J-S42006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                           Appellee

                      v.

COLTON MATTHEW HARDY,

                           Appellant                    No. 321 MDA 2017


                   Appeal from the PCRA Order January 25, 2017
               In the Court of Common Pleas of Cumberland County
               Criminal Division at No(s): CP-21-CR-0000696-2009


BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                                  FILED JULY 13, 2017

      Appellant, Colton Matthew Hardy, appeals from the order entered on

January 25, 2017, dismissing as untimely his first petition pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Appellant's

court-appointed counsel has also filed an application to withdraw from

representation. Upon review, we grant counsel's application to withdraw and

affirm the order dismissing Appellant's PCRA petition.

      We briefly summarize the facts and procedural history of this case as

follows.   On December 2, 2011, Appellant pled nolo contendere to

first-degree     murder    pursuant    to   a   plea   agreement    wherein   the

Commonwealth agreed not to seek the death penalty.                 The trial court

accepted the plea and sentenced Appellant that same day to life in prison

without the possibility of parole. Appellant did not file a direct appeal from
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his judgment of sentence.          On October 20, 2016, Appellant filed a pro se

PCRA petition, relying on the January 25, 2016, United States Supreme

Court decision in Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

Appellant claimed that Montgomery held retroactive a new constitutional

right as established by the Supreme Court’s prior decision in Miller v.

Alabama, 132 S. Ct. 2455 (2012). Thus, he claimed his PCRA petition was

subject      to   the   PCRA’s     timeliness    exception    under    42   Pa.C.S.A.

§ 9545(b)(1)(iii). On October 25, 2016, the PCRA court appointed counsel

to represent Appellant.         The PCRA court held an evidentiary hearing on

January 12, 2017. By order and opinion entered on January 25, 2017, the

PCRA court dismissed Appellant’s PCRA petition.                 This timely appeal

resulted.1

       On     appeal,    PCRA     counsel      determined    that   there   were   no

“non-frivolous” issues for appellate review, counsel notified Appellant of his

intent to withdraw from representation and filed, in this Court, both an

application to withdraw as counsel and an accompanying “no merit” letter

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

See Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012).                      On


____________________________________________


1
   Counsel for Appellant filed a notice of appeal on February 23, 2017. The
PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).



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April 18, 2017, this Court entered an order permitting Appellant “to file a

response to counsel’s Turner/Finley “no merit” [letter], either pro se or via

privately retained counsel, within thirty (30) days[.]” Superior Court Order,

4/18/2017 (original emphasis omitted). Appellant has not responded.

       Counsel's Turner/Finley no-merit letter presents the following claim

for our consideration:

         [Whether Appellant] is entitled to relief pursuant to the
         United States Supreme Court’s decisions in Miller v.
         Alabama, 132 S. Ct. 2455 (2012) (stating that “mandatory
         life without parole for those under the age of 18 at the time
         of their crimes violates the Eight Amendment’s prohibition
         on ‘cruel and unusual punishments’”) and Montgomery v.
         Louisiana, 136 S. Ct. 718 (2016) (holding that Miller
         applies retroactively).

Appellant's Brief at 2.2

       Prior to reviewing the merits of this appeal, we first decide whether

counsel has fulfilled the procedural requirements for withdrawing as counsel.

Doty, 48 A.3d at 454.        As we have explained:

         Counsel petitioning to withdraw from PCRA representation
         must proceed ... under Turner, supra and Finley, supra
         and must review the case zealously.           Turner/Finley
         counsel must then submit a “no-merit” letter to the trial
         court, or brief on appeal to this Court, detailing the nature
         and extent of counsel's diligent review of the case, listing
         the issues which petitioner wants to have reviewed,
         explaining why and how those issues lack merit, and
         requesting permission to withdraw.

____________________________________________


2
  Counsel has not paginated the Turner/Finley no-merit letter.       We have
provided page numbers for ease of reference.



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         Counsel must also send to the petitioner: (1) a copy of the
         “no merit” letter/brief; (2) a copy of counsel's petition to
         withdraw; and (3) a statement advising petitioner of the
         right to proceed pro se or by new counsel.

                                *          *      *

         Where counsel submits a petition and no-merit letter that ...
         satisfy the technical demands of Turner/Finley, the court—
         trial court or this Court—must then conduct its own review
         of the merits of the case. If the court agrees with counsel
         that the claims are without merit, the court will permit
         counsel to withdraw and deny relief.

Id.

       Here, counsel has satisfied all of the above procedural requirements.3

Thus, having concluded that counsel's petition to withdraw is Turner/Finley

compliant, we now undertake our own review of the case to consider

whether the PCRA court erred in dismissing Appellant's petition.

       We must determine whether we have jurisdiction to hear the appeal

pursuant to the PCRA:

         [T]he timeliness of a PCRA petition is a jurisdictional
         requisite. Jurisdictional time limits go to a court's right or
         competency to adjudicate a controversy. Pennsylvania law
         makes clear no court has jurisdiction to hear an untimely
         PCRA petition. The PCRA now requires a petition, including a
         second or subsequent petition, to be filed within one year of
____________________________________________


3
    At the conclusion of PCRA counsel’s no-merit letter, counsel inaccurately
advised Appellant that he could proceed pro se or with the assistance of
private counsel, “[i]n the event the court grants the application to
withdraw.” Turner/Finley No-Merit Letter, 4/17/2017, at 4.         To correct
this oversight, we entered the April 18, 2017 order permitting Appellant to
respond within 30 days.       Superior Court Order, 4/18/2017 (original
emphasis omitted). To date, however, Appellant has not filed a response.



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        the date the underlying judgment becomes final.            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 time for seeking review.

Commonwealth v. Williams, 35 A.3d 44, 52 (Pa. Super. 2011) (citations

and quotations omitted).

      Here, the trial court sentenced Appellant on December 2, 2011.

Appellant had 30 days to appeal that decision to this Court, but did not. See

Pa.R.A.P. 903.    Thus, his judgment of sentence became final after the

expiration of the 30-day appeal period, or on Monday, January 2, 2012. See

1 Pa.C.S.A. § 1908 (when the 30th day falls on a Sunday, an appellant has

until the following Monday to appeal).     Because the current PCRA petition

was filed on October 20, 2016, almost five years after his judgment of

sentence became final, it is patently untimely under the PCRA.

      “Generally, to obtain merits review of a PCRA petition filed more than

one year after a petitioner's sentence became final, the petitioner must

allege and prove at least one of the three timeliness exceptions.” Williams,

35 A.3d at 52, citing 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).        “Any petition

invoking an exception [to the one-year timing requirement] shall be filed

within 60 days of the date the claim could have been presented.”             42

Pa.C.S.A. § 9545(b)(2). “[W]hen a PCRA petition is not filed within one year

of the expiration of direct review, or not eligible for one of the three limited

exceptions, or entitled to one of the exceptions, but not filed within 60 days

of the date that the claim could have been first brought, the trial court has


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no power to address the substantive merits of a petitioner's PCRA claims.”

Williams, 35 A.3d at 53.

      Here,   Appellant    relies   upon   the   exception   at   42   Pa.C.S.A.

§ 9545(b)(1)(iii), claiming he has 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)(iii).       He

avers the United States Supreme Court’s decision in Montgomery held

retroactive its prior decision in Miller wherein the Supreme Court concluded

that mandatory life without parole, for those under the age of 18 at the time

of their crimes, constitutes cruel and unusual punishment.

      Upon review, we conclude that Appellant has failed to establish an

exception to the PCRA’s timeliness requirement for two reasons.            First,

Appellant relies upon Montgomery.           The United States Supreme Court

issued Montgomery on January 27, 2016. Appellant’s PCRA petition, filed

on October 20, 2016, was not within 60 days of the Montgomery decision

as required under Section 9545(b)(2). Next, as Montgomery made clear,

“Miller held that mandatory life without parole for juvenile homicide

offenders violates the Eighth Amendment's prohibition on ‘cruel and unusual’

punishments.” Montgomery, 136 S.Ct. at 726 (emphasis added). In this

case, there is no dispute that Appellant was 19 years old at the time he

committed the murder.        Because he was not a juvenile, Miller is not

applicable to him.    See Commonwealth v. Cintora, 69 A.3d 759 (Pa.

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Super. 2013) (holding that Miller did not extend to PCRA petitioners who

were 21 and 19 years old, respectively, at time they committed murders for

which they were convicted and could not serve as the basis for filing a late

PCRA petition); see also Commonwealth v. Furgess, 149 A.3d 90, 94

(Pa. Super. 2016) (“[P]etitioners who were older than 18 at the time they

committed murder are not within the ambit of the Miller decision and

therefore may not rely on that decision to bring themselves within the

time-bar exception in Section 9545(b)(1)(iii).”). Accordingly, for all of the

foregoing reasons, Appellant’s PCRA petition is untimely, not subject to

exception, and we are without jurisdiction to address the merits of

Appellant’s claim. Hence, we affirm the PCRA court’s order denying relief.

     Order affirmed. Counsel’s application to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/2017




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