J-S17021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                             Appellee

                       v.

JOHN K. ADAMS

                             Appellant                        No. 2797 EDA 2016


                Appeal from the PCRA Order entered July 15, 2016
                In the Court of Common Pleas of Delaware County
                Criminal Division at No: CP-23-CR-0001696-2003


BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                                      FILED MAY 17, 2017

       Appellant, John K. Adams, appeals from the July 15, 2016 order

entered in the Court of Common Pleas of Delaware County, denying his

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

42 Pa.C.S.A. §§ 9541-9546. Upon review, we quash the instant appeal.

       The underlying facts and procedural history of this matter are not in

dispute.1      We summarized the factual background in our memorandum

issued    in    connection     with     Appellant’s   first   PCRA   petition.    See

Commonwealth v. Adams, No. 929 EDA 2008, unpublished memorandum

(Pa. Super. filed July 13, 2009).              Thus, we need not repeat them here.
____________________________________________


1
  Relevant to this matter, it is also undisputed that Appellant was 21 years
old at the time he committed the underlying crimes. Appellant’s Brief at 33;
Trial Court Opinion, 10/17/2016, at 3.
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Procedurally, we note this is Appellant’s second PCRA petition, which

Appellant filed on March 28, 2016, over ten years after his judgment became

final.2

          On appeal, Appellant argues he is entitled to PCRA relief under

Montgomery v. Louisiana, 136 S.Ct. 718 (2016), and Miller v. Alabama,

132 S.Ct. 2455 (2012).3 We disagree.

          “[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).                  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 to

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

restrictions are jurisdictional in nature.       Thus, [i]f a PCRA petition is
____________________________________________


2
  The trial court sentenced Appellant on November 22, 2005. Appellant did
not file a direct appeal. Accordingly, Appellant’s judgment, for purposes of
the PCRA, became final on December 22, 2005, upon expiration of the 30-
day period he had to file a direct appeal with this Court.              See
Commonwealth v. Adams, No. 949 EDA 2008, at 2.
3
  In Miller, the U.S. Supreme Court 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, the Unites States
Supreme Court held that Miller was a new substantive rule that, under the
United States Constitution, must be retroactive in cases on state collateral
review. Montgomery, 136 S.Ct. at 736.




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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) (first alteration in original) (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   Brady   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. Holmes, 933 A.2d 57, 60

(Pa. 2007) (“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”) (citing Commonwealth v. Fahy, 737 A.2d 214, 223

(1999)).

      We must first determine whether we can entertain this appeal.         The

order appealed here was entered on July 15, 2016. The notice of appeal,

dated August 22, 2016, was filed on August 29, 2016.         Thus, the instant

appeal is facially untimely.     See Pa.R.A.P. 903(a) (“Except as otherwise

prescribed by this rule, the notice of appeal required by Rule 902 (manner of

taking appeal) shall be filed within 30 days after the entry of the order from

which the appeal is taken”).




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       Appellant does not contest that the instant appeal is facially untimely.

Appellant rather contends that he could not file the instant appeal within the

deadline due to of his inability to access the prison law library while the

deadline for filing the appeal was running. Appellant provided evidence of

correspondence with prison officials showing that Appellant was unable to

access the law library presumably from August 2, 2016,4 until, presumably,

August 22, 2016.5        Appellant, however, provides no explanation why he

waited until August 2, 2016, to look into the filing of a notice of appeal, or

why he did not pursue the option of requesting a notice of appeal package,

as suggested in his response to this Court’s order to show cause.         See

Appellant’s Response to Rule to Show Cause, 10/28/16.          In light of the

foregoing, we are constrained to quash the instant appeal as untimely

filed. See Commonwealth v. Wrecks, 934 A.2d 1287, 1289 (quashing

untimely appeal for lack of jurisdiction).

       Even if the appeal had been timely filed, we would nonetheless

conclude Appellant’s PCRA petition was untimely filed and his claim

meritless.

____________________________________________


4
  August 2, 2016, is the date of correspondence from Appellant to prison
authorities, seeking permission to be allowed to access the law library, after
he had been taken off the list for having “missed 2 days.” Inmate’s Request
to Staff Member, 8/2/2016.
5
 August 22, 2016 is the date of the notice of appeal. The appeal, as noted,
was eventually docketed on August 29, 2016.



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      As noted above, this is Appellant’s second PCRA petition, filed over 10

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

petition is facially untimely. To overcome the untimeliness of the petition,

Appellant argues that he is entitled to review based on Miller as interpreted

in Montgomery.       We have repeatedly held that Miller does not apply to

defendants who were eighteen or older when they committed murders.

See, e.g., Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super.

2016).   It is uncontested that Appellant was an adult at the time of the

underlying crimes.        Accordingly, Appellant has no claim under Miller.

Because Appellant has no claim under Miller, Montgomery does not affect

the timeliness of this matter.

      Appellant also argues that despite the fact he was an adult at the time

of the crimes, Miller should be applied to him because his brain, as is the

case in juveniles, was not fully developed. We rejected a similar contention

in Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013).                       In

Cintora, two appellants, who were nineteen and twenty-one years of age at

the   time   of   their   underlying   crimes,   and   were    sentenced   to   life

imprisonment, claimed:

      [T]hat because Miller created a new Eighth Amendment right,
      that those whose brains were not fully developed at the time of
      their crimes are free from mandatory life without parole
      sentences, and because research indicates that the human mind
      does not fully develop or mature until the age of 25, it would be
      a violation of equal protection for the courts to treat them or
      anyone else with an immature brain, as adults. Thus, they
      conclude that the holding in Miller should be extended to them


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     as they were under the age of 25 at the time of the murder and,
     as such, had immature brains.

Cintora, 69 A.3d at 764. In rejecting the argument, we concluded that “[a]

contention that a newly-recognized constitutional right should be extended

to others does not render their petition timely pursuant to [S]ection

9545(b)(1)(iii).” Id. (emphasis added).   Thus, as in Cintora, Appellant’s

claim that Miller applied to the case sub judice based on his mental

development is without merit.

     Appeal quashed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/2017




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