J-S28015-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                        v.

MICHAEL A. LEHMAN,

                        Appellant                   No. 1208 MDA 2014


                  Appeal from the PCRA Order June 19, 2014
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0002000-1988


BEFORE: BOWES, ALLEN, and LAZARUS, JJ.

MEMORANDUM BY BOWES, J.:                              FILED JUNE 15, 2015

      Michael A. Lehman appeals from the June 19, 2014 order denying as

untimely his petition filed pursuant to the Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. For the reasons set forth herein, we

affirm.

      When he was fourteen years old, Appellant, along with three co-

defendants,    was   charged   with   murder,   burglary,   robbery,   criminal

conspiracy, and criminal homicide relating to the murder of Kwame Beatty

on June 18, 1988.     In January 1990, Appellant was tried as an adult and

convicted by a jury of all charges, including first-degree murder. Later that

year, the trial court imposed the mandatory sentence of life imprisonment

without parole, as well as a consecutive five to ten year sentence for

burglary and concurrent sentences of three to six years for each robbery and
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criminal conspiracy count. Appellant filed a direct appeal from the judgment

of   sentence,   which   this   Court    affirmed   on   December   27,   1991.

Commonwealth v. Lehman, 606 A.2d 1231 (Pa.Super. 1991) (unpublished

memorandum).

      Appellant, represented by counsel, filed his first PCRA petition on

October 8, 1998. That petition as amended was denied on May 26, 1999.

This Court affirmed. Commonwealth v. Lehman, 754 A.2d 19 (Pa.Super.

2000) (unpublished memorandum). Following that dismissal, our High Court

denied allowance of appeal on July 20, 2000. Commonwealth v. Lehman,

764 A.2d 1066 (Pa. 2000).

      Appellant’s second collateral petition was filed on July 1, 2010 and

dismissed as untimely by the PCRA court on August 26, 2010. This Court

upheld the dismissal, Commonwealth v. Lehman, 34 A.3d 221 (Pa.Super.

2011) (unpublished memorandum), and our High Court again denied

allowance of appeal on December 20, 2011. Commonwealth v. Lehman,

34 A.3d 827 (Pa. 2011).

      Appellant’s third collateral petition, which he filed on August 21, 2012,

was dismissed on November 20, 2013, by the Honorable Michael E. Bortner.

Appellant thereafter amended that petition to assert that Appellant was

entitled to relief under the Supreme Court’s decision in Miller v. Alabama,

132 S. Ct. 2455 (2012), which prohibits the imposition of a mandatory term

of life imprisonment on juvenile homicide offenders. That amended petition


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generated an order staying the motion pending a decision by the

Pennsylvania Supreme Court in Commonwealth v. Cunningham, 81 A.3d

1 (Pa. 2013), in which our High Court ultimately held that the Miller

prohibition did not apply retroactively to collateral appeals.   Based on the

resolution of Cunningham, Judge Bortner dismissed Appellant’s petition as

untimely.

      Appellant filed this timely appeal of that dismissal. He complied with

the court’s order to file a Pa.R.A.P. 1925(b) statement of errors complained

of on appeal, and the PCRA court filed its responsive Pa.R.A.P. 1925(a)

opinion shortly thereafter. Appellant’s issues are now ready for our review.

      Appellant raises three issues on appeal:

   1. Despite the ruling in Commonwealth v. Cunningham, did the
      lower court judge abuse his discretion by refusing to grant
      Appellant a new sentencing hearing because the currently
      imposed sentence of mandatory life without parole violates the
      Eighth and Fourteenth Amendments to the United States
      Constitution?

   2. Did the lower court judge abuse his discretion by not granting
      the Appellant a new sentencing hearing pursuant to Article 1,
      Section 1, and Article 1, Section 13 of the Pennsylvania
      Constitution, thereby violating Appellant’s right to due process,
      equal protection, and to be free from cruel punishments?

   3. Did the Appellant preserve all of the issues presented in the
      statement of matters complained of on appeal in the amended
      Post Conviction Relief Act petition?

Appellant’s brief at 3.




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      In reviewing a PCRA appeal, we consider the record “in the light most

favorable to the prevailing party at the PCRA level.”      Commonwealth v.

Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).           In performing this

review, we consider the evidence of record and the factual findings of the

PCRA court. Id. We afford “great deference to the factual findings of the

PCRA court and will not disturb those findings unless they have no support in

the record.”   Id.   Accordingly, so long as a PCRA court’s ruling is free of

legal error and is supported by record evidence, we will not disturb its

decision. Id. Where the issue presents a question of law, “our standard of

review is de novo and our scope of review is plenary.” Id.

      A PCRA petition is untimely if it is filed more than one year after the

date of judgment of sentence becomes final. 42 Pa.C.S. § 9545. This Court

is therefore without jurisdiction to evaluate a facially untimely petition unless

the petitioner can prove that it falls within one of the three exceptions to the

PCRA’s one year time-bar: 1) failure to raise a claim is the result of

governmental interference, 2) facts were unknown to and could not have

been learned by the petitioner, and 3) the sentence interferes with a

constitutional right recognized by either the Supreme Court of the United

States or the Supreme Court of Pennsylvania after one year following

petitioner’s conviction and that court has held to apply such recognition

retroactively. 42 Pa.C.S. § 9545. A facially untimely petition that does not




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plead and prove any of the three exceptions is time-barred and is to be

dismissed.

      Herein, Appellant’s issues rest solely upon questions of law. Appellant

argues that the imposition of such a sentence violated his Eighth

Amendment and Fourteenth Amendment liberties. Appellant’s brief at 7. In

light of Cunningham, the Commonwealth maintains that, because neither

the United States Supreme Court nor our High Court has held that Miller is

retroactive, Appellant is not entitled to relief on this basis. Thus, he does

not satisfy any of the three exceptions to the PCRA’s time limitations. We

agree.

      Appellant’s petition was filed almost twenty years after judgment of

sentence became final.     Because that petition is facially untimely and

because Appellant raises no argument that he satisfies any of the three

exceptions to the PCRA’s one-year time-bar, we have no jurisdiction to

address the issues he presents. We consequently find that the PCRA court

did not err in denying and dismissing Appellant’s time-barred petition for

post-conviction relief.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/15/2015




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