that young

adults are not fully mentally and emotionally mature until over the age of 21.

Brief for Appellant at 5.
____________________________________________


1 In Montgomery v. Louisiana, 136 S. Ct. 718, 736 (2016), the United
States Supreme Court held that its decision in Miller applies retroactively.

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       Miller is inapplicable to this case, as Woodard was 23 years old when

she committed the crimes. See Commonwealth v. Furgess, 149 A.3d 90,

94 (Pa. Super. 2016) (noting that “petitioners who were older than 18 at the

time they committed murder are 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).”); id. (rejecting appellant’s

argument to extend the Miller holding based upon neuroscientific theories

regarding brain development of persons over the age of 18).2

       Accordingly, Woodard failed to meet the requirements of the newly-

recognized constitutional right exception.       Thus, the PCRA court properly

dismissed Woodard’s second PCRA Petition as untimely.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/18




____________________________________________


2We note that an en banc panel of this Court will determine whether Miller
applies only to individuals under the age of 18 at the time of the offense. See
Commonwealth v. Lee, 1891 WDA 2016 (reargument granted Mar. 9,
2018). However, as no decision has been filed, we are bound by Furgess.

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