J-S73040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MARCEL J. COOK

                            Appellant                 No. 548 WDA 2016


                  Appeal from the PCRA Order March 10, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0000391-1986
                                          CP-02-CR-0000530-1986



BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                        FILED OCTOBER 04, 2016

        Appellant Marcel J. Cook appeals from the order entered in the

Allegheny County Court of Common Pleas, which dismissed his pro se

petition filed for relief pursuant to the Post Conviction Relief Act (“PCRA”). 1

We affirm.

        This Court accurately set forth the relevant facts and procedural

history of this appeal as follows:2


____________________________________________


1
    42 Pa.C.S. §§ 9541-9546.
2
  This Court’s non-precedential decision at 1213 WDA 2014 affirmed the
order of the PCRA court that dismissed Appellant’s eleventh (11th) PCRA
petition.
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          On July 22, 1986, Appellant entered a negotiated guilty
          plea to second-degree murder and robbery charges, which
          arose from the December 30, 1985 shooting of Donald
          Stoker by Appellant’s accomplice. The court imposed a
          mandatory term of life imprisonment for the murder
          conviction and no additional penalty on the robbery count.
          Thereafter,     Appellant   attempted     unsuccessfully    to
          withdraw his guilty plea on several occasions, and
          repeatedly sought both PCRA and habeas relief through
          serial petitions. [Appellant’s eleventh] petition was filed on
          July 6, 2012.…        Appellant subsequently sought and
          received leave to amend his petition to seek habeas corpus
          relief. On February 4, 2014, Appellant filed a pro se
          Amended Petition for Writ of Habeas Corpus claiming that
          his sentence for a crime committed when he was
          nineteen[3] years of age violated the Eighth Amendment’s
          prohibition against cruel and unusual punishment…. [The
          PCRA] court denied [Appellant’s eleventh] petition as time
          barred by order dated June 25, 2014.

Commonwealth v. Cook, No. 1213 WDA 2014, unpublished memorandum

at 1-2 (Pa.Super. filed February 10, 2015).

       On February 10, 2015, this Court affirmed the PCRA court order that

denied Appellant’s eleventh (11th) PCRA petition.       On October 10, 2015,

Appellant filed another pro se PCRA petition, which the PCRA court dismissed

on December 22, 2015.          On February 2, 2016, Appellant filed the present

pro se PCRA petition, his thirteenth. On February 25, 2016, the PCRA court

issued a notice of its intent to dismiss the petition pursuant to Pa.R.Crim.P.

907.   Appellant filed a response to the court’s notice, and the PCRA court

dismissed the petition on March 10, 2016. On April 1, 2016, Appellant filed

____________________________________________


3
  Appellant was actually twenty-five (25) years old when he committed the
crime.



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a timely notice of appeal. Both Appellant and the PCRA court complied with

Pa.R.A.P. 1925.

      Appellant raises the following issue for our review:

         WHETHER    [APPELLANT’S]   PETITION  FOR   POST-
         CONVICTION RELIEF WAS TIMELY FILED AND THEREFORE
         IMPROPERLY DISMISSED BY THE COURT, WHICH HAD
         JURISDICTION TO ENTERTAIN IT?

Appellant’s Brief at 1.

      The timeliness of a PCRA petition implicates the jurisdiction of both

this Court and the PCRA court. Commonwealth v. Williams, 35 A.3d 44,

52 (Pa.Super.2011), appeal denied, 50 A.3d 121 (Pa.2012). “Pennsylvania

law makes clear that no court has jurisdiction to hear an untimely PCRA

petition.”   Id.   To “accord finality to the collateral review process[,]” the

PCRA “confers no authority upon [appellate courts] to fashion ad hoc

equitable exceptions to the PCRA timebar[.]”      Commonwealth v. Watts,

23 A.3d 980, 983 (Pa.2011). With respect to jurisdiction under the PCRA,

this Court has further explained:

         The most recent amendments to the PCRA...provide a
         PCRA petition, including a second or subsequent petition,
         shall be filed within one year of 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 the review.

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)

(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011);

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see also 42 Pa.C.S. § 9545(b). This Court may review a PCRA petition filed

more than one year after the judgment of sentence becomes final only if the

claim falls within one of the following three statutory exceptions, which the

petitioner must plead and prove:

             (i) the failure to raise the claim 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).        Further, if a petition pleads one of these

exceptions, the petition will not be considered unless it is “filed within 60

days of the date the claim could have been presented.” 42 Pa.C.S. §

9545(b)(2).

     Here, Appellant’s judgment of sentence became final on July 5, 1988,

when his time to appeal to our Supreme Court expired. See 42 Pa.C.S. §

9545(b)(3).   Appellant’s patently untimely PCRA petition, filed February 2,

2016, fails to plead and prove any of the statutory exceptions to the PCRA

time bar.




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      Appellant attempts to invoke the constitutional right exception to the

PCRA time bar provided by 42 Pa.C.S. § 9545(b)(1)(iii). He claims that he is

entitled   to   post-conviction   relief   because   his   life   sentence   was

unconstitutional pursuant to the Supreme Court of the United States’

holdings in Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 2469, 183 L.

Ed. 2d 407 (2012) and Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct.

718, 724, 193 L. Ed. 2d 599 (2016), as revised (Jan. 27, 2016).

      In Miller, the Supreme Court held that a life sentence without the

possibility of parole for juvenile offenders violates the constitutional right

provided by the Eighth Amendment of the United States Constitution to be

free from cruel and unusual punishment.        Miller, 132 S.Ct. at 2469.     In

Montgomery, the Supreme Court held that this new substantive rule

applies retroactively to cases on collateral review. Montgomery, 136 S.Ct.

at 724. Neither of these cases, nor any other United States Supreme Court

or Pennsylvania Supreme Court cases, held that a life sentence for an adult

offender violates one’s Eighth Amendment constitutional right or that such

substantive right applies retroactively.

      Appellant claims that, although he was over eighteen years old when

he committed his crime, the Supreme Court’s holding in Miller should apply

to him due to his delayed maturity and history of abuse. Unfortunately for

Appellant, Miller does not create a newly-recognized constitutional right

that can serve as the basis of relief for young adults. See Commonwealth


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v. Cintora, 69 A.3d 759, 764 (Pa.Super.2013), appeal denied, 81 A.3d 75

(Pa.2013) (rejecting nineteen-year-old and twenty-five-year-old’s claims

that Miller extends to individuals whose brains were not fully developed at

time of crimes). Further, this Court previously rejected this very claim when

it affirmed the PCRA order dismissing Appellant’s eleventh petition filed for

relief. See Cook, supra.

      Because Appellant failed to plead and prove any of the statutory

exceptions to the PCRA time limitation, the PCRA court correctly determined

that it lacked jurisdiction to hear this untimely PCRA petition, and we

likewise are without jurisdiction to hear Appellant’s claim.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/4/2016




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