J-S02036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

VICTOR BLANT

                            Appellant                 No. 2020 EDA 2016


                     Appeal from the PCRA Order June 3, 2016
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-1011251-1994


BEFORE: FORD ELLIOTT, P.J.E., STABILE, J., and MOULTON, J.

MEMORANDUM BY MOULTON, J.:                              FILED MAY 25, 2017

       Victor Blant appeals, pro se, from the June 3, 2016 order of the

Philadelphia County Court of Common Pleas dismissing his third petition filed

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46, as

untimely. We affirm.1

       On November 1, 1995, a jury convicted Blant of second-degree

murder, robbery, conspiracy, and possession of an instrument of crime. 2 On

January 4, 1996, the trial court sentenced Blant to life imprisonment for
____________________________________________


       1
         On January 4, 2017, the Commonwealth filed with this Court a
motion to accept its brief as timely filed. The Commonwealth’s brief was due
on November 23, 2016 but was not filed until January 4, 2017. Although we
generally do not condone untimely filings, we understand the present
situation in the Appeals Unit of Philadelphia District Attorney’s Office, as
outlined in its motion. Therefore, having found no prejudice to Blant, we
grant the Commonwealth’s motion and accept its brief as timely filed.
       2
           18 Pa.C.S. §§ 2502(b), 3701(a), 903, and 907(a), respectively.
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murder and a concurrent term of 5 to 10 years’ imprisonment for robbery.

Blant timely appealed to this Court, which affirmed his judgment of sentence

in part on January 31, 1997.3 Blant filed a timely petition for allowance of

appeal with the Pennsylvania Supreme Court, which was denied on June 24,

1997.

        Blant filed the instant PCRA petition, his third, on August 2, 2012. On

April 27, 2016, the PCRA court issued notice of its intent to dismiss the

petition under Pennsylvania Rule of Criminal Procedure 907.          Blant filed a

response to the Rule 907 notice on May 9, 2016.           On June 3, 2016, the

PCRA court dismissed Blant’s petition as untimely.

        On appeal, Blant raises the following issues:
            1. Did the imposition of [Blant’s] life without parole
               sentence for a homicide offen[s]e violate the Eighth and
               Fourteenth Amendments’ prohibition against cruel and
               unusual punishments under the United States
               Constitution and Article I § 13 of the Pennsylvania
               Constitution? Did the imposition of [Blant’s] life without
               parole sentence for a homicide offen[s]e violate the
               Fourteenth Amendment equal protection rights found in
               Obergefell v. Hodges[]?

            2. Did the PCRA court commit reversible legal error when
               it denied [Blant’s] PCRA Petition when it did not
               recognize that the United States Supreme Court’s ruling
               in Miller v. Alabama, and Jackson v. Hobbs, applies
               to the instant life without parole sentence, for juveniles
               and those with less developed brains?

Blant’s Br. at 4.
____________________________________________


        3
        On direct appeal, this Court vacated Blant’s robbery sentence but
affirmed the remainder of his judgment of sentence.


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      Our review of an order denying PCRA relief is limited to determining

“whether the decision of the PCRA court is supported by the evidence of

record and is free of legal error.” Commonwealth v. Melendez-Negron,

123 A.3d 1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s

factual findings “unless there is no support for [those] findings in the

certified record.” Id.

      We must first address the timeliness of Blant’s PCRA petition, which is

a jurisdictional requisite.   See Commonwealth v. Brown, 111 A.3d 171,

175 (Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015). A petitioner must

file a PCRA petition within one year of the date his or her judgment of

sentence becomes final. 42 Pa.C.S. § 9545(b)(1). Here, the Pennsylvania

Supreme Court denied Blant’s petition for allowance of appeal on June 24,

1997. Because Blant did not seek review with the United States Supreme

Court, his judgment of sentence became final 90 days later, on September

22, 1997. See 42 Pa.C.S. § 9545(b)(3); U.S. S. Ct. R. 13. Blant had one

year from that date, or until September 22, 1998, to file a timely PCRA

petition.   Thus, the instant PCRA petition, filed on August 2, 2012, was

facially untimely.

      To overcome the one-year time bar, Blant was required to plead and

prove one of the following exceptions:     (i) unconstitutional interference by

government officials; (ii) newly discovered facts that could not have been

previously ascertained with due diligence; or (iii) a newly recognized

constitutional right that has been held to apply retroactively.       See 42


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Pa.C.S. § 9545(b)(1)(i)-(iii). To invoke one of these exceptions, Blant must

have filed his petition “within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2).

       In his PCRA petition, Blant averred that his petition was timely filed

because he asserted a newly recognized constitutional right that was held to

apply retroactively. See 42 Pa.C.S. § 9545(b)(1)(iii). Blant relied on Miller

v. Alabama, 132 S.Ct. 2455, 2460 (2012), in which the United States

Supreme Court held that a sentence of life imprisonment without the

possibility of parole was unconstitutional when imposed on defendants who

were “under the age of 18 at the time of their crimes.”4 Subsequently, in

Montgomery v. Louisiana, 136 S.Ct. 718, 736 (2016), the Supreme Court

held that Miller applied retroactively to cases on state collateral review.

       Here, Blant was 20 years old at the time he committed the offenses for

which he was convicted.5         This Court has held that Miller’s prohibition of

life-without-parole sentences does not apply to defendants who were 18

years of age or older at the time of their offenses. See Commonwealth v.

Cintora, 69 A.3d 759, 764 (Pa.Super. 2013) (where appellants were 19 and

21 at time of their offenses, “the holding in Miller [did] not create a newly-

recognized constitutional right that can serve as the basis for relief”);
____________________________________________


       4
        Blant filed the instant PCRA petition within 60 days of the Miller
decision, thereby satisfying the requirement of section 9545(b)(2).
       5
        Blant was born on December 6, 1973 and committed the offenses on
July 31, 1994.


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accord Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.Super. 2016)

(reaffirming Cintora’s holding that petitioners who were 18 or older “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)”).   Therefore, because Blant

was 20 years old at the time of his offenses, Miller does not apply.

      In his brief, Blant contends that even though he was older than 18 at

the time of his crimes, Miller’s holding should apply to him because his

brain was as immature as that of a juvenile.        According to Blant, “the

adolescent process does not end at the age of 17, but 25.” Blant’s Br. at 24.

However, we rejected this precise argument in Cintora.       In Cintora, the

appellants had argued that Miller should apply to defendants who were

under the age of 25 at the time of their offenses “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.” 69 A.3d at 764. We stated

that the “contention that a newly-recognized constitutional right should be

extended to others does not render their petition timely pursuant to section

9545(b)(1)(iii).” Id. (emphasis in original).

      Finally, Blant argues that his sentence of life in prison without the

possibility of parole violates the Equal Protection Clause of the Fourteenth

Amendment, citing Obergefell v. Hodges, 135 S.Ct. 2584 (2015).            In


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Obergefell, the United States Supreme Court held that state prohibitions on

same-sex marriage violate the Fourteenth Amendment. We agree with the

PCRA court that “Obergefell in no way bears upon [Blant’s] own situation of

being an adult at the time he committed the murder, and does not

demonstrate [his] entitlement to relief under Miller.” PCRA Ct. Op., 6/3/16,

at 2 n.5.

      Accordingly, because Blant failed to plead and prove an exception to

the one-year time bar, the PCRA court properly dismissed his petition as

untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/25/2017




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