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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

PHILIP A. MAIER

                            Appellant                  No. 755 MDA 2016


                   Appeal from the PCRA Order April 28, 2016
               in the Court of Common Pleas of Schuylkill County
              Criminal Division at No(s): CP-54-CR-0000568-1989


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                         FILED FEBRUARY 21, 2017

        Appellant, Philip A. Maier, pro se appeals from the April 28, 2016 order

dismissing, as untimely, his petition filed under the Post Conviction Relief Act

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

        In December 1989, Appellant entered a negotiated guilty plea to

ungraded homicide. Thereafter, the trial court conducted a degree of guilt

hearing and found Appellant guilty of first degree murder.1      On March 23,

1990, Appellant was sentenced to life imprisonment without the possibility of

parole. See Notes of Testimony (N.T.), 3/23/09, at 157. Appellant timely

filed a direct appeal.



____________________________________________


1
    18 Pa.C.S. § 2502(a).



* Former Justice specially assigned to the Superior Court.
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      In March 1991, this Court affirmed his judgment of sentence, and

Appellant did not file a petition for allowance of appeal with the Pennsylvania

Supreme Court.      Commonwealth v. Maier, 593 A.2d 913 (Pa. Super.

1991) (unpublished memorandum). Appellant filed six PCRA petitions from

1990 to 2008.     All of Appellant’s petitions and subsequent appeals were

denied.

      In March 2016, Appellant pro se filed the instant PCRA petition, his

seventh.    The court issued a notice of intent to dismiss pursuant to

Pa.R.Crim.P. 907, and in April 2016, dismissed Appellant’s petition as

untimely.

      Appellant timely appealed and simultaneously filed a statement of

matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). In August

2016, the lower court issued a responsive opinion.

      Appellant raises the following issue for our review:

      1. Did the lower court abuse its discretion in entering an order
      that Montgomery v. Louisiana, 136 S.Ct. 718 (2016) is not
      retroactive to Appellant’s claim thereby meeting 42 Pa.C.S. §
      9545(b)(1)(iii) as an exception of 42 Pa.C.S. § 9545(b) where
      this claim was presented within 60[ ]days per 42 Pa.C.S. §
      9545(b)(1) on Appellant’s unlawful sentence (i.e., a [sentence]
      [the court never had statutory] [sic] authorization/jurisdiction to
      impose?

Appellant’s Brief at 4.

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error. See Commonwealth v.

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Ragan, 923 A.2d 1169, 1170 (Pa. 2007).          We afford the court’s factual

findings deference unless there is no support for them in the certified record.

Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).

      Initially, we address the timeliness of Appellant’s petition, as it

implicates our jurisdiction and may not be altered or disregarded in order to

address the merits of his claim.     See Commonwealth v. Bennett, 930

A.2d 1264, 1267 (Pa. 2007).         Under the PCRA, any petition for relief,

including second and subsequent petitions, must be filed within one year of

the date on which the judgment of sentence becomes final. Id. There are

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).    Any petition attempting to invoke these

exceptions “shall be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

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       Appellant’s petition is untimely.2 Nevertheless, Appellant asserts that

in 1990, he was sentenced pursuant to a statute deemed unconstitutional in

1977. Appellant’s Brief at 18-20. Specifically, Appellant claims that in 1990,

the prior version of 18 Pa.C.S. § 1102 referenced Section 1311(c) of the

Sentencing Code, which pertained to the imposition of the death penalty.

Section 1311(c) was deemed unconstitutional in 1977.3              Id. at 19.

However, Appellant (1) was not subject to the death penalty, and (2) he was

sentenced pursuant to 42 Pa.C.S. § 9711, which, as Appellant observes in

his Brief, was also in effect at the time of his sentencing. Id. at 18-20; see

PCRA Court Order and Opinion, 4/13/16, at 2. Accordingly, the premise of

Appellant’s claim is erroneous, and he cannot establish an exception to the

timeliness requirements of the PCRA.
____________________________________________


2
  Appellant’s petition is patently untimely. Appellant’s judgment of sentence
became final on April 13, 1991, at the expiration of his thirty days to petition
for allowance of appeal to the Pennsylvania Supreme Court. See 42 Pa.C.S.
§ 9545(b)(3) (a judgment of sentence becomes final at the conclusion of
direct review or the expiration of the time for seeking the review).
Appellant’s current petition, filed March 9, 2016, was filed almost twenty-five
years late. See Bennett, 930 A.2d at 1267.
3
   Section 1311(c) was declared unconstitutional in 1977 by the Supreme
Court of Pennsylvania in Commonwealth v. Moody, 382 A.2d 442 (Pa.
1977). The Moody Court found that Section 1311(c) did not allow a jury to
consider sufficiently the particular circumstances of the crime or the
character and record of the individual offender.     Section 1311(c) was
renumbered as 42 Pa.C.S. § 9711 (Sentencing procedure for murder of the
first degree).   See October 5, 1980, P.L. 693, No. 142, § 401(a).
Thereafter, 18 Pa.C.S. §1102(a) was amended to cite to 42 Pa.C.S. § 9711
instead of 18 Pa.C.S. § 1311(c). See Commonwealth v. Story, 440 A.2d
488, 499 (Pa. 1981).



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      Despite this fundamental error, Appellant further claims the Supreme

Court of the United States newly recognized a constitutional right and that

such right was held to apply retroactively, citing in support Montgomery v.

Louisiana, 136 S. Ct. 718 (2016). Appellant is again incorrect.

      Montgomery provided analysis concluding that the constitutional right

recognized in Miller v. Alabama, 132 S. Ct. 2455 (2012) (finding

mandatory life sentences for juvenile offenders to violate the Eighth

Amendment) was a new, substantive rule of constitutional law and,

therefore,   shall   apply   retroactively.   The   retroactivity   analysis   in

Montgomery is not, itself, a new right.       Clearly, the right recognized in

Miller is inapposite to Appellant’s case, as he was not a juvenile at the time

he committed the crime.

      To the extent Appellant claims that the right recognized in Miller

should be expanded to include all adult offenders, this Court has previously

rejected such efforts. See Commonwealth v. Furgess, 149 A.3d 90, 94

(Pa. Super. 2016) (“[a] contention that a newly-recognized constitutional

right should be extended to others does not render [a] petition [seeking

such an expansion of the right] timely pursuant to section 9545(b)(1)(iii).”)

(emphasis in original).

      Appellant’s petition is untimely, and he has failed to establish an

exception to the timeliness requirements of the PCRA.       Consequently, the




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PCRA court was without jurisdiction to review the merits of Appellant’s

claims and properly dismissed his petition. See Ragan, 932 A.2d at 1170.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/21/2017




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