J-S64017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JAMOD ROHN

                            Appellant                  No. 444 EDA 2016


                  Appeal from the PCRA Order January 15, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1004381-1996


BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY SOLANO, J.:                          FILED OCTOBER 21, 2016

        Appellant, Jamod Rohn, appeals pro se from the order dismissing his

fifth petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. We affirm.

        Appellant pled guilty to two counts of third-degree murder, one count

of rape, and one count of criminal conspiracy. On September 7, 1999, the

trial court sentenced Appellant to consecutive terms of 60 to 240 months’

imprisonment on each of the third-degree murder charges, and 120 to 240




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S64017-16


months’ imprisonment on the rape charge, with no further penalty imposed

for the criminal conspiracy charge.1 Appellant did not file a direct appeal.

       Appellant unsuccessfully sought post-conviction relief in PCRA petitions

that he filed in 2004, 2008, 2010, and 2012.         Appellant filed the PCRA

petition at issue in this appeal on December 3, 2015.       On December 17,

2015, the PCRA court issued a Criminal Rule 907 notice of intent to dismiss

Appellant’s petition on the basis that it was untimely and that Appellant had

failed to plead an exception to the PCRA’s time bar. Appellant did not file a

response.     By an order entered January 15, 2016, the PCRA court denied

Appellant’s petition. This appeal followed.

       Within his appellate brief, Appellant has not presented a statement of

questions involved, in contravention of Pa.R.A.P. 2111 and 2116 (providing

that the brief of the appellant shall include a statement of questions

involved, which “must state concisely the issues to be resolved, expressed in

the terms and circumstances of the case . . .”).      Nonetheless, we discern

from the argument section of Appellant’s brief that he seeks relief pursuant

to Miller v. Alabama, 132 S. Ct. 2455 (2012), which held that a sentence

of life imprisonment without the possibility of parole is unconstitutionally

cruel and unusual punishment when imposed upon juveniles convicted of

____________________________________________


1
  Appellant’s aggregate sentence is 240 to 720 months (20 to 60 years) of
imprisonment.




                                           -2-
J-S64017-16


committing murder.        The essence of Appellant’s claim is that although he

was 24 years old when he committed the aforementioned offenses, he

should be treated as a juvenile under Miller because he had a “juvenile

brain that d[id] not mature until age 25.” Appellant’s Brief at 7.

        Before considering the merits of Appellant’s claim, we must first

determine whether the PCRA court correctly concluded that Appellant’s PCRA

petition was untimely filed, such that the PCRA court lacked jurisdiction to

consider it.

         The   timeliness    of   a   post-conviction   petition   is   jurisdictional.

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

becomes final unless the petition alleges and the petitioner proves one of the

three exceptions to the time limitations for filing the petition set forth in

Section 9545(b)(1) of the statute.2 A PCRA petition invoking one of these

____________________________________________


2
    The three exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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

(Footnote Continued Next Page)


                                           -3-
J-S64017-16


statutory exceptions must “be filed within 60 days of the date the claims

could have been presented.” Hernandez, 79 A.3d at 651-52; see also 42

Pa.C.S. § 9545(b)(2). Asserted exceptions to the time restrictions for the

PCRA must be included in the petition and may not be raised for the first

time on appeal.         Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.

Super. 2007). This Court’s standard of review regarding an order dismissing

a petition under the PCRA is “to determine whether the determination of the

PCRA court is supported by the evidence of record and is free of legal error.”

Commonwealth v. Barndt, 74 A.3d 185, 191-192 (Pa. Super. 2013). The

PCRA court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Id.

      Here, Appellant’s judgment of sentence became final on October 7,

1999, thirty days after the time period for filing a direct appeal with this

Court expired. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a). Appellant

filed this fifth PCRA petition on December 3, 2015, more than 15 years after

his judgment of sentence became final. Therefore, the petition is patently


                       _______________________
(Footnote Continued)

      (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).




                                            -4-
J-S64017-16


untimely unless Appellant has satisfied his burden of pleading and proving

that one of the enumerated exceptions applies. Hernandez.

       In his PCRA petition, Appellant acknowledges the time bar and

concedes that his petition is untimely if no exception applies. PCRA Petition,

12/3/15, at 2-3. However, Appellant asserts he is within an exception under

42 Pa.C.S. § 9545(b)(1)(iii), which provides that a petitioner may seek relief

when there 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.”     Id.     Appellant’s petition references the United States

Supreme Court’s decision in Miller, and his appellate brief does the same.

See Appellant’s Brief at 2-15.3

       Appellant’s claim fails. The record reflects that Appellant was born on

September 5, 1967, and the offenses of which he was convicted occurred on

December 30, 1990, when Appellant was 22 years old. Criminal Docket at

3; N.T., 9/17/97, at 12. The decision in Miller applies only to defendants

convicted of murder who were “under the age of 18 at the time of their

crimes.” Miller, 132 S. Ct. at 2460. Accordingly, we agree with the PCRA


____________________________________________


3
  In Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Supreme Court
held that the decision in Miller v. Alabama applies retroactively to cases on
state collateral review.




                                           -5-
J-S64017-16


court that Miller v. Alabama does not apply to Appellant because Appellant

was not a juvenile under Miller when he committed the underlying offenses.

       Appellant seeks to avail himself of the holding of Miller by asserting

that he was a de facto juvenile when he committed the offenses because of

“the scientifically verified fact that the juvenile brain does not mature until

age 25 . . .”       Appellant’s Brief at 7.         But this is an argument for an

extension of the holding 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.     “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).”

Commonwealth. v. Cintora, 69 A.3d 759, 764 (Pa. Super. 2013)

(emphasis in original); see Commonwealth v. Furgess, 2016 WL 5416640

(Pa. Super. Sept. 28, 2016).4

       For these reasons, the PCRA court lacked jurisdiction to consider

Appellant’s untimely PCRA petition.             We therefore affirm the PCRA court’s

order denying Appellant post-conviction relief.

       Order affirmed.



____________________________________________


4
  Because of our disposition of this case, we need not decide whether
Appellant’s claim also fails because it was not filed within the 60-day
deadline set forth in Section 9545(b)(2) of the PCRA.



                                           -6-
J-S64017-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/2016




                          -7-
