J-S23043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 TROY J. MAYER                             :
                                           :
                     Appellant             :   No. 2768 EDA 2017

                Appeal from the PCRA Order August 14, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0523341-1981


BEFORE:    SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                           FILED MAY 08, 2018

      Appellant Troy J. Mayer appeals pro se from the August 14, 2017, order

entered in the Court of Common Pleas of Philadelphia County dismissing his

serial petition filed under the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§ 9541-9546, on the basis it was untimely filed. After a careful review, we

affirm.

      This Court has previously set forth the relevant facts and procedural

history, in part, as follows:

              Appellant shot two men, killing one and seriously wounding
      the other, in retaliation for an alleged theft. After the shooting,
      Appellant kidnapped a couple at gunpoint and forced them to drive
      him from the scene. On December 14, 1981, a jury found
      Appellant guilty of numerous crimes, including first-degree
      murder, and the trial court sentenced Appellant to an aggregate
      of life in prison.
           Appellant filed a direct appeal, and this Court affirmed his
      judgment of sentence. See Commonwealth v. Mayer, 1697

____________________________________
* Former Justice specially assigned to the Superior Court.
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     Philadelphia 1984 (Pa.Super. filed 9/18/85) (unpublished
     memorandum). On April 10, 1986, the Pennsylvania Supreme
     Court denied Appellant’s petition for allowance of appeal;
     Appellant did not file a petition for writ of certiorari in the United
     States Supreme Court.
           In March of 1987, Appellant filed a petition under the Post
     Conviction Hearing Act, which is the predecessor to the PCRA. The
     lower court denied the petition, Appellant appealed, and this Court
     affirmed on November 2, 1988. See Commonwealth v. Mayer,
     555 A.2d 247 (Pa.Super. 1988) (unpublished memorandum).
     Appellant filed a petition for allowance of appeal, which the
     Pennsylvania Supreme Court denied on March 20, 1989.
           On January 16, 1997, Appellant filed a PCRA petition
     averring, inter alia, that there was after-discovered evidence that
     someone else had committed the murder for which he was
     convicted. Following an evidentiary hearing, by order entered on
     October 15, 2002, the lower court purportedly sought to grant
     Appellant a new trial, and the Commonwealth filed an appeal to
     this Court. Concluding Appellant’s PCRA petition was facially
     untimely, and Appellant failed to invoke any exception within the
     required sixty days, this Court found the PCRA court had no
     authority to grant Appellant PCRA relief. See Commonwealth v.
     Mayer, 3496 EDA 2002 (Pa.Super. filed 4/5/04) (unpublished
     memorandum). Therefore, this Court vacated the PCRA court’s
     October 15, 2002, order. See id. Appellant filed a petition for
     allowance of appeal, which the Supreme Court denied on April 1,
     2005.
                                  ***
            On May 8, 2005, Appellant filed [a] pro se PCRA petition,
     as well as a pro se supplemental PCRA petition. . . .On February
     5, 2008, the PCRA court. . .dismissed Appellant’s PCRA petition.

Commonwealth v. Mayer, 770 EDA 2008 (Pa.Super. filed 3/29/10)

(unpublished memorandum) (footnote omitted).            On appeal, this Court

affirmed, and Appellant filed a petition for allowance of appeal, which the

Supreme Court denied.




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        On or about July 24, 2012, Appellant filed a pro se PCRA petition, and

counsel entered his appearance on June 6, 2016.1 Thereafter, counsel filed a

petition seeking to withdraw his representation, as well as a Turner/Finley2

“no-merit” letter. The PCRA court provided Appellant with notice of its intent

to dismiss the petition without a hearing, to which Appellant filed a response.

By order entered on August 14, 2017, the PCRA court granted counsel’s

petition to withdraw and dismissed Appellant’s PCRA petition. This timely, pro

se appeal followed. The PCRA court did not direct Appellant to file a Pa.R.A.P.

1925(b) statement, and consequently, Appellant did not file such a statement.

However, on October 20, 2017, the PCRA court filed a Pa.R.A.P. 1925(a)

opinion.

        Preliminarily, we must determine whether Appellant’s instant PCRA

petition was timely filed. See Commonwealth v. Hutchins, 760 A.2d 50

(Pa.Super. 2000). “Our standard of review of the denial of PCRA relief is clear;

we are limited to determining whether the PCRA court’s findings are supported

by the record and without legal error.” Commonwealth v. Wojtaszek, 951

A.2d 1169, 1170 (Pa.Super. 2008) (quotation and quotation marks omitted).

        The most recent amendments to the PCRA, effective January 19, 1996,

provide that a PCRA petition, including a second or subsequent petition, shall


____________________________________________


1   The record does not provide the reasons for the delay.

2 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988).

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be filed within one year of the date the underlying judgment becomes final.

42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed 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

the time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused. 42 Pa.C.S.A. § 9545(b)(1). To invoke an exception, a petition

must allege and the petitioner must prove:

      (i)      the failure to raise a claim previously was the result of
               interference    by    government     officials with    the
               presentation of the claim in violation of the Constitution
               or the law of this Commonwealth or the Constitution or
               law 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 Pennsylvania after
               the time period provided in this section and has been held
               by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 947 A.2d 714, 719 (2008) (citation omitted).

Moreover, “the PCRA limits the reach of the exceptions by providing that a

petition invoking any of the exceptions must be filed within 60 days of the



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date the claim first could have been presented.” Commonwealth v. Walters,

135 A.3d 589, 592 (Pa.Super. 2016) (citations omitted). See 42 Pa.C.S.A. §

9545(b)(2).

      In the case before us, this Court affirmed Appellant’s judgment of

sentence on September 18, 1985, and the Pennsylvania Supreme Court

denied Appellant’s petition for allowance of appeal on April 10, 1986.

Appellant did not file a writ of certiorari with the U.S. Supreme Court, and

therefore, his sentence became final on or about June 10, 1986, which marked

the expiration of the 60-day time limit in which Appellant could have sought

discretionary review. See Commonwealth v. Hackett, 598 Pa. 350, 956

A.2d 978 (2008) (holding that judgment becomes final at the conclusion of

direct review, including discretionary review in the U.S. or Pennsylvania

Supreme Courts or at the expiration of the time for seeking the review);

Former U.S. Supreme Court Rule 20.1 (petition for writ of certiorari is deemed

timely when it is filed within 60 days after the denial of allocatur). Appellant

filed the instant PCRA petition on or about July 24, 2012, which is clearly more

than one year from when Appellant’s judgment of sentence became final.

Therefore, Appellant PCRA petition is facially untimely under the PCRA.

      This does not end our inquiry, however, as Appellant attempts to invoke

the timeliness exception of 42 Pa.C.S.A. § 9545(b)(1)(iii) relating to a new

constitutional right that applies retroactively.   Specifically, Appellant avers




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that his sentence is illegal under Montgomery v. Louisiana, 136 S.Ct. 718

(2016), and Miller v. Alabama, 132 S.Ct. 2455 (2012).

     Assuming, arguendo, Appellant met the initial sixty day threshold, we

conclude the dictates of Montgomery/Miller are inapplicable to Appellant.

In Montgomery, the High Court held that its ruling in Miller is to be given

retroactive effect on collateral review. In Miller, the High Court held that

sentencing a juvenile convicted of a homicide offense to mandatory life

imprisonment without parole violates the Eighth Amendment’s prohibition to

cruel and unusual punishment. Accordingly, such sentences cannot be handed

down unless a judge or jury first considers mitigating circumstances.

     The Miller decision applies to only those defendants who were “under

the age of 18 at the time of their crimes.” Miller, 132 S.Ct. at 2460. Here,

as the PCRA court determined:

           Appellant was convicted of first degree murder for a killing
     that occurred on April 7, 1981. According to his birth certificate,
     Appellant was born on July 2, 1962. [Thus,] [a]t the time of the
     murder, Appellant was eighteen years and nine months old.
     Appellant was sentenced to life without the possibility of parole on
     May 25, 1984.

PCRA Court Opinion, filed 10/20/17, at 2.     Consequently, the PCRA court

concluded that the holdings in Montgomery/Miller are not applicable to

Appellant. We find no error in this regard. See Wojtaszek, supra.

     Appellant     argues,    nevertheless,     that     he    may      invoke

Montgomery/Miller because of his immature brain development at the time

of the crime.    Appellant seeks an extension of Montgomery/Miller to

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persons convicted of murder who were older at the time of their crimes than

the class of defendants subject to the Miller holding. However, this Court has

previously rejected such an argument. See Commonwealth v. Furgess, 149

A.3d 90 (Pa.Super. 2016) (holding the nineteen-year-old appellant was not

entitled to relief under Miller/Montgomery on collateral review; rejecting

argument that he should be considered a “technical juvenile”).

       In light of the aforementioned, we agree with the PCRA court that

Appellant’s instant PCRA petition is untimely, and he has failed to invoke

successfully any of the timeliness exceptions.3 Accordingly, we affirm.

       Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/8/18




____________________________________________


3 Appellant claims the PCRA court erred in appointing a member of the Public
Defender’s Office to represent him in this serial PCRA petition since there was
a “conflict of interest.” We find Appellant is not entitled to relief on this claim.
Assuming, arguendo, he presented this claim in the court below, on appeal,
aside from bald assertions, Appellant has not developed this claim in any
meaningful manner. See Pa.R.A.P. 2119.


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