J-S80009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

LEWIS JERRY HARE

                        Appellant                   No. 792 MDA 2016


                Appeal from the PCRA Order April 22, 2016
               In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0000709-1974


BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.

JUDGMENT ORDER BY LAZARUS, J.:                FILED NOVEMBER 30, 2016

     Lewis Jerry Hare appeals, pro se, from the trial court’s order

dismissing his untimely third petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

     In 1979, Hare was convicted, after a jury trial, of first-degree murder.

The court sentenced Hare to life in prison without the possibility of parole.

Hare was 19 years old at the time he committed the offenses.

     On appeal, Hare contends that his mandatory sentence of life without

parole is unconstitutional under the Eighth Amendment to the United States

Constitution and Article I, § 13 of the Pennsylvania Constitution as

expressed in Miller v. Alabama, 132 S. Ct. 2455 (2012).        In Miller, the

United States Supreme Court held that sentencing a juvenile convicted of a

homicide offense to mandatory life imprisonment without parole violates the
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Eighth Amendment’s prohibition on cruel and unusual punishment.        Id. at

2464.    Accordingly, such sentences cannot be imposed unless a judge or

jury first considers mitigating circumstances. Id. at 2475. The holding in

Miller, however, was limited to those offenders who were under the age of

18 at the time they committed their crimes. Id. at 2460.

        Subsequently, in Montgomery v. Louisiana, 136 S. Ct. 718 (2016),

the Supreme Court held that “Miller announced a substantive rule of

constitutional law,” id. at 736, and that “Miller is retroactive because ‘it

necessarily carr[ies] a significant risk that a defendant’ . . . faces a

punishment that the law cannot impose upon him.” Id. at 734. Therefore,

under Montgomery, Miller is to be applied retroactively to cases on state

collateral review through the PCRA’s retroactivity exception, 42 Pa.C.S. §

9545(b)(1)(iii). Montgomery, supra at 736.

        Because Hare was 19 years old at the time he committed the

underlying offenses, the holdings in both Miller and Montgomery are

inapplicable and he is not entitled to relief.1 Van Horn, supra.

        To the extent that Hare claims that he should benefit from the Miller

and Montgomery decisions because research indicates that “the human
____________________________________________


1
  We note that on October 15, 2012, effective immediately, the Pennsylvania
Legislature amended 18 Pa.C.S.A. § 1102(a)(1) (first-degree murder) and
(b) (second-degree murder) to provide sentencing standards for juvenile
offenders convicted of first- and second-degree murder after June 24, 2012,
so as to comport with Miller.




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mind does not fully develop or mature until the age of 25[,]” Appellant’s

Brief, at 6, he is entitled to no relief. Rather than presenting an argument

that is within the scope of the Miller decision, Hare asks us to extend

Miller’s holding to persons convicted of murder who were over 18 at the

time of their crimes.    We rejected this argument in Commonwealth v.

Furgess, 2016 PA Super 219 (Pa. Super. 2016).             See id. (court failed to

extend Miller holding and apply PCRA’s newly-recognized constitutional right

exception to 19-year-old defendant convicted of homicide; defendant

claimed he was “technical juvenile” and relied on neuroscientific theories

regarding immature brain development to support claim).           Neither federal

nor state case law deems a life sentence without parole unconstitutional for

individuals who may have had a diminished mental capacity when they

committed the offenses. See also Commonwealth v. Lesko, 15 A.3d 345,

408 n.31 (Pa. 2011) (noting U.S. Supreme Court has chosen “strictly

chronological,   hard   lines”   in   cases   involving    age   as   disqualifying

constitutional factor for eligibility of life without parole sentences; those over

defined-age get no benefit from constitutional decisions, irrespective of

subjective "psychological and emotional age and level of maturity.”).

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2016




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