J-S49041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JAMES EDWARD MITCHELL                      :
                                               :
                      Appellant                :      No. 204 WDA 2017


                 Appeal from the PCRA Order January 20, 2017
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0001924-1997

BEFORE: DUBOW, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED AUGUST 30, 2017

        Appellant, James Edward Mitchell, appeals pro se from the order

entered in the Allegheny County Court of Common Pleas dismissing his serial

Post Conviction Relief Act1 (“PCRA”) petition. Appellant argues he is entitled

to relief pursuant to the United States Supreme Court’s decision in Miller v.

Alabama, 132 S. Ct. 2455 (2012). We affirm.

        On May 18, 1998, a jury convicted Appellant of, inter alia, first-degree

murder2 for acts committed when he was twenty-two years old.             The trial

court sentenced Appellant to life without parole on July 10, 1998. On April
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 2502(a).
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17, 2002, this Court affirmed the judgment of sentence, and our Supreme

Court    denied   allowance   of   appeal   on   October   4,   2002.     See

Commonwealth v. Mitchell, 803 A.2d 795 (Pa. Super. 2002), appeal

denied, 809 A.2d 903 (Pa. 2002). On June 20, 2003, Appellant timely filed

his first PCRA petition pro se. The PCRA court appointed counsel who filed

an amended petition to which the Commonwealth responded.          Following a

hearing, the PCRA court denied Appellant’s petition on July 27, 2004. This

Court affirmed.     Appellant subsequently filed several unsuccessful PCRA

petitions.

        Appellant filed his current PCRA petition pro se on August 29, 2016.

The PCRA court issued notice of intent to dismiss Appellant’s petition without

a hearing, pursuant to Pa.R.Crim.P. 907. Appellant responded pro se and on

January 20, 2017, the PCRA court dismissed the petition. Appellant timely

filed a notice of appeal pro se on February 1, 2017. The PCRA court ordered

Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained

of on appeal, and Appellant timely complied.

        “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and free of legal error.”        Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).

        As our Supreme Court has explained:

          the PCRA timeliness requirements are jurisdictional in
          nature and, accordingly, a PCRA court is precluded from

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         considering untimely PCRA petitions. We have also held
         that even where the PCRA court does not address the
         applicability of the PCRA timing mandate, th[e] Court will
         consider the issue sua sponte, as it is a threshold question
         implicating our subject matter jurisdiction and ability to
         grant the requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (citations

omitted).

      A PCRA petition “must normally be filed within one year of the date the

judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-

(iii) applies and the petition is filed within 60 days of the date the claim

could have been presented.”         Commonwealth v. Copenhefer, 941 A.2d

646, 648 (Pa. 2007) (some citations and footnote omitted).            The three

exceptions to the general one-year time limitation are:

         (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).

      Instantly, there is no dispute that Appellant’s current petition, filed on

August 29, 2016, is facially untimely.       Nevertheless, Appellant alleges his

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sentence of life without parole is unconstitutional pursuant to Miller, which

was decided on June 25, 2012. However, Appellant was more than eighteen

years old at the time he committed murder. Therefore, the right recognized

by Miller and held to be retroactive in Montgomery v. Louisiana, 136 S.

Ct. 718, 724 (2016), does not provide Appellant a basis for relief from the

PCRA time bar.       See Miller, 132 S. Ct. at 2460 (holding mandatory life

without parole sentences for individuals under eighteen at the time of their

crimes are unconstitutional). Accordingly, we affirm the PCRA court’s order

dismissing Appellant’s petition.3 See Wilson, 824 A.2d at 833.

       Order affirmed. Motion for remand denied.




____________________________________________


3
   During the pendency of this appeal, private counsel entered his appearance
on behalf of Appellant and on July 14, 2017, filed a motion for remand based
on after-discovered evidence. The Commonwealth has not filed a response.
Nevertheless, we deny Appellant’s motion without prejudice for him to raise
the issue in a subsequent PCRA petition, which must be filed within sixty
days of the final resolution of Appellant’s current petition.                 See
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (holding that when
an appellant’s PCRA petition is pending on appeal, a subsequent PCRA
petition cannot be filed until the pending petition is either resolved by the
highest court in which an appellant seeks review or upon the expiration of
time for seeking such review; moreover, the subsequent petition must be
filed within sixty days of the date the pending petition is finally resolved).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/30/2017




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