J-S92027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

GREG DEWAYNE HERRING

                            Appellant                  No. 766 WDA 2016


                     Appeal from the PCRA Order May 6, 2016
                In the Court of Common Pleas of Allegheny County
               Criminal Division at No(s): CP-02-CR-0010184-2005


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

MEMORANDUM BY MOULTON, J.:                             FILED APRIL 11, 2017

       Greg Dewayne Herring appeals, pro se, from the May 6, 2016 order

dismissing as untimely his petition filed pursuant to the Post Conviction

Relief Act, 42 Pa.C.S. §§ 9541-9546. We affirm.

       On April 26, 2006, a jury convicted Herring of second-degree murder,

robbery (serious bodily injury), and criminal conspiracy.1 On July 14, 2006,

the trial court sentenced Herring to life imprisonment without the possibility

of parole.     Herring filed a notice of appeal, and on October 1, 2007, this

Court affirmed. Herring did not file a petition for allowance of appeal with

the Pennsylvania Supreme Court.

____________________________________________


       *
           Retired Senior Judge assigned to the Superior Court.
       1
           18 Pa.C.S. §§ 2501(a), 3701(a)(1) and 903(a)(1), respectively.
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       On September 3, 2008, Herring filed a timely PCRA petition.              On

January 5, 2011, the PCRA court dismissed the petition. This Court affirmed

the dismissal on April 16, 2012.          Herring filed a petition for allowance of

appeal, which the Supreme Court denied on August 28, 2012.

       In March 2016,2 Herring filed a second PCRA petition.           On April 7,

2016, the PCRA court issued notice of its intent to dismiss the petition

pursuant to Pennsylvania Rule of Criminal Procedure 907, and, on May 6,

2016, the PCRA court dismissed the petition. On May 18, 2016, Herring filed

a timely notice of appeal.

       Herring raises the following issues on appeal:

           I. DID TRIAL COURT ERR WHEN IT DISMISSED
           [HERRING’S] PETITION WITHOUT A HEARING ON
           [HERRING’S]   CLAIMS   OF  CRUEL   AND  UNUSUAL
           PUNISHMENT, NAMELY THAT THE EIGHTH AMENDMENT
           FORBIDS A SENTENCING SCHEME THAT MANDATES LIFE
           WITHOUT POSSIBILITY OF PAROLE FOR JUVENILE
           OFFENDERS,   WHERE    PENNSYLVANIA’S  MANDATORY
           SENTENCING SCHEME VIOLATES THE PROPORTIONALITY
           PRINCIPLE, IMPOSING LIFE SENTENCES ON JUVENILES
           WITHOUT ANY INDIVIDUALIZED CONSIDERATIONS.

           II. DID TRIAL COURT ERR WHEN IT DISMISSED
           [HERRING’S] PETITION WITHOUT A HEARING ON
           [HERRING’S]  CLAIMS   OF   EQUAL  PROTECTION
           VIOLATIONS, NAMELY THAT THE EQUAL PROTECTION
____________________________________________


       2
         The 2016 PCRA petition contained in the original record does not
have a stamp indicating the date it was received. Herring dated the PCRA
petition March 19, 2016, but it was entered on the docket on March 29,
2016. The record does not indicate when Herring delivered the PCRA
petition to prison authorities for mailing or when the trial court received the
petition.



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         CLAUSE OF THE FOURTEENTH AMENDMENT REQUIRES
         THAT THE DISTINCTION MADE HAVE SOME RELEVANCE
         TO THE PURPOSE FOR WHICH THE CLASSIFICATION IS
         MADE, WHERE ARTICLE V § 16(q)(ii) OF THE
         PENNSYLVANIA CONSTITUTION DEFINES [HERRING] AS A
         JUVENILE.

         III. DID THE TRIAL COURT ERR WHEN IT DISMISSED
         [HERRING’S] PETITION WITHOUT A HEARING [ON
         HERRING’S] CLAIMS OF DUE PROCESS VIOLATIONS,
         NAMELY THAT THE DUE PROCESS CLAUSE GIVES
         [HERRING] THE EIGHTH AMENDMENT PROTECTIONS
         GUARANTEED      UNDER   THE     UNITED     STATES
         CONSTITUTION,     WHERE     NO     INDIVIDUALIZED
         CONSIDERATIONS WERE MADE AND [HERRING] A
         JUVENILE WAS SENTENCED TO LIFE WITHOUT PAROLE.

Herring’s Br. at 4.

      Our standard of review from the denial of a PCRA petition “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).

      It is well settled that “the timeliness of a PCRA petition is a

jurisdictional requisite.”   Commonwealth v. Brown, 111 A.3d 171, 175

(Pa.Super. 2015), app. denied, 125 A.3d 1197 (Pa. 2015). A PCRA petition

“including a second or subsequent petition, shall be filed within one year of

the date the judgment becomes final.”        42 Pa.C.S. § 9545(b)(1).       A

judgment is 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).



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      Herring’s judgment of sentence became final on October 31, 2007,

when his time to petition the Pennsylvania Supreme Court for allowance of

appeal expired. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113(a) (“Except

as otherwise prescribed by this rule, a petition for allowance of appeal shall

be filed with the Prothonotary of the Supreme Court within 30 days after the

entry of the order of the Superior Court or the Commonwealth Court sought

to be reviewed.”).   He had one year from that date, or until October 31,

2008, to file a timely PCRA petition. Therefore, his current petition filed in

March 2016 is facially untimely.

      Herring’s petition remains untimely unless it alleges and proves a

PCRA time-bar exception. Courts may consider a PCRA petition filed more

than one year after a judgment of sentence became final only if the

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

42 Pa.C.S. § 9545(b)(1)(i)-(iii); see Brown, 111 A.3d at 175. In addition,

when invoking an exception to the PCRA time bar, the petition must “be filed

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within 60 days of the date the claim could have been presented.” 42 Pa.C.S.

§ 9545(b)(2).

       In his PCRA petition, Herring argued his petition was timely because

he asserted a constitutional right that was held to apply retroactively.

Herring relied on the United States Supreme Court’s decisions in Miller v.

Alabama, 132 S.Ct. 2455 (2012), and Montgomery v. Louisiana, 136

S.Ct. 718 (2016). In Miller, the Supreme Court held that a sentence of life

imprisonment without the possibility of parole was unconstitutional when

imposed upon defendants who were “under the age of 18 at the time of their

crimes.” 132 S.Ct. at 2460. In Montgomery, the Supreme Court held that

its Miller decision applied retroactively to cases on state collateral review.

Montgomery, 136 S.Ct. at 732.

       Herring was 19 at the time he committed the murder for which he was

convicted.3    We have held that Miller’s prohibition of life without parole

sentences does not apply to those who were not juveniles at the time of the

offense.    See Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa.Super.

2013) (concluding that, for appellants, who were 19 and 21 at time of

offense, “the holding in Miller does not create a newly-recognized




____________________________________________


       3
        Herring was born on October 4, 1984 and committed the offenses at
issue on October 9, 2003.




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constitutional right that can serve as the basis for relief”); 4 see also

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

(reaffirming holding of Cintora that petitioners who were 18 or older “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 sum, because Herring was 19 at the time of the offenses, Miller

does not apply, and Herring has failed to satisfy the new constitutional right

exception to the PCRA time-bar. Therefore, we conclude the PCRA court did

not err in dismissing the petition.

       Order affirmed.




____________________________________________


       4
        In Cintora, this Court rejected the appellants’ argument that it
would violate the equal protection clause to not grant relief pursuant to
Miller. The appellants argued that Miller should apply to those under the
age of 25 “because Miller created a new Eighth Amendment right, that
those whose brains were not fully developed at the time of their crimes are
free from mandatory life without parole sentences, and because research
indicates that the human mind does not fully develop or mature until the age
of 25.” 69 A.3d at 764. The Court noted that the appellants’ “contention
that a newly-recognized constitutional right should be extended to others
does not render their petition timely pursuant to section 9545(b)(1)(iii).”
Id. (emphasis in original).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2017




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