J-S82019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :        PENNSYLVANIA
                                         :
                                         :
              v.                         :
                                         :
                                         :
 MICHAEL GIVENS                          :
                                         :   No. 260 WDA 2017
                    Appellant

                Appeal from the PCRA Order January 5, 2017
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0005984-2000,
                          CP-02-CR-0016433-1999


BEFORE:    BENDER, P.J.E., STEVENS*, P.J.E., and STRASSBURGER**, J.

MEMORANDUM BY STEVENS, P.J.E.:                    FILED JANUARY 16, 2018

      Appellant, Michael Givens, appeals, pro se, from the order entered on

January 5, 2017, in the Court of Common Pleas of Allegheny County

dismissing, without a hearing, his fourth petition filed under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Appellant claims

the PCRA court erred in dismissing his petition as untimely where, he

contends, he qualified for a statutory exception to the PCRA’s time limitations.

Specifically, Appellant bases his claim on the United States Supreme Court

cases of Miller v. Alabama, ___ U.S. ____, 132 S.Ct. 2455, 183 L.Ed.2d 407




____________________________________
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
J-S82019-17



(2012)1 and Montgomery v. Louisiana, ___ U.S. ____, 136 S.Ct. 718, 193

L.Ed.2d 599 (2016).2 We affirm.

       On November 6, 1999, when Appellant was 20 years old, Appellant shot

and killed Rico Steele. He was charged with one count of criminal homicide,

18 Pa.C.S.A. § 2501 and related offenses. A jury found him guilty of first-

degree murder, and the court imposed the mandatory sentence of life

imprisonment without parole. This Court affirmed judgment of sentence on

July 5, 2002, and the Pennsylvania Supreme Court denied Appellant’s petition

for allowance of appeal on December 27, 2002.          Appellant’s judgment of

sentence, therefore, became final on 90 days later, on March 27, 2003, when

his time for seeking certiorari in the Supreme Court of the United States

expired. See 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.Rule 13.1 (allowing 90 days

for the filing of a writ of certiorari in the Supreme Court of the United States).

Accordingly, Appellant had until March 27, 2004, to timely file a PCRA petition.

       Appellant filed this, his fourth PCRA petition, which Appellant entitled a

Petition for Writ of Habeas Corpus, on April 15, 2016, asserting his sentence

was unlawful pursuant to Miller and Montgomery.            The court appointed

counsel, but she subsequently filed a “no-merit” letter pursuant to

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


1 Miller determined that mandatory sentences of life imprisonment without
parole for minors were unconstitutional, due to the immaturity of a minor’s
brain development.

2Montgomery determined that the Miller decision was entitled to retroactive
application on collateral review.

                                           -2-
J-S82019-17



v. Finley, 550 A.2d 213 (Pa.Super. 1988). The PCRA court granted counsel’s

motion to withdraw and, by order of January 5, 2017, dismissed Appellant’s

petition. This pro se appeal follows.

      Appellant contends that the court erred in dismissing his PCRA petition

where, he claims, he is entitled to relief pursuant to Miller. See Appellant’s

brief, at 3. Our well-settled standard of review for orders denying PCRA relief

is “to determine whether the determination of the PCRA court is supported by

the evidence of record and is free of legal error. The PCRA court's findings will

not be disturbed unless there is no support for the findings in the certified

record.” Commonwealth v. Barndt, 74 A.3d 185, 191–192 (Pa.Super.2013)

(internal quotations and citations omitted).

      Initially, we must consider the timeliness of the petition, as a petition’s

timeliness implicates the jurisdiction of both this Court and the PCRA court.

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

undisputed that a PCRA petition must be filed within one year of the date that

the judgment of sentence becomes final.” Commonwealth v. Hernandez,

79 A.3d 649, 651 (Pa.Super.2013); 42 Pa.C.S. § 9545(b)(1).            “This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of a petition.” Hernandez, 79 A.3d at

651 (citing Commonwealth v. Murray, 753 A.2d 201, 203 (Pa.2000)). A

judgment of sentence “becomes 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

                                        -3-
J-S82019-17



the review.” 42 Pa.C.S. § 9545(b)(3). However, a facially untimely petition

may be received where any of the PCRA's three limited exceptions to the time

for filing the petition is met. Hernandez, 79 A.3d at 651 (footnote omitted).

These exceptions include:

      (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. § 9545(b)(1)(i)–(iii).

      As our Supreme Court has repeatedly stated, the petitioner maintains

the burden of pleading and proving that one of these exceptions applies.

Commonwealth v. Abu–Jamal, 941 A.2d 1263, 1268 (Pa.2008), cert.

denied, 555 U.S. 916 (2008). Further,

      [a] petition invoking one of these exceptions must be filed within
      sixty days of the date the claim could first have been presented.
      42 Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions
      to the PCRA's one-year filing deadline, the petitioner must plead
      and prove specific facts that demonstrate his claim was raised
      within the sixty-day time frame under section 9545(b)(2).

Hernandez, 79 A.3d at 651–652 (internal quotations omitted).

      We note Appellant filed the present petition well beyond the expiration

of his PCRA limitations period. Accordingly, his petition is facially untimely.

                                      -4-
J-S82019-17



Thus, he must plead and prove that his petition falls under one of the Section

9545(b)(1) exceptions set forth in the PCRA.

      Appellant acknowledges the patent untimeliness of his petition, but he

attempts to overcome the PCRA time bar by arguing that the Miller and

Montgomery decisions satisfy the timeliness exception found at Section

9545(b)(1)(iii). We disagree.

      As noted, supra, Miller only applies to those defendants who were under

the age of 18 at the time of the crime, whereas Appellant was 20 years old

when he committed his crime.       Appellant, however, contends that Miller

should extend to him because, in certain contexts, Pennsylvania law considers

a minor to be someone under the age of 21, and because, generally,

“neuroscience and studies on the human brain…found [it] does not fully

develop until the age of 25….” Appellant’s brief at 16.

      This argument was rejected by previous decisions of our Court,

specifically Commonwealth v. Furgess, supra, and Commonwealth v.

Cintora, 69 A.3d 759 (Pa. Super. 2013). In Furgess, our Court held:

      Appellant argues that he nevertheless may invoke Miller because
      he was a “technical juvenile,” and he relies on neuroscientific
      theories regarding immature brain development to support his
      claim that he is eligible for relief. But, rather than presenting an
      argument that is within the scope of the Miller decision, this
      argument by Appellant seeks an extension of Miller to persons
      convicted of murder who were older at the time of their crimes
      than the class of defendants subject to the Miller holding. See
      Appellant's Brief at 3-7.

      We rejected reliance on this same argument for purposes of
      Section 9545(b)(1)(iii) in Commonwealth v. Cintora, 69 A.3d


                                     -5-
J-S82019-17


      759 (Pa. Super. 2013). The defendants in Cintora were 19 and
      21 years old at the times of their crimes, but they argued that
      Miller should apply to them and others “whose brains were not
      fully developed at the time of their crimes.” Id. at 764. We stated
      that “[a] contention that a newly-recognized constitutional right
      should be extended to others does not render [a] petition
      [seeking such an expansion of the right] timely pursuant to
      section 9545(b)(1)(iii).” Id. (emphasis in original).

      We also pointed out in Cintora that the right recognized in Miller
      had not been held to apply retroactively at the time of that
      decision and that its non-retroactivity would have been an
      alternative basis for denial of relief. 69 A.3d at 764 n. 4. Because
      the U.S. Supreme Court in Montgomery has since held that
      Miller does apply retroactively, this second reason stated in the
      Cintora opinion is no longer good law. However, nothing in
      Montgomery undermines Cintora's holding that petitioners 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, Cintora remains
      controlling on this issue, and Appellant's assertion of the time-bar
      exception at Section 9545(b)(1)(iii) must be rejected.

      In sum, the PCRA court correctly concluded that it lacked
      jurisdiction to consider Appellant's untimely PCRA petition. We
      therefore affirm the PCRA court's order denying Appellant post-
      conviction relief.

Commonwealth v. Furgess, 149 A.3d at 94.

      The certified record supports the PCRA court's conclusion that the

petition was untimely and that it lacked jurisdiction to consider the merits.

Pursuant to Furgess and Cintora, we affirm the PCRA court's order denying

Appellant relief.

      Order is Affirmed.




                                     -6-
J-S82019-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/16/2018




                          -7-
