J-S10023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    TIMOTHY JONES

                             Appellant                No. 1581 EDA 2018


                Appeal from the PCRA Order entered May 3, 2018
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at Nos: CP-51-CR-0416501-1992;
                            CP-51-CR-1021441-1992


BEFORE: GANTMAN, P.J.E., STABILE, J., and COLINS, J.*

MEMORANDUM BY STABILE, J.:                                 FILED MAY 16, 2019

        Appellant, Timothy Jones, appeals from the May 3, 2018 order entered

in the Court of Common Pleas of Philadelphia County, denying his fourth

petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546. We affirm.

        Appellant argues that his mandatory life-without-parole sentence for

homicide, which he committed when he was 18 years and 67 days old, is

unconstitutional under        Miller v. Alabama, 132 S.Ct. 2455 (2012).

Appellant’s Brief at 7-8. We disagree.



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*   Retired Senior Judge assigned to the Superior Court.
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       The underlying facts of this matter are not in dispute. 1     This Court

summarized the same in its memorandum issued in connection with

Appellant’s direct appeal.       See Commonwealth v. Jones, No. 1307 EDA

1994, unpublished memorandum (Pa. Super. filed October 18, 1995). Thus,

we need not repeat them here. Procedurally, we note that Appellant filed the

instant PCRA petition (his fourth)2 on March 25, 2016, more than nineteen

years after his judgment became final.3

       “[A]n appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).

All PCRA petitions, “including a second or subsequent petition, shall be filed

within one year of the date the judgment becomes final” unless an exception
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1Relevant to this matter, it is also undisputed that Appellant was 18 years
and 67 days old at the time he committed the underlying crime. See
Appellant’s Brief at 6, 9.

2 See Commonwealth’s Brief at 3. Appellant confirmed that he “has filed
numerous PCRA [p]etitions seeking relief.” Appellant’s Brief at 5.

3 On April 5, 1994, the trial court sentenced Appellant to life in prison after a
jury found him guilty of first-degree murder. We affirmed the judgment of
sentence on October 18, 1995. Our Supreme Court denied allowance of
appeal on April 16, 1996. There is no indication that Appellant sought further
review. Accordingly, Appellant’s judgment of sentence became final on July
15, 1996, ninety days after our Supreme Court denied allowance of appeal.
See 42 Pa.C.S.A. § 9545(b)(3); U.S. Supreme Court Rule 13. Thus, to be
considered timely, the PCRA petition had to be filed within one year of the
sentence becoming final, or by July 15, 1997.



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to timeliness applies.        42 Pa.C.S.A. § 9545(b)(1).     “The PCRA’s time

restrictions are jurisdictional in nature. Thus, if 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.” Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.

2006) (internal citations and quotation marks omitted).        As timeliness is

separate and distinct from the merits of Appellant’s underlying claims, we first

determine whether this PCRA petition is timely filed. See Commonwealth

v. Stokes, 959 A.2d 306, 310 (Pa. 2008) (consideration of Brady4 claim

separate from consideration of its timeliness). The timeliness requirements

of the PCRA petition must be met, even if the underlying claim is a challenge

to the legality of the sentence. See Commonwealth v. Fahy, 737 A.2d 214,

223 (Pa. 1999) (“Although legality of sentence is always subject to review

within the PCRA, claims must still first satisfy the PCRA’s time limits or one of

the exceptions thereto”) (citation omitted).

        We must first determine whether the instant petition is timely. As noted

above, Appellant filed the instant petition in 2016, more than nineteen years

after his judgment of sentence became final. As such, the instant petition is

facially untimely. To overcome the untimeliness of the petition, a petitioner

must allege and prove one of the exceptions to the one-year time bar, codified

at 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). These exceptions include governmental
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4   Brady v. Maryland, 373 U.S. 83 (1963).


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interference, newly-discovered facts, and after-recognized constitutional

rights.   Here, Appellant argues he meets the requirements of the after-

recognized     constitutional     right   exception,   codified   in   42    Pa.C.S.A.

§ 9545(b)(1)(iii). Specifically, Appellant argues that he is entitled to review

based on Miller.5 We disagree.

       We have repeatedly held that Miller does not apply to defendants who

were eighteen or older when they committed murder.                          See, e.g.,

Commonwealth v. Lee, 2019 WL 986978 (March 1, 2019) (en banc);

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

above, Appellant was 18 years old at the time of the underlying crimes.

Accordingly, Appellant has no claim under Miller.

       Appellant also argues that he is due relief because equal protection

requires that adults are entitled to the same protection as juveniles.             We

disagree.

       Simply because Appellant alleges a constitutional violation, it does not

mean that the alleged constitutional violation can be raised at any time.

Indeed, even claims of constitutional dimension are subject to the same

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5 Miller held that “mandatory life without parole for those under the age of
18 at the time of their crimes violates the Eighth Amendment’s prohibition on
‘cruel and unusual’ punishments.” Miller, 132 S.Ct. at 2460 (emphasis
added). In Montgomery v. Louisiana, 136 S.Ct. 718 (2016), the United
States Supreme Court held that Miller was a new substantive rule that, under
the United States Constitution, must be retroactively applied in cases on state
collateral review. Montgomery, 136 S.Ct. at 736.



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timeliness rules. See Commonwealth v. Turner, 80 A.3d 754, 767 (Pa.

2013) (“we have already held that, in the context of the jurisdictional

timeliness restrictions on the right to bring a PCRA petition, the constitutional

nature of a collateral claim does not overcome the legislature’s restrictions on

collateral review”) (internal citation omitted).

      Because Appellant failed to plead and prove that the instant PCRA

petition is timely, the PCRA court did not err in not holding a hearing on an

untimely petition. See Commonwealth v. Marshall, 947 A.2d 714, 723 (Pa.

2008) (defendant was not entitled to evidentiary hearing on petition for post-

conviction relief that was untimely filed, and which did not adequately allege

any statutory exception to one-year limitations period for filing petition.).

      In light of the foregoing, we conclude the PCRA court properly dismissed

the instant petition as untimely.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/16/19




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