J-S59019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LARRY STEPHENSON                           :
                                               :
                       Appellant               :   No. 564 EDA 2019

             Appeal from the PCRA Order Entered February 7, 2019
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0100982-1974


BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY NICHOLS, J.:                          FILED NOVEMBER 27, 2019

        Appellant Larry Stephenson appeals pro se from the order dismissing

his fourth petition pursuant to the Post Conviction Relief Act1 (PCRA) as

untimely. Appellant contends he has overcome the time-bar of the PCRA by

asserting a newly recognized constitutional right under Miller v. Alabama,

567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

For the reasons below, we affirm.

        This Court summarized the relevant facts as follows:

        In October 1973, Appellant, [who was twenty-three] years old at
        the time, was involved in the robbery of a bar that resulted in a
        patron being shot and killed. He was convicted of several
        offenses, including first-degree murder. On April 25, 1975,
        Appellant was sentenced to life imprisonment without the
        possibility of parole.


____________________________________________


1   42 Pa.C.S. §§ 9541-9546.
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Commonwealth v. Stephenson, 1357 EDA 2014, at 1 (Pa. Super. filed Sept.

9, 2014) (unpublished mem.).

      The Pennsylvania Supreme Court affirmed Appellant’s judgment of

sentence on October 7, 1977, and Appellant did not seek further review.

Commonwealth v. Stevenson, 378 A.2d 822 (Pa. 1977). Between 1996

and 2014, Appellant filed three unsuccessful PCRA petitions.

      On March 24, 2016, Appellant, acting pro se, filed his fourth PCRA

petition.   In his petition, Appellant argued that the holdings of Miller and

Montgomery should be extended to his case because his brain had not fully

matured at the time of the offense. The PCRA court appointed counsel, who

subsequently filed a “no merit” letter and an application to withdraw

representation.    On January 4, 2019, the PCRA court granted counsel’s

application and provided Appellant with a Pa.R.Crim.P. 907 notice of its

intention to dismiss the petition without a hearing. Appellant filed a response

on January 25, 2019, but the PCRA court dismissed Appellant’s petition as

untimely on February 7, 2019.

      Appellant timely filed notice of appeal and a court-ordered Pa.R.A.P.

1925(b) statement. The PCRA court filed a responsive opinion.

      Appellant presents one issue for our review:

      Is the PCRA court’s ruling, and by extension this Court’s en banc
      ruling in Commonwealth v. Avis Lee[, 206 A.3d 1 (Pa. Super.
      2019) (en banc),] contrary to the Eighth Amendment of the
      Constitution of the United States and the Pennsylvania
      Constitution insofar as the Avis Lee decision is decided
      incorrectly?


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Appellant’s Brief at 2.

      Initially we note that the timeliness requirement for PCRA petitions “is

mandatory and jurisdictional in nature.” Commonwealth v. Taylor, 67 A.3d

1245, 1248 (Pa. 2013) (citation omitted). “The question of whether a petition

is timely raises a question of law, and where a petitioner raises questions of

law, our standard of review is de novo and our scope of review plenary.”

Commonwealth v. Hudson, 156 A.3d 1194, 1197 (Pa. Super. 2017)

(citation omitted), appeal denied, 170 A.3d 1007 (Pa. 2017).

      A PCRA petition is timely if it is “filed within one year of the date the

judgment becomes final.” 42 Pa.C.S. § 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 the review.” 42 Pa.C.S. § 9545(b)(3).

      Courts may consider a PCRA petition filed more than one year after a

judgment of sentence becomes final only if the petitioner pleads and proves

one of the following three 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

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            provided in this section and has been held by that court to
            apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).

      Here, Appellant’s judgment of sentence became final in January of 1978,

ninety days after the Pennsylvania Supreme Court affirmed his conviction and

the time to file a petition for writ of certiorari in the United States Supreme

Court elapsed.   See generally Sup. Ct. R. 22(1) (1954) (repealed 1980).

Appellant’s current petition is facially untimely, and this Court cannot exercise

jurisdiction unless one of the statutory exceptions to the PCRA’s time-bar

applies.

      In his sole issue, Appellant attempts to invoke the newly recognized

constitutional right exception. Appellant argues that, although he was twenty-

three years old at the time of the offense, the constitutional protection against

cruel and unusual punishment articulated in Miller should be extended to his

case because of his diminished mental capacity. See generally Appellant’s

Brief at 2-4.    Appellant acknowledges that precedent is not in his favor.

“Appellant’s objective is to exhaust Pennsylvania appeals in hopes that the

Supreme Court of Pennsylvania or the Supreme Court of the United States will

extend . . . youthful offender jurisprudence to a class of prisoner that includes

[A]ppellant.” Id. at 3.

      We have previously explained that “Montgomery merely made Miller

retroactive for juvenile offenders whose judgments of sentence had already

became final.    It did not extend Miller’s holding to those individuals who



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committed     homicides   after   they   reached   the   age   of   [eighteen].”

Commonwealth v. Montgomery, 181 A.3d 359, 366 (Pa. Super. 2018) (en

banc) (citation omitted), appeal denied, 190 A.3d 1134 (Pa. 2018).

Accordingly, this Court has held that “age is the sole factor in determining

whether Miller applies to overcome the PCRA time-bar,” and it has “decline[d]

to extend its categorical holding.” Lee, 206 A.3d at 11.

     Instantly, Appellant was twenty-three years old at the time of the

homicide, rendering Miller and Montgomery inapplicable to his case. See

id.; Montgomery, 181 A.3d at 366. Therefore, Appellant failed to plead and

prove a timeliness exception, and the PCRA court lacked jurisdiction to

consider his claims.   Accordingly, the PCRA court did not err in dismissing

Appellant’s petition without a hearing. See Hudson, 156 A.3d at 1197.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/27/19




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