J-S59043-14


NON-PRECEDENTIAL DECISION                SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,               :   IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                    Appellee                :
            v.                              :
                                            :
LARRY STEPHENSON,                           :
                                            :
                    Appellant               :   No. 1357 EDA 2014

                   Appeal from the Order entered February 4, 2014,
                  in the Court of Common Pleas of Delaware County,
                  Criminal Division, at No: CP-23-CR-0100982-1974

BEFORE:          SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                  FILED SEPTEMBER 09, 2014

       Larry Stephenson (Appellant) pro se appeals from the February 4,

2014 order which denied his petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

       In October 1973, Appellant, 24 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.

       On August 15, 2013, Appellant filed a pro se PCRA petition, which is

the subject of this appeal. On November 27, 2013, the PCRA court filed a

notice of intent to dismiss the petition as untimely pursuant to Pa.R.Crim.P.

907.      Appellant responded, and the petition was dismissed by order of

February 4, 2014.

*Retired Senior Judge assigned to the Superior Court.
J-S59043-14


     Appellant timely filed a notice of appeal. Both Appellant and the PCRA

court complied with Pa.R.A.P. 1925. Appellant presents three questions to

this Court on appeal.

     I.     Did the [PCRA] court err in not granting a resentencing

            mandatory life-without-parole terms for adults in non-
            homicide and homicide cases violate state and federal
            equal protection clauses, as well as Art. 7 of the Universal
            Declaration of Human Rights?

     II.    Did the [PCRA] court err in not granting a resentencing

            mandatory life-without-parole terms for individuals over
            age 17 but below age 25 violates the United States
            C
            Declaration of Human Rights, as well as Art. 1, Section 13
            of the Pennsylvania Constitution?

     III.   Did the [PCRA] court err in not granting a resentencing
                                                       er whether a
                                -
            age changes the possible punishment for first/second
            degree murder?



                                                                       ard of

review.

     On appeal from the denial of PCRA relief, our standard of review
     calls for us to determine whether the ruling of the PCRA court is
     supported by the record and free of legal error. The PCRA
     court's findings will not be disturbed unless there is no support
     for the findings in the certified record. The PCRA court's factual
     determinations are entitled to deference, but its legal
     determinations are subject to our plenary review.




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J-S59043-14


Commonwealth v. Nero, 58 A.3d 802, 805 (Pa. Super. 2012) (quotations

and citations omitted).

      The   timeliness    of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa. Super. 2011).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

of sentence became final unless the petition alleges, and the petitioner

proves, that an exception to the time for filing the petition is met.            42

Pa.C.S. § 9545.

      Applying this law to the case at hand, w



untimely: his judgment of sentence became final in 1998.1 Appellant alleges

that his petition is timely based upon the United States Supreme Cour

holding in Miller v. Alabama, 132 S.Ct. 2455 (2013). Presumably,

Appellant is asserting that the Miller decision satisfies the following



recognized by the Supreme Court of the United States or the Supreme Court




1

became final on January 5, 1998, when the 90 day period expired in which
Appellant had to file a writ of certiorari to the United States Supreme Court
after our Supreme Court affirmed his judgment of sentence.
Commonwealth v. Stephenson, 764 A.2d 1129 (Pa. Super. 2000)
(unpublished memorandum at 5).


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J-S59043-14


of Pennsylvania after the time period provided in this section and has been

                                                                   9545(b)(iii).



petition. First, the holding of Miller

sentencing scheme that mandates life in prison without possibility of parole

for juvenile                    Miller, 132 S.Ct. at 2469 (emphasis added).

Appellant   was    not    a   juvenile    at   the   time   this     incident   occurred.

Furthermore, in Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013),

cert. denied, 134 S.Ct. 2724 (2014), our Supreme Court held that the United

                                         Miller does not apply retroactively. Thus,

even if Appellant were a juvenile at the time of the murder, Miller would not

entitle him to relief.2

      Because Appellant did not plead facts that would establish an



dismissed Ap

      Order affirmed.




2
  Because Appellant untimely filed his petition, we need not address his third
issue, where App                                                             -




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J-S59043-14


Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 9/9/2014




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