J-S47027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

JOSEPH DYSON

                         Appellant                   No. 3124 EDA 2016


              Appeal from the PCRA Order September 14, 2016
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0005936-1992


BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MOULTON, J.:                     FILED DECEMBER 01, 2017

     Joseph Dyson appeals from the September 14, 2016 order entered in

the Bucks County Court of Common Pleas denying his third petition for relief

filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46.

We affirm.

     The PCRA court set forth the lengthy factual and procedural history of

this case in its Pennsylvania Rule of Appellate Procedure 1925(a) opinion,

which we adopt and incorporate herein.      See Opinion, 11/30/16, at 1-5

(“1925(a) Op.”).

     On appeal, Dyson raises the following issues:
     1. Where Miller [v. Alabama, 132 S.Ct. 2455 (2012),] and
        Montgomery [v. Louisiana, 136 S.Ct. 718 (2016),]
        instruct that sentencing a youth to a mandatory sentence of
        life without possibility of parole, without considering the
        factor of age and its attendant effects, constitutes a denial
J-S47027-17


         of the Eighth Amendment cruel and unusual punishment
         charge, did the lower [c]ourt err in not granting [Dyson] the
         right to be resentenced as the documentary evidence
         reflects that he was like those who were 56 days younger
         than he was?

      2. Where it was clear that [Dyson] is similarly situated to those
         who were 56 days younger than he was, did the lower
         [c]ourt’s failure to extend the Miller/Montgomery holding
         to him violate the equal protection clause?

      3. Where [Dyson] is similarly situated to those 56 days
         younger than he was, did the [lower court’s] failure to
         permit resentencing deny substantive and procedural due
         process, and access to the Courts?

      4. Where the Court did not grant resentencing, were the PCRA
         statute, habeas corpus statute[,] and 18 Pa.C.S. §1102
         unconstitutional as applied to [Dyson]?

Dyson’s Br. at 2-3 (trial court answers omitted).

      Our review of an order denying PCRA relief is limited to determining

“whether the decision of the PCRA court is supported by the evidence of record

and is free of legal error.” Commonwealth v. Melendez-Negron, 123 A.3d

1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s factual

findings “unless there is no support for [those] findings in the certified record.”

Id.

      We must first address the timeliness of Dyson’s PCRA petition.          See

Commonwealth v. Brown, 111 A.3d 171, 175 (Pa.Super.), app. denied, 125

A.3d 1197 (Pa. 2015). In the absence of an applicable exception, a petitioner

must file a PCRA petition, including a second or subsequent petition, within

one year of the date his or her judgment of sentence becomes final.             42

Pa.C.S. § 9545(b)(1). This Court affirmed Dyson’s judgment of sentence on


                                       -2-
J-S47027-17



October 30, 2001, and the Pennsylvania Supreme Court denied allowance of

appeal on June 12, 2002. Dyson did not seek further review in the United

States Supreme Court, so his judgment of sentence became final 90 days

later, on September 10, 2002. Dyson had one year from that date, or until

September 10, 2003, to file a timely PCRA petition. Thus, the instant PCRA

petition, filed on March 22, 2016, was facially untimely.

      To overcome the time bar, Dyson was required to plead and prove one

of the following exceptions: (i) unconstitutional interference by government

officials; (ii) newly discovered facts that could not have been previously

ascertained with due diligence; or (iii) a newly recognized constitutional right

that has been held to apply retroactively. See 42 Pa.C.S. § 9545(b)(1)(i)-

(iii). To invoke one of these exceptions, Dyson must have filed his petition

within 60 days of the date the claim could have been presented.         See 42

Pa.C.S. § 9545(b)(2).

      In his petition, Dyson alleged the new-constitutional-right exception to

the one-year time bar. See 42 Pa.C.S. § 9545(b)(1)(iii). Dyson relied on

Miller, in which the United States Supreme Court held that a sentence of life

imprisonment without the possibility of parole was unconstitutional when

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

crimes.” 132 S.Ct. at 2460. Subsequently, in Montgomery, the Supreme




                                     -3-
J-S47027-17



Court held that Miller applied retroactively to cases on state collateral review.

136 S.Ct. at 736.1

       Here, Dyson was 18 years old at the time he committed the offenses for

which he was convicted.2 This Court has held that Miller’s prohibition of life-

without-parole sentences does not apply to defendants who were 18 years of

age or older at the time of their offenses. See Commonwealth v. Cintora,

69 A.3d 759, 764 (Pa.Super. 2013) (where appellants were 19 and 21 at time

of their offenses, “the holding in Miller [did] not create a newly-recognized

constitutional right that can serve as the basis for relief”); accord

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

Cintora’s holding 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 Section 9545(b)(1)(iii)”). Therefore, because Dyson was 18

years old at the time of his offenses, Miller does not apply.

       In his brief, Dyson contends that even though he was 18 at the time of

his crimes, Miller’s holding should apply to him because “despite his age of
____________________________________________


       1In his petition, Dyson also attempted to assert the newly-discovered-
fact exception to the one-year time bar, see 42 Pa.C.S. § 9545(b)(1)(ii),
arguing that he filed his petition within 60 days of the Montgomery decision.
It is well settled, however, that a judicial decision is not a “new fact” that
qualifies as an exception under the PCRA. See Commonwealth v. Watts,
23 A.3d 980, 987 (Pa. 2011).

       Dyson was born on August 21, 1974 and committed the offenses on
       2

October 16, 1992. At the time of the offenses, he was 18 years and 56 days
old.

                                           -4-
J-S47027-17



18 years and [56] days, he is just as deserving as those under age 18 to be

granted resentencing.” Dyson’s Br. at 15. However, we rejected a similar

argument in Cintora.     In Cintora, the appellants had argued that Miller

should apply to defendants who were under the age of 25 at the time of their

offenses “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.     We stated that the “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).

      Finally, Dyson asserts that even if his PCRA petition is time-barred, he

is entitled to habeas corpus relief. The PCRA court correctly concluded that

Dyson’s “claim falls squarely within the parameters of the PCRA, and . . . he

is not entitled to seek habeas relief outside the PCRA.” 1925(a) Op. at 8. We

agree with and adopt the PCRA court’s cogent reasoning. See id. at 7-8.

      Accordingly, because Dyson failed to plead and prove an exception to

the one-year time bar, the PCRA court properly denied his petition as

untimely.

      Order affirmed.




                                      -5-
J-S47027-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2017




                          -6-
                                                                                      /ir9.1.1ped11/09/2017 11:52 AM




                                                                                    5 9 76,;7-1-7
           IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
                                          CRIMINAL DIVISION


    COMMONWEALTH OF PENNSYLVANIA
                                                                   NO. CP-09-CR.0005936-1992
             vs.

    JOSEPH DYSON


                                                  OPINION

             Joseph Dyson (hereinafter "Appellant") appeals this Court's September 15, 2116, Order

    denying relief under the Post Conviction Relief Act (hereinafter "PCRA"). We file this Opinion

    pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).

      I.     PROCEDURAL HISTORY AND FACTUAL BACKGROUND
             On October 22, 1992, Appellant was charged with Murder of the First Degree,' Robbery,2

    Possessing an Instrument of Crime,3 Possessing a Firearm,4 and Carrying a Firearm without a

    License.5 The facts underlying this case were set forth at length by this Court in a Memorandum

    Opinion and Order dated May 27, 1993, which we now excerpt as follows:

                   On Saturday, October 17, 1992, the body of Thomas James Ellis, Jr. was
            found in an isolated wooded area along the River Road adjacent to the Delaware
            River in Upper Makelleld Township, Bucks County. He Wed as a result of two
            gunshot wounds. One shot was fired at close range and entered his right cheek
            lodging in the base of his skull. The second bullet entered the back right side of his
            neck travelling in a sharply upward angle and lodged at the top of his skull. There
            was evidence of multiple impacts to the victim's face at or around the time of death.
            The victim's 1986 Ford Ranger vehicle was found abandoned in Trenton, New
            Jersey four days later. Large amounts of blood were found in the front driver and



1    18Pa.C.S.   § 2502(a).
2   18 Pa.C.S.   § 3701(a)(1)(i).
3   18 Pa.C.S.   § 907(a).
    18 Pa.C.S.   § 907(b).
5   18 Pa.C.S.   § 6106(a).

                                                                                                         1
  passenger areas of that vehicle and there were also two .25 caliber automatic bullet
  casings found.

         The victim was last seen on Friday night, October 16, 1992, leaving his
  Morrisville residence at approximately 9:08 p.m. after receiving a telephone call.
  He left his residence with a pound of marijuana intending
                                                               to deliver that to the
  defendant. As he left, he stated that he intended to meet Dyson at the
                                                                         McDonald's
  on Route 13,

          The defendant was first interviewed by the police on October
                                                                            18, 1992.
 Initially, he denied meeting Ellis on Friday night. Later, he
                                                               stated that he had met
 Ellis to purchase marijuana and that he had done so at the
                                                             request of an individual
 named "Bugsy." Dyson stated that Ellis arrived at the McDonald's with an
                                                                            unknown
 man, sold him the marijuana and left with that same person. Dyson denied
                                                                                  any
 ability to identify or locate "BugSy."

         Three days later, Louis Sessa, III, a friend of Dyson, was interviewed,
 identified himself as "Bugsy" and related an account of the events of Friday night
 similar to that given by Dyson, differing, however, in some details.

          Dyson was again interviewed by the police on October 21, 1992. Initially,
  he gave several inconsistent accounts of the murder of Ellis. Ultimately,
                                                                                      he
  admitted that on Friday night he and Sessa decided to steal the marijuana from Ellis.
  He stated that he brought his .25 caliber pistol, called Ellis from a
                                                                        telephone booth
  and induced him to meet at the ivIeDonald's. Sessa drove himself and Dyson to the
  /vIcDonald's in Sessa's Pontiac automobile. They arrived before Ellis. When Ellis
  arrived, according to the statement given by Dyson, Dyson instructed Ellis to pull
  around the corner to a darker location, ostensibly for the purpose of making a drug
 transaction. Dyson stated that he got out of Sessa's car with the gun in his pocket
 and entered the passenger side of Ellis's truck, After getting the pound of
                                                                              marijuana
 from Ellis and arguing about "something," he shot Ellis in the face. He described
 watching Ellis's body convulse and his leg until it stopped twitching. He
                                                                                 denied
 firing the second shot in the back of the head. He stated that he dropped the gun in
the truck and returned to Sessa's car as Sessa got into the driver's seat of Ellis's
truck. Dyson stated that Sessa drove the truck to Upper Makefield Township and
that he followed in the Pontiac. Once there, according to Dyson, Sessa dragged the
body out of the truck and into the woods where it, was ultimately found. They then
drove the truck to Trenton where they abandoned it. By Dyson's statement, the two
then drove back to Bucks County, and on the way back, Sessa threw the keys out



                                                                                           2
         of the window into the Delaware River. The two of them then divided the
         marijuana.

                  During the execution of a search warrant on Dyson's residence on
                                                                                          October
          28,1992, marijuana was found in Dyson's bedroom. On that same
                                                                                 date, the murder
         weapon was recovered at Dyson's place of employment
                                                                            where it had been
         concealed. The police were led to that location as a result of a
                                                                                letter written by
         Dyson to his brother. In that letter, Dyson asked his brother
                                                                       to ask a specified person
         to testify to certain facts, and further, to proceed to the
                                                                     place where the gun was
         hidden.in order to retrieve an unidentified item and to dispose
                                                                           of it. The .25 caliber
        pistol which the police:recovered from that hiding;place had been
                                                                                  given to Dyson
        during the summer of 1992. A Breams expert from the
                                                                     Pennsylvania State Police
        examined the pistol and concluded that the bullets removed from the
                                                                                      victim, and
        the casings recovered from the victim's truck, were fired from
                                                                           that pistol.

        The offenses underling his conviction were committed on October
                                                                        16,:1992. Appellant's
date of birth is August 21, 1974. Therefore, Appellant was
                                                           eighteen (18) years of age at the time
the offenses were committed.

       As detailed in our Notice of Intent to Dismiss Pursuant to
                                                                  Pennsylvania Rule of Criminal
Procedure 907, filed June 14, 2016, the relevant procedural history is as
                                                                          follows:
               On March 10, 1993, [Appellant] entered an open guilty plea to the above
       charges. Following a degree-of-guilt hearing, the Court found [Appellant] guilty
       of first-degree murder. On June 24, 1993, [Appellant] was sentenced to a
       mandatory period of life imprisonment on the first- degree murder
       concurrent term of imprisonment of ten (10) to twenty (20) years on charge,   with a
                                                                              the remaining
       charges. [Appellant] did not file a direct appeal to the Superior Court.

               [Appellant] filed a PCRA Petition on July 6, 1994. After several ancillary
      issues were resolved, this Court denied the Petition, [Appellant] appealed
                                                                                   and the
      Superior Court affirmed in all aspects except with respect to his claim that
                                                                                     prior
      counsel was ineffective for not filing a direct appeal. The Superior Court
                                                                                 remanded
      to this Court to conduct an evidentiary hearing.n that
                                                               issue alone.
              On April 16, 2001, this Court determined that [Appellant] was
                                                                               entitled to
      relief and, by order dated April 20, 2001, reinstated [Appellant's] rights
                                                                                 to direct
      appeal mine pro tunc.

             On May 1, 2001, [Appellant] filed a Notice of Appeal from the
                                                                           judgment of
      sentence imposed in 1993 following his guilty plea. On October 30, 2001, the

                                                                                                    3
             Superior Court affirmed the.judgment of sentence of this Court.
                                                                             [Appellant] filed
             a timely petition for allowance of appeal with the
                                                                Pennsylvania Supreme Court,
             which was denied.

                    On August 19, 2003, [Appellant] filed a pro se petition
                                                                                for writ of habeas
            corpus with this Court. This Court treated the writ of habeas
                                                                                        corpus as
            [Appellant's] second PCRA petition, which was then dismissed without a
            as untimely. [Appellant] appealed to the Superior Court.                       hearing
                                                                        On August 25, 2004, the
            Superior Court issued a non-precedential decision remanding the
                                                                                    matter back to
            this Court to decide the merits of the writ of habeas
                                                                   corpus, as the Superior Court
            found the filing of the writ of habeas corpus to be [Appellant's] first PCRA
                                                                                          petition.
            This Court held a hearing on February :25, 2005, and denied
                                                                                   the petition on
            September 7, 2005. [Appellant] filed a Notice of Appeal to the Superior Court
                                                                                                on
            October 3, 2005. On August 16, 2007, the Superior Court affirmed this Court's
            decision.

                    [Appellant] then filed what was considered a second PCRA Petition on
            August 24, 2012, and an Amended Petition on August 19, 2013. On
                                                                                       January 3,
           2014, [Appellant] filed an "Amended Petition far Habeas Corpus Relief"
                                                                                                On
           January 16, 2014, this Court sent Defendant a Notice of Intent to Dismiss without
           Hearing pursuant to Pennsylvania Rule of Criminal Procedure 907. [Appellant]
           filed a response on February 7, 2014. On February 12, 2014, this Court dismissed
           the Petitions as the issues raised were time.barred and this Court lacked jurisdiction.

                  On March 13, 2014, [Appellant] filed a timely Notice of Appeal to the
           Superior Court. On November 14, 2014, the Superior Court issued a non-
           precedential decision affirming this Court's February 12, 2014, Order dismissing
           [Appellant's] PCRA Petition. On March 30, 2015, the Pennsylvania Supreme Court
           denied [Appellant's] Petition for Allowance of Appeal.

           On March 22, 2016, Appellant filed the instant PCRA petition. On June 20, 2016,
                                                                                           this
    Court entered an Order notifying Appellant of our intent to dismiss his PCRA petition
                                                                                          without a
    hearing pursuant to Pennsylvania Rule of Criminal Procedure 907. On August 16,
                                                                                   2016, Appellant
filed objections to this Court's Rule 907 notice .6 On September 14, 2016, this Court
                                                                                      entered an




6 Appellant's counsel was retained after issuance of our 907 Notice of Intent to Dismiss. Therefore, on June
                                                                                                               29, 2016,
this Court granted counsel for Appellant's request for an extension oftime to file objections to
                                                                                                 this Court's 907 notice,
thereby rendering the objections due on. or before July 19, 2016. On July 15, 2016, Appellant again
this Court granted, an extension of time to file objections to the 907 notice,                           requested, and
                                                                               thereby rendering the objections due on
or before August 6, 2016. Finally, on August 4 2016, this Court granted Appellant's third request for
                                                                                                        an extension of
time to file objections to the 907 notice, thereby rending the:objections due on or before
                                                                                           August 15, 2016.

                                                                                                                       4
Order denying Appellant's Motion for Post Conviction Relief. Appellant
                                                                       filed a timely Notice of
Appeal to the Superior Court on October 4, 2016.

 11.     STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

         On October 5, 2016, this Court issued an Order pursuant to
                                                                    Pa.R.A.P. 1925(b) directing
Appellant to file a Concise Statement of Matters Complained of on. Appeal
                                                                          within twenty-one (21)
days. On October 24, 2016, Appellant filed his Concise Statement raising
                                                                         the following issues,
verbatim:

   1     Petitioner's sentence is unconstitutional because age was never considered by the
        legislature in determining whether a mandatory life sentence should be given for all those
        in excess of 18 years of age Thus, the mandatory life sentence violates
                                                                                both the Eighth and
        Fourteenth Amendments as the life sentence imposed in this case was cruel and unusual
        under Miller v. Alabama, 567 U.S.          , 132 S.Ct. 2455 (2012) and Montgomery v.
        Louisiana, 577 U.S.  -,   136 S.Ct. 718 (Jan. 25, 2016), especially since,Mr. Dyson was a
        mere 18 years and 55 days old when he committed this crime. This ground
                                                                                         provided a
        basis for either PCRA or habeas corpus relief.

  2.   Petitioner's sentence is unconstitutional because Pennsylvania law, permits imposition of
       mandatory life without parole sentences on 18 year olds, even for those who are merely
       one day over that bright line, when such a sentence is now prohibited for 17 years
                                                                                             old with
       whom he is similarly situated. See, Miller and Montgomery. Based on the scientific
       evidence and those cases, an automatic sentence of life without the possibility of parole for
       Mr. Dyson lacks a rational basis and therefore violates his equal protection rights
                                                                                            under the
       US. and Pennsylvania constitutions. Alternatively, imPosition of this sentence violates the
       strict scrutiny test because the restriction of liberty is a fundamental right. These grounds
       also provided a basis for either PCP_A. or habeas relief:
  3,   Petitioner was denied substantive and procedural due process under the Fifth and
       Fourteenth Amendments, and corresponding Pennsylvania Constitutional provisions, since
       he was unable to present the factors of age, extreme childhood abuse and other mitigating
       factors to attempt to lessen his sentence of life without parole. Accordingly, the PCRA
       Petition should have been granted to permit him to do so.

  4. Petitioner's sentence was also unconstitutional as applied for the reasons set forth above,
       which are hereby incorporated by reference. At the very least, Petitioner should have been
       permitted:the opportunity to demonstrate,in a hearing that there is a rebuttable presumption
       under the principles of Miller and Montgomery and cases cited therein that he should not
       have been sentenced to a period of mandatory life without parole based on all the factors
       stated above.



                                                                                                  5
        5,    Petitioner's sentence was unconstitutional under Article 1, Sections 1, 9, 13 and 26 of the
              Pennsylvania Constitution for the reasons set forth above in the corresponding federal
              constitutional violations, which are hereby incorporated by reference. This ground also
              provided a basis for relief_

        6. Pursuant to 42 Pa.C.S. §9545(b)(1)(iii), Petitioner is entitled to have his sentence vacated
           as Miller and Montgomery created a new constitutional right that has been applied
           retroactively and should be applied to Mr. Dyson as well because he is similarly situated
           to those under age 18. This ground should have also provided for PCRA and/or habeas
             relief.

        7.   Alternatively, if Petitioner is ineligible to obtain relief under the Post-conviction Relief
             Act, 42 Pa.CS. §9541 et seq. and more panicularly under §9545(b)(I)(iii), he is entitled to
             relief under the Pennsylvania and United States habeas corpus statutes for the various
             reasons stated above. Under Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638, 640
             (1998), habeas relief exists where there is no remedy under the PCRA. See also, Article 1,
             Section 14 of the Pennsylvania Constitution. Accordingly, it is respectfully submitted if
             relief cannot be had under the. PCRA, then the Court should have granted him a hearing
             and/or relief under habeas corpus.

       8.    If Petitioner is not entitled to utilize either PCRA or habeas corpus remedies where there
             appear to be violations of equal protection, substantive and procedural.due process, and/or
             the cruel and unusual punishment clause of the Eighth Amendment as stated above, then
             the PCRA and/or habeas corpus procedural and substantive remedies under both the
             Pennsylvania statutes and constitution are unconstitutional as applied to him. Petitioner
             was accordingly, entitled to a hearing to determine whether the protections of Miller should
             be extended to him.

       9.    Petitioner was denied both the substantive and procedural due process rights to have access
             to, and prosecute, his claims in the Pennsylvania courts.

III.         DISCUSSION
             In his objections to our Rule    of Criminal Procedure 907 Notice of Intent        to Dismiss,

Appellant argues he is entitled to relief under the PCRA as a result of 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). Appellant also argues that        if his claim is time barred under the PCRA, he
is entitled to relief outside the PCRA under a writ of habeas corpus. For the reasons discussed

below, we find Appellant is not entitled to relief outside the PCRA, and that because his PCRA

Petition is untimely, this Court lacks jurisdiction to reach his claims on the merit.


                                                                                                         6
                    a. Habeas Relief Outside the PCRA

               Appellant contends he is entitled to habeas relief outside the PCRA. Appellant argues
                                                                                                     that
    if he is not entitled   to relief under the PCRA due to timeliness, he has no grounds for relief
                                                                                                     under
    the PCRA and is therefore entitled to a hearing to address his claims on the merits
                                                                                        under a writ of
    habeas corpus. We disagree.

            The Pennsylvania Supreme Court has held the PCRA "subsumes the writ
                                                                                of habeas corpus
    in circumstances where the PCRA provides a remedy for the
                                                              claim." Commonwealth                  v.   Hackett,
    956 A.2d 978, 985 (Pa. 2008); Commonwealth v. Taylor, 65             Aid 462, 465   (Pa. Super. Ct. 2013)
    (citing Commonwealth       v,   Fahy, 737   Aid 214, 223-24). By its own text, it is well -settled that the
    PCRA is intended to be the sole means for collaterally attacking a conviction or
                                                                                     sentence:
           *   **


           The action established in this subchapter shall be the sole means of obtaining
           collateral relief and encompasses all other common law and statutory remedies for
           the same purpose that exist when this subchapter takes effect, including habeas
           corpus and coram nobis.



42 Pa.C.S. § 9542; see Taylor, 65 A.3d at 465. It is significant to note the habeas
                                                                                    corpus statute
provides, "where a person is restrained by virtue of sentence after conviction for a. criminal offense,
the writ of habeas corpus shall not be available if a remedy may be had by post
                                                                                -conviction hearing
proceedings authorized by law," 42 Pa.C.S,             §   6503(b),
          The PCRA allows numerous grounds for collateral relief, including where
                                                                                  the conviction
or sentence resulted from the imposition of a sentence greater thanthe lawful maximum. 42
                                                                                          Pa.C.S.
§   9543(a)(2)(vii). Therefore, claims challenging, the legality of a sentence are cognizable under

the PCRA. See Commonwealth               v.   Infante, 63 A.3d 358; 365 (Pa, Super. Ct. 2013) ("Although

legality of sentence is always subject to review within the PCRA, claims must still first
                                                                                          satisfy the

                                                                                                              7
  PCRA's time limits or one of the exceptions thereto."); Commonwealth               v.   Fahy, 737 A.2d 214,
  223 (Pa. 1999) (same).

         Appellant's petition challenges his sentence pursuant to Miller. Appellant argues his
                                                                                               life
  sentence without the possibility of parole violates his right to be free from cruel and
                                                                                          unusual
 punishment. It is well -established that a claim, such as that under Miller, constitutes a
                                                                                            challenge
 to the legality   of the sentence. See Commonwealth    v.   Brown, 71 A.3d 1009, 1010 (Pa. Super. Ct.
 2013) (citations omitted); Commonwealth     v.   Howard, 540     Aid 960, 961        (Pa. Super. Ct. 1988).
 Therefore, Appellant's claim falls squarely within the parameters of the PCRA, and we find
                                                                                            he is
 not entitled to seek habeas relief outside the PCRA.

            b. Timeliness of PCRA Petition

        Having first determined Appellant's claims fall squarely within the PCRA, we note
                                                                                          the
 instant Petition is untimely and Appellant has failed to plead and prove any of the timeliness

 exceptions. Therefore, we consider only the narrow issue of this Court's lack ofjurisdiction
                                                                                              to
adjudicate the merits of Appellant's claims. Pennsylvania.law makes clear that the timeliness of a

PCRA petition is a jurisdictional threshold and may not be disregarded in order to reach the merits

of the claims raised in a PCRA petition that is untimely. Commonwealth          v.   Abunfamal, 833 A.2d
719, 723-24 (Pa. 2003) (citations omitted); Commonwealth           v.   Murray, 753 A.2d 201, 203 (Pa.
2000). A PCRA petition must be filed within one year of the date the judgment of
                                                                                 sentence
becomes final. 42 Pa.C.S.A. § 9545(b)(3).

        In the instant matter, Appellant was sentenced on June. 24, 1993, and the
                                                                                  Superior Court
affirmed the judgment of sentence on October 30, 2001. The Pennsylvania
                                                                        Supreme Court denied
allocator on June 12, 2002.      Therefore, Appellant's judgment of sentence became final on

September 10, 2002, when the'period for Appellant to file .a petition for writ of certiorari in the



                                                                                                          8
 United States Supreme Court expired. See 42 Pa.C.S.A,                  §   9545(b)(3) (stating, "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"). Therefore, Appellant had until September 10, 2003, to timely file his PCRA

 petition. As the instant petition was filed. March 22, 2016, it is patently untimely.

        However, an untimely petition may be received by this Court when the petition alleges,

 and the petitioner proves, that any of the three limited exceptions to the time for filing the petition

 applies. See 42 Pa.C.S.A.       §   9545(b)(1)(i)-(iii). Therefore, to reach the merits of Appellant's claim,

 he must plead and prove one of the following exceptions:

        (i)          the failure to raise the claim previously was the result of interference by
                     government officials with'the presentation,of the claim m violation of the
                     Constitution or laws of this Commonwealth or the Constitution or laws of
                     the United States;

        (ii)         the facts upon which the claimis predicated were unknown to the defendant
                     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). It is the petitioner's burden to prove the applicability of an
exception. Commonwealth          v.   Beasley, 741 A.2d 1258, 1261 (Pa. 1999); Commonwealth v. Greer,
936 A.2d 1075, 1077 (Pa. Super. Ct. 2007). Additionally, any petition invoking one of these

exceptions must be filed within sixty days of the date the claim could have been presented. 42

Pa.C.S.A.     §   9545(b)(2).

       Here, Appellant fails to plead and prove any of the exceptions to the timeliness requirement

permitted under section 9$42(b), which he is required to do to invoke an exception. See

Commonwealth v. Beasley, 741 A.2d 1358 (Pa 1999); Commonwealth v. Ciandy, 38 A.3c1899 (Pa.


                                                                                                            9
 Super. Ct. 2012); Commonwealth             v.   Williamson, 21 A.34 236 (Pa. Super. Ct. 2011);

 Commonwealth     v.    Burton, 936 A,2d 521 (Pa Super. Ct. 2007). Rather, Appellant engages in a

 lengthy discussion of the purported merits of his claims, which do not implicate a statutory

 exception. Appellant does      not-and cannot-allege-any interference from government officials.
 See 42 Pa.C.S A.   §   9545(b)(1)(i). Moreover, Appellant fails to demonstrate that his Petition relies

 upon facts that were previously unknown to him, and could not have been ascertained by the

 exercise of due diligence. See 42 Pa.C.S.A.     §   9545(b)(1)(ii). Although Appellant discusses Miller

 and Montgomety in his objections to our 907 Notice, these cases do not qualify as "facts" for the

 purpose of section 9545(b)(1)(ii). See Commonwealth v. Gintora, 69 A.3d 759, 763 (Pa. Super.

 Ct. 2013) (holding judicial decisions cannot be considered newly -discovered facts which would

 invoke the protections afforded by section 9545(b)(1)(ii)); Commonwealth           v.   Watts, 23 A.3d 980
(Pa. 2011) (holding, a judicial opinion does not qualify as a previously unknown "fact" capable of

triggering the timeliness exception set forth in section 9545(b)(1)(ii) of the PCRA; "section

9545(b)(1)00 applies only if the petition has uncovered facts that Could not have, been ascertained

through due diligence, and judicial determinations are not facts"); Commonwealth             v.   Brandon, 51
A.3d 231, 235 (Pa. Super, Ct. 2012) (same).
       Although not:expressly stated, our review of the record reflects Appellant has attempted to

invoke the third exception to the PCRA timeliness requirements, i.e., "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," with reliance on the United States Supreme Court decisions in Miller              v.

Alabama, 132 S. Ct. 2455 (2012), and Montgomery                v.   Louisiana, 136 S. Ct. 718 (2016).
Specifically, Appellant engages in a lengthy discussion of Miller         V.   Alabama, 132 S. Ct. 2455


                                                                                                          10
    (2012), and argues his sentence constitutes "cruel and unusual punishment and a denial of equal

    protection" and "that the protections offered to those under 18 in [Miller) should be extended to

    him since he was a mere 18 years and 55 days old when his crime was committed." See Appellant's

    Memorandum of Law in Support of Objections to 907 Notice of Intent to Dismiss, filed August

    16,2016.

           First, it should be noted Appellant correctly states the Court in Montgomery              v.   Louisiana,
    136 S. Ct. 718 (2016), held that because Miller announced anew substantive rule               of constitutional
    law, it should be given retroactive effect to cases on collateral review. In Miller, the Court held

    that mandatory life imprisonment without the possibility of parole for those under the age of

    eighteen at the time of their crimes violates the. Eighth Amendment's prohibition on cruel and

    unusual punishment 132 S. Ct. at 2463. The holding in Miller, however, was limited to those

    offenders who    ere under eighteen at the time they committed their crimes, and no court to date

    has held Miller applies to individuals over eighteen years of age, or that a sentence of life

    imprisonment without the possibility of parole for those over the age of eighteen is

    unconstitutional. In Commonwealth        v.   Cintora, 69 A.3d 759, 764 (Pa. Super. Ct. 2013), the

    Superior Court held Miller is not an exception under section 9545(b)(000 to those over the age

of eighteen at the time they committed their crimes. Here, because Appellant was over eighteen

at the time he committed the underlying crimes in this matter, Miller is inapplicable and he is not

entitled to reliefon this basis. Similarly, Montgomery is inapplicable to Appellant's case, as it was

limited solely to application of the Miller decision.

          Appellant next contends Montgomery's holding indicates Alleyne                v.   United States, 133 S.

Ct. 2151 (2013), must be given retroactive effect! First, the court in Montgomery did not address


7 Although Appellant raised this argument in his PCRA petition, it appears he abandoned this claim in his objections
to our 907 notice.

                                                                                                                 11
 Alleyne, and therefore this claim is wholly rneritless. Additionally, neither Alleyne nor any
                                                                                               case
 interpreting Alleyne has held it is retroactive to cases on collateral review. See
                                                                                    Commonwealth      v.

 Riggle, 119 A.3d 1058, 1064 (Pa. Super. Ct. 2015) (declining to construe the
                                                                              decision in Alleyne
 applies retroactively to cases during PCRA review). Accordingly,
                                                                  Appellant does not meet the
 section 9545(b)(1)(iii) exception wider this theory either.

         "If the petition is determined to be untimely, and no exception has been pled or proven,
                                                                                                    the
 petition must be dismissed without a hearing because
                                                      Pennsylvania courts are without jurisdiction
 to consider the merits   of the petition." Commonwealth v. Gandy, 38 Aid 899, 903 (Pa. Super.      Ct.
 2012) (citing Commonwealth         v.   Perrin, 947 A.2d 1284, 1285 (Pa. Super. Ct. 2008));
 Commonwealth    v.   Fairiror, 809 A.2d 396, 398 (Pa. Super. Ct. 2002) (holding that PCRA court
lacks.jurisdiction to hear untimely petition). We determined Appellant did not plead and
                                                                                         prove an
exception to the timeliness requirement of the PCRA, and as such, we did not have
                                                                                  jurisdiction to
consider the merits of his Petition.

 IV.    CONCLUSION
        For the foregoing reasons, we perceive the issues which Appellant has
                                                                              complained in this
Appeal are without merit. Accordingly, this Court's September 14, 2016, Order
                                                                              denying Post
Conviction Relief was supported by both the law and record in this case.



                                                               RY THE COURT:




DATE:
          f if0/       0147
                                                                   SAW, F2    M  Ufa.
                                                                    OND F. MCHUGH, S.




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