J-S30031-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
             v.                           :
                                          :
JOSE ALBERT CASTRO,                       :
                                          :
                   Appellant              :          No. 1417 MDA 2016

                   Appeal from the PCRA Order July 18, 2016
                 in the Court of Common Pleas of York County,
              Criminal Division, No(s): CP-67-CR-0000463-2010

BEFORE: SHOGAN, RANSOM and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED JUNE 12, 2017

        Jose Albert Castro (“Castro”) appeals from the Order denying his

second Petition for Relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 Counsel for Castro (“Counsel”) has filed an Anders brief,2 and a

Petition to Withdraw from representation.3 We quash the appeal as untimely

filed, and dismiss Counsel’s Petition to Withdraw.




1
    See 42 Pa.C.S.A. §§ 9541-9546.
2
    Anders v. California, 386 U.S. 738 (1967).
3
  The dictates of Anders apply when counsel seeks to withdraw from
representation on direct appeal. When counsel seeks to withdraw from
representation on collateral appeal, the dictates of Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988) (en banc), are applicable. However, because an
Anders brief provides greater protection to a defendant, this Court may
accept an Anders brief in lieu of a Turner/Finley “no-merit” letter. See
Commonwealth v. Reed, 107 A.3d 137, 139 n.5 (Pa. Super. 2014).
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        On November 30, 2010 the trial court sentenced Castro to life in

prison for his conviction, following a jury trial, of first-degree murder.4 This

Court affirmed Castro’s judgment of sentence on January 27, 2012.

Commonwealth v. Castro, 43 A.3d 528 (Pa. Super. 2012) (unpublished

memorandum). On August 1, 2012, the Pennsylvania Supreme Court denied

allowance of appeal. Commonwealth v. Castro, 49 A.3d 441 (Pa. 2012).

        Castro filed the instant pro se PCRA Petition, his second, on March 31,

2016.     On July 18, 2016, following the issuance of a Notice pursuant to

Pa.R.Crim.P. 907, the PCRA court denied Castro’s Petition without a hearing.

See PCRA Order, 7/18/16.5        On August 23, 2016, Castro filed a pro se

Notice of Appeal and court-ordered Pa.R.A.P. 1925(b) Concise Statement of

matters complained of on appeal.       The PCRA court appointed Counsel to

represent Castro, who declined to file a counseled Rule 1925(b) concise

statement on Castro’s behalf.6        Counsel has filed with this Court a




4
    See 18 Pa.C.S.A. § 2501.
5
 The Order denying PCRA relief was dated July 15, 2016, docketed on July
18, 2016, and mailed to Castro on July 20, 2016.
6
  Counsel indicated that the pro se Concise Statement was comprehensive
and no further filing was necessary. Anders Brief at 5 n.1.



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Petition to Withdraw from representation and an Anders brief.7

      Before addressing the substantive issues raised by Castro, we first

must address whether Castro timely appealed the denial of PCRA relief. The

Pennsylvania Rules of Appellate Procedure provide that “the notice of appeal

… shall be filed within 30 days after the entry of the order from which the

appeal is taken.” Pa.R.A.P. 903(a). The day of entry of an order is the day

that the clerk of courts mails or delivers copy of the order to the parties, or

makes such copies public. Pa.R.A.P. 108(a)(1). This Court may not extend

the time for filing a notice of appeal. Pa.R.A.P. 105(b). “[T]he timeliness of

an appeal is jurisdictional and can be raised by this Court sua sponte.”

Morningstar v. Hoban, 819 A.2d 1191, 1196 (Pa. Super. 2003) (citations

omitted); see also Commonwealth v. Williams, 29 A.3d 393, 395 (Pa.

Super. 2011) (recognizing that the timeliness of the notice of appeal

implicates the jurisdiction of this Court).

      Pursuant to the Rules of Appellate Procedure,

7
 We note that as of December 2016, no appellate brief had been filed in the
Superior Court. As a result, this Court entered an Order remanding the
matter to the PCRA court, to determine whether Counsel had abandoned
Castro, and “to take further action as required to protect [Castro’s] right to
appeal.” Commonwealth v. Castro, No. 1417 MDA 2016 (2016) (Remand
Order) (emphasis omitted). Importantly, this Court retained jurisdiction
over Castro’s appeal. See id.
      On remand, the PCRA court entered an Order purportedly reinstating
Castro’s appeal rights. PCRA Court Order, 1/5/17. However, the PCRA court
was without authority to do so, as this Court had retained jurisdiction over
Castro’s appeal. Consequently, on January 5, 2017, this Court entered an
Order vacating the PCRA court’s reinstatement of Castro’s appeal rights.
Commonwealth v. Castro, No. 1417 MDA 2016 (Pa. Super. 2017) (Order).



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      [a] pro se filing submitted by a prisoner incarcerated in a
      correctional facility is deemed filed as of the date it is delivered
      to the prison authorities for purposes of mailing or placed in the
      institutional mailbox, as evidenced by a properly executed
      prisoner cash slip or other reasonably verifiable evidence
      of the date that the prisoner deposited the pro se filing
      with the prison authorities.

Pa.R.A.P. 121(a) (emphasis added).

      Our review of the record discloses that the PCRA court mailed its Order

denying relief to Castro on July 20, 2016. Therefore, Castro was required to

file a notice of appeal on or before Friday, August 19, 2016. See Pa.R.A.P.

903(a). The Proof of Service attached to Castro’s pro se Notice of Appeal is

hand-dated August 11, 2016. However, the envelope in which the Notice of

Appeal was mailed is postmarked August 23, 2016, beyond the 30-day

appeal period. Castro has not provided “a properly executed prisoner cash

slip or other reasonably verifiable evidence of the date that the prisoner

[timely] deposited the pro se filing with the prison authorities.”    Pa.R.A.P.

121(a) (emphasis added). No other evidence of record reasonably verifies

that Castro timely filed his Notice of Appeal. See id.

      Finally,   the   record   contains   no   evidence    of   “extraordinary

circumstances[,] such as a court holiday or closing or a breakdown in the

operations of the court[,]” that would excuse Castro’s untimely filing.

Commonwealth v. Burks, 102 A.3d 497, 500 (Pa. Super. 2014).

Consequently, we must quash Castro’s appeal as untimely filed. We note,




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however, that even if Castro had timely filed his Notice of Appeal, he would

not be entitled to relief.

      Castro claims that his sentence to life in prison was illegal and

unconstitutional, based upon the United States Supreme Court’s decision in

Miller v. Alabama, 567 U.S. 460 (2012). However, Miller applies only “to

those defendants who were under the age of 18 at the time of their

crimes[.]”   Miller, 567 U.S. at 465 (emphasis added).        Castro, who was

born on November 16, 1984, was 24 years old in July 2009, when the

murder was committed. Accordingly, Miller provides no relief from Castro’s

judgment of sentence.        See id.; see also Commonwealth v. Cintora, 69

A.3d 759, 764 (Pa. Super. 2013) (holding that the application of Miller only

to juveniles under the age of 18 did not violate the equal protection rights of

defendants over 18, but under 25 years of age); Commonwealth v.

Furgess, 149 A.3d 90, 94 (Pa. Super. 2016) (stating that Cintora remains

applicable   following   the   United   States   Supreme   Court’s   decision   in

Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718, 193 L. Ed. 2d

599 (2016)). Thus, even if Castro had timely filed his Notice of Appeal, we

would conclude that the underlying claim is frivolous and lacks merit.

      Accordingly, we quash Castro’s appeal as untimely filed. Furthermore,

in light of our disposition, Counsel’s Petition to Withdraw is dismissed.




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     Appeal quashed. Petition to Withdraw dismissed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/12/2017




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