J-S14044-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                    Appellee               :
                                           :
                    v.                     :
                                           :
JAMES ROBERT FAVINGER, JR.,                :
                                           :
                     Appellant             :     No. 1588 MDA 2016

                Appeal from the PCRA Order August 18, 2016
               in the Court of Common Pleas of Berks County,
            Criminal Division, at No(s): CP-06-CR-0003176-1989

BEFORE:    GANTMAN, P.J., SHOGAN, and STRASSBURGER*, JJ

MEMORANDUM BY STRASSBURGER, J.:                         FILED MAY 03, 2017

      James Robert Favinger Jr. (Appellant) appeals pro se from the August

18, 2016 order which denied his petition filed pursuant to the Post

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

      In its opinion, the trial court fully and correctly sets forth the factual

and procedural history of this case. Trial Court Opinion, 10/14/2016, at 3.

Therefore, we have no reason to restate it.       Pertinent to this appeal, in

1990, following a jury trial, Appellant was convicted of, inter alia, first-

degree murder and was sentenced to life imprisonment.              Since then,

Appellant has filed a direct appeal and several PCRA petitions.

      Most recently, Appellant filed a pro se post-conviction petition, his

fourth, on March 3, 2016.         Therein, Appellant asked for, inter alia,




*Retired Senior Judge assigned to the Superior Court.
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declaratory judgment as ancillary relief, requesting the trial court hold that

he, who was 18 at the time of the charged crime, is entitled to the same

relief afforded to juvenile offenders pursuant to the United States Supreme

Court’s decision in Miller v. Alabama, 132 S.Ct. 2455 (2013) (holding

unconstitutional    mandatory     sentences    of   life   imprisonment   without

possibility of parole imposed upon individuals who were juveniles at the time

they committed homicides). On July 14, 2016, 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 August 18,

2016.

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

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

this Court on appeal.

        1. His claim not being one of Equal Protection/discrimination to
        be included in the [Miller] juvenile class, but rather to avoid
        expulsion from the said class of which he is already a member
        per Pennsylvania law; was it PCRA Court error to refuse to
        decide [Appellant’s] status and standing via prayer for
        Declaratory Judgment as Ancillary Relief and then base denial of
        all [r]elief on lack of such standing/status, coupling same with an
        alternative denial based upon previous litigation?

        2. As a challenge to the constitutionality of the specific effect of
        the Post-Conviction Relief Act upon [Appellant] did not ripen
        until the PCRA Court denied relief per the time-bar and previous
        litigation; was it PCRA Court error to fail to adjudicate such claim
        as stated in [Appellant’s “objection to the court’s order and
        notice of intent to dismiss”]?

Appellant’s Brief at 4 (suggested answers omitted).


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      The timeliness of a post-conviction petition is jurisdictional.       See,

e.g., Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)) (“[I]f

a PCRA petition is untimely, neither this Court nor the [PCRA] court has

jurisdiction over the petition.   Without jurisdiction, we simply do not have

the legal authority to address the substantive claims.”).

      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 is final unless the petition alleges, and the petitioner proves,

that one of the following exceptions to the time for filing the petition is met:

      (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).     Moreover, “[a]ny petition invoking an exception

provided in [42 Pa.C.S. § 9545(b)(1)] shall be filed within 60 days of the

date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Upon our review of the certified record, the parties’ briefs, and the

relevant law, we conclude that the opinion of the Honorable Scott D. Keller

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thoroughly and correctly addresses and disposes of Appellant’s issues and

supporting arguments and evidences no abuse of discretion or errors of law.

See Trial Court Opinion, 10/14/2016, at 3-7 (finding Appellant’s petition was

facially untimely and rejecting his argument that Miller satisfied a timeliness

exception, when the Miller decision applied to those under the age of 18,

and Appellant was 18 at the time of the events that led to his conviction).

      Accordingly, we adopt the trial court’s opinion, filed on October 14,

2016, as our own and hold, based upon the reasons stated therein, that the

trial court committed neither an error of law nor an abuse of discretion in

dismissing Appellant’s PCRA petition. The parties shall attach a copy of the

trial court’s October 14, 2016 opinion to this memorandum in the event of

future proceedings.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 5/3/2017


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