J-S29020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHARLES SHEPPARD                           :
                                               :
                        Appellant              :   No. 1397 EDA 2018

                   Appeal from the PCRA Order April 19, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0809521-1978


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

MEMORANDUM BY LAZARUS, J.:                                FILED JULY 08, 2019

        Charles Sheppard appeals pro se from the order, entered in the Court

of Common Pleas of Philadelphia County, dismissing his petition filed pursuant

to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon

careful review, we affirm.

        On October 25, 1978, a jury convicted Sheppard of second-degree

murder,1 robbery,2 possession of an instrument of crime (PIC),3 and criminal

conspiracy.4 On March 6, 1979, the trial court sentenced Sheppard to life

imprisonment without parole for second-degree murder, and concurrent terms

____________________________________________


1   18 Pa.C.S. § 2502.

2   18 Pa.C.S. § 3701.

3   18 Pa.C.S. § 907.

4   18 Pa.C.S. § 903.
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of 5 to 10 years’ incarceration for criminal conspiracy and 10 to 20 years’

incarceration for robbery, with no further penalty for PIC. Sheppard withdrew

his direct appeal to this Court regarding his felony convictions in 1984, and

the Pennsylvania Supreme Court affirmed Sheppard’s judgment of sentence

for second-degree murder.          See Commonwealth v. Sheppard, 428 A.2d

1337 (Pa. 1981). He filed several PCRA petitions between 1983 and 2011,

which were all dismissed.

       On November 24, 2015, Sheppard filed the instant PCRA petition pro se,

as well as several amended petitions, alleging his sentence was illegal under

Miller v. Alabama, 567 U.S. 460 (2012). Appointed PCRA counsel filed a

Turner/Finley5 “no merit” letter on December 22, 2017, and the PCRA court

dismissed Sheppard’s petition on April 19, 2018.       Sheppard appealed the

dismissal to this Court on April 30, 2018.6

       Preliminarily, we must consider the timeliness of Sheppard’s petition.

The timeliness of a PCRA petition implicates the jurisdiction of the PCRA court.
____________________________________________


5Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v.
Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

6 Sheppard has filed an “Application for Relief” moving for sanctions against
the Commonwealth, and for his arguments to be deemed uncontested and
accepted as true. See Application for Relief, 5/19/10, at 1. Sheppard has
established no basis for such relief; as such, we deny his motion.

We note, however, that the Commonwealth filed its brief over one month late,
even after this Court granted two extensions of time. We, therefore, decline
consideration of arguments advanced in the Commonwealth’s untimely brief.
See Commonwealth v. Brown, 161 A.3d 960, 964 n.2 (Pa. Super. 2017).



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Commonwealth v. Williams, 35 A.3d 44, 52 (Pa. Super. 2011). No court

has jurisdiction to hear an untimely PCRA petition.         Id.   A PCRA petition,

including a second or subsequent petition, must be filed within one year of the

date the underlying judgment of sentence becomes final unless one of three

statutory exceptions applies.7 See 42 Pa.C.S.A § 9545(b)(1)(i-iii); see also

Commonwealth v. Bretz, 830 A.2d 1273, 1275 (Pa. Super. 2003).                    A

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

date the claim could have been presented. See 42 Pa.C.S.A § 9545(b)(2).8

A judgment is deemed final “at the conclusion of direct review, including
____________________________________________


7   The statutory exceptions to the time bar are as follows:

        (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.A § 9545(b)(1)(i)-(iii).

8 In 2018, the legislature amended the PCRA to extend the previous 60-day
limitation for time-bar exceptions to one year. See 2018, Oct. 24, P.L. 894,
No. 146, § 2, effective in 60 days (Dec. 24, 2018). This extension only applies
to claims arising one year before the effective date of this section, i.e.,
December 24, 2017, or thereafter. Because Charles filed his petition on
November 24, 2015, and his claim arose before then, the 60-day time limit
applies to his claim. Id.

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discretionary review in the Supreme Court of the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking

review.” 42 Pa.C.S.A § 9545(b)(3); Commonwealth v. Pollard, 911 A.2d

1005, 1007 (Pa. Super. 2006).

      Sheppard attempts to circumvent the jurisdictional time bar by asserting

a   newly-recognized    constitutional    right   under    section   9545(b)(1)(iii).

Sheppard, who committed his crimes at age 20, contends the right recognized

in Miller, that mandatory sentences of life imprisonment without parole for

juveniles violate the Eighth Amendment applies to him. Appellant’s Brief, at

40-41; see also Montgomery v. Louisiana, 136 S.Ct. 718, 732 (2016)

(holding Miller applies retroactively to cases on collateral review).

      Miller does not apply to petitioners age 18 and older at the time of their

offense,   therefore   Sheppard   may      not    invoke    Miller   under   section

9545(b)(1)(iii). Commonwealth v. Rodriguez, 174 A.3d 1130, 1147 (Pa.

Super. 2017) (rejecting application of Miller to 18 year old offenders); see

Commonwealth v. Avis Lee, 206 A.3d 1 (Pa. Super. 2019) (en banc)

(holding Miller prohibition on mandatory life without parole sentences does

not extend to juvenile offenders over 18 at time of offense);              see also

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

omitted). As Sheppard has not pled and proven an exception under section

9545(b)(1), his petition is untimely, and the PCRA court lacked jurisdiction to

consider it.

      Order affirmed. Application for Relief denied.

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J-S29020-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/19




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