J-S87015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KERPER YENGLEE,

                            Appellant                No. 1078 MDA 2016


                    Appeal from the PCRA Order May 24, 2016
                in the Court of Common Pleas of Luzerne County
               Criminal Division at No.: CP-40-CR-0003311-2001


BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED JANUARY 06, 2017

        Appellant, Kerper Yenglee, appeals, pro se, from the order of May 24,

2016, dismissing, without a hearing, his fifth petition filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Because the

petition is untimely without an applicable exception, we affirm.

        We take the underlying facts and procedural history in this matter

from our independent review of the certified record. Appellant fatally shot a

man on a street in Wilkes-Barre, Luzerne County, Pennsylvania in December

2000. In March 2002, a jury convicted him of murder of the first degree,

and the trial court immediately sentenced him to life in prison without the

possibility of parole.       On December 2, 2003, this Court affirmed the
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*
    Retired Senior Judge assigned to the Superior Court.
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judgment of sentence. (See Commonwealth v. Yenglee, 844 A.2d 1291

(Pa. Super. 2003) (unpublished memorandum)).          Appellant did not seek

leave to appeal to the Pennsylvania Supreme Court.

       Appellant filed PCRA petitions in 2004, 2006, 2009, and 2012.        The

PCRA court dismissed all the petitions, and this Court affirmed their

dismissals on appeal.

       On March 22, 2016, Appellant, acting pro se, filed the instant, fifth

PCRA petition seeking to vacate his sentence pursuant to Miller v.

Alabama, 132 S.Ct. 2455 (2012), which was held to be retroactive on state

collateral review in Montgomery v. Louisiana, 136 S.Ct. 718 (2016). On

April 14, 2016, the PCRA court issued notice of its intent to dismiss the

petition pursuant to Pennsylvania Rule of Criminal Procedure 907(1).

Appellant filed a response on May 9, 2016.       On May 24, 2016, the PCRA

court dismissed the petition as untimely.        The instant, timely appeal

followed.1

       On appeal, Appellant raises the following question for our review:

       1. Did the [PCRA] court err by dismissing the properly filed PCRA
          [p]etition without a hearing finding that relief was not
          warranted in accordance with Miller?

(Appellant’s Brief, at 5).
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1
 The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). On July 26, 2016, it filed
an opinion. See Pa.R.A.P. 1925(a).




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      Our standard of review for an order denying PCRA relief is well-settled:

            This Court’s standard of review regarding a PCRA court’s
      order is whether the determination of the PCRA court is
      supported by the evidence of record and is free of legal error.
      Great deference is granted to the findings of the PCRA court, and
      these findings will not be disturbed unless they have no support
      in the certified record. . . .

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a

trial court has no jurisdiction to entertain the petition.” Commonwealth v.

Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).

      Here, Appellant filed his PCRA petition on March 22, 2016. The PCRA

provides that “[a]ny petition under this subchapter, including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final[.]”    42 Pa.C.S.A. § 9545(b)(1).       Appellant’s judgment of

sentence became final on January 2, 2004, thirty days after this Court

affirmed the judgment of sentence and Appellant did not seek review with

Pennsylvania Supreme Court.        See 42 Pa.C.S.A. § 9544(b)(3). Because

Appellant did not file his current petition until March 22, 2016, the petition is

facially untimely. See 42 Pa.C.S.A. § 9545(b)(1). Thus, he must plead and

prove that he falls under one of the exceptions at Section 9545(b) of the

PCRA. See id.

      Section 9545 provides that the court can still consider an untimely

petition where the petitioner successfully proves that:




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            (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.

Id. at § 9545(b)(1)(i)-(iii).   Further, a petitioner who wishes to invoke any

of the above exceptions must file the petition “within [sixty] days of the date

the claim could have been presented.”            Id. at § 9545(b)(2).      The

Pennsylvania Supreme Court has repeatedly stated that it is an appellant’s

burden to plead and prove that one of the above-enumerated exceptions

applies. See, e.g., Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268

(Pa. 2008), cert. denied, 555 U.S. 916 (2008).

      In the instant matter, Appellant appears to contend that his petition is

timely under Section 9545(b)(1)(iii), specifically that the United States

Supreme Court’s decisions in Miller, supra as made retroactive by

Montgomery, supra made his sentence “unconstitutional because of his

youth at the time of the offense rendered him categorically less culpable

under Miller[.]” (Appellant’s Brief, at 7). We disagree.

      Appellant seeks relief pursuant to Miller, supra. In Miller, the United

States Supreme Court held that it was unconstitutional to impose a

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mandatory term of life in prison without possibility of parole on juvenile

offenders.    See Miller, supra at 2460.         However, the record reflects that

Appellant’s date of birth is August 1, 1982.           (See PCRA Court Opinion,

5/24/16, at 2).      Thus, Appellant was over the age of eighteen when he

committed the murder in December 2000.               (See id.).   This Court has

specifically declined to extend the holding in Miller to non-juveniles. See

Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super. 2013), appeal

denied, 81 A.3d 75 (Pa. 2013). Therefore, we reject Appellant’s contention

that he is eligible for relief under Miller, and conclude that the PCRA court

properly denied his serial PCRA petition.2

       Thus, Appellant’s PCRA petition is untimely with no statutory exception

to the PCRA time-bar applying. See Hutchins, supra at 53. Accordingly,

we affirm the order of the PCRA court.




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2
  Moreover, we note that the fact that Appellant challenges the legality of his
sentence does not allow him to evade the PCRA’s timeliness requirements.
In Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999), the Pennsylvania
Supreme Court rejected this contention. The Fahy Court stated, “[a]lthough
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.”
Fahy, supra at 223 (citation omitted). Thus, Appellant cannot elude the
PCRA’s timeliness requirements based on a claim of an illegal sentence. See
id.



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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2017




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