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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                       1    IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                      v.

CHARLES RICKETTS

                            Appellant                        No. 2820 EDA 2016


                Appeal from the PCRA Order dated July 21, 2016
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0025181-1993

BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.

MEMORANDUM BY SOLANO, J.:                                      FILED MAY 09, 2017

        Appellant Charles Ricketts appeals pro se from the order dismissing as

untimely his second petition filed pursuant to the Post Conviction Relief Act,

42 Pa.C.S. §§ 9541-46. We affirm.

        On March 14, 1994, Appellant pleaded           guilty to second-degree murder

and was sentenced to life imprisonment without parole.                   Appellant was

twenty years old at the time of the murder.

        Appellant did not file   a   direct appeal. On August 22, 2012, Appellant

filed an untimely pro se PCRA petition in which he relied on                   Miller    v.

Alabama, 567 U.S. 460, 132           S. Ct. 2455   (2012) (holding that sentences of

mandatory life imprisonment without parole imposed upon juveniles who

were under the age of 18 at the time they committed murder are

unconstitutional).         The   PCRA    court   appointed    counsel,   who     filed   a
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Turner/Finley' "no merit" letter            and motion to withdraw.   On January 9,

2013, the court dismissed Appellant's PCRA petition and granted counsel's

motion to withdraw. This Court affirmed, agreeing with the PCRA court that

Appellant's petition was untimely and that Appellant failed to properly plead

an exception to the PCRA's time bar.                See Commonwealth v. Ricketts,

588 EDA 2013, at 4 (Pa. Super. Sept. 5, 2013) (unpublished memorandum),

appeal denied, 85 A.3d 483                (Pa. Feb. 12, 2014).   We explained that

Appellant could not rely on the newly -recognized constitutional               right

exception, 42 Pa.C.S.        §   9545(b)(1)(iii):

        [T]he Miller Court recognized a constitutional right for juveniles
        under the age of eighteen, holding 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 unusable punishments.' Miller, [132 S. Ct.] at 2460
        (emphasis added). Here, Appellant concedes that he was twenty
        years old at the time he committed the crime of second-degree
        murder.  .   . Therefore, the holding in Miller does not create a
                         .


        newly -recognized constitutional right that can serve as the basis
        for relief for Appellant. See 42 Pa.C.S.A. § 9545(b)(1)(iii);
        Miller, supra at 2460.
Id. at 7-8 (footnote omitted).2           The Supreme Court of Pennsylvania denied

Appellant's petition for allowance of appeal.




1     Commonwealth v. Turner,
     See                                               544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213                 (Pa. Super. 1988) (en banc).
2
  In a footnote, we also noted that at that time, Miller had not been held to
apply retroactively. See 588 EDA 2013 at 8 n.7. However, this was not the
primary rationale for our decision.


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        On March 25, 2016, Appellant filed the pro se petition before us,

seeking relief under      Montgomery v. Louisiana, 136           S. Ct. 718   (2016), in

which the Supreme Court held that         Miller    v. Alabama applied retroactively

to cases on collateral review. On May 25, 2016, the Commonwealth filed an

Answer and Motion to Dismiss Appellant's Petition.              On June 9, 2016, the

PCRA    court sent Appellant    a   notice pursuant to Pa.R.Crim.P. 907, stating its

intent to dismiss his petition without         a   hearing.3   Appellant did not file   a


response to the Rule 907 notice.               On July 21, 2016, the PCRA court

dismissed the petition.

        Appellant filed   a   notice of appeal that was docketed on August 26,

2016.        By order entered October 18, 2016, this Court directed Appellant to

show cause why his appeal should not be quashed as untimely.                  Appellant

filed   a    response asserting that his appeal was timely filed on August 18,

2016.        On December 1, 2016, this Court discharged the show -cause order

and deferred resolution of the timeliness issue to this panel.

        On December 9, 2016, Appellant filed his brief, in which he raises the

following issues:

        I.         the lower court err in not granting a hearing to
                 Did
        Appellant to determine if mandatory life -without -parole terms for
        individuals 18 to 25 years of age in homicide cases violates the
        Equal Protection Clauses under the United States Constitution


3 The PCRA court initially sent the Rule 907 notice to Appellant on June 1,
2016, using the wrong inmate number. After the notice was returned to the
court, a new notice, with the proper inmate number, was mailed to Appellant
on June 9, 2016. PCRA Ct. Op., 10/20/16, at 2 n.1.


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        Fourteenth Amendment and the Pennsylvania Constitution's
        Article Section 25?

        II.    Did the lower court err in not granting a hearing to
        Appellant to determine if mandatory life -without -parole terms for
        individuals 18 to 25 years of age in homicide cases violates the
        Cruel and Unusual Punishment Clauses under the United States
        Constitution's     Eighth      Amendment      and     Pennsylvania
        Constitution's Article I Section 13?

        III.   Did the lower court err when it did not grant a hearing to
        Appellant to determine if mandatory life -without -parole terms for
        individuals 18 to 25 years of age in homicide cases violates the
        United States Constitution Fourteenth Amendment's Due Process
        rights when the fact finders were not allowed to consider age as
        an element of the crime for sentencing purposes?

Appellant's Brief at     2   (excess capitalization removed).

                               Timeliness of this Appeal
        Before we address Appellant's issues, we must determine whether

Appellant timely filed his notice of appeal. See Commonwealth v. Cooper,

710 A.2d 76, 78 (Pa. Super. 1998) (holding this Court must address

timeliness of appeal sua sponte because it implicates our jurisdiction).

        In order for this Court to have jurisdiction, Appellant's notice of appeal

must have been filed within thirty days of the PCRA court's order disposing

of Appellant's PCRA petition. See Pa.R.A.P. 903(a) (time for appeal);

Cooper, 710 A.2d at 78 (court lacks jurisdiction if notice of appeal                 is   not

timely filed). Under the "prisoner mailbox rule,"         a     pro se prisoner's notice of

appeal is deemed filed "on the date that the appellant deposits the appeal

with    prison       authorities   and/or   places   it    in     the   prison   mailbox."

Commonwealth v. Jones, 700 A.2d 423, 426                  (Pa. 1997).     Where the facts

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concerning the timeliness of          a   notice of appeal are in dispute,      a    remand for

an evidentiary hearing may be necessary.                        Id. at 426    n.3.     "Where,

however, the opposing party does not challenge the timeliness of the appeal

and the prisoner's assertion of timeliness is plausible, we may find the

appeal timely without remand." Cooper, 710 A.2d at 79 (citing Jones, 700

A.2d at 426 n.3).

        In Cooper, the proof of service for the notice of appeal stated that the

notice was timely filed, and the court received the notice two days after the

thirty -day period expired. Cooper, 710 A.2d at 79. Further, neither party

raised the issue of the timeliness of the appeal.                 Id.   This Court held that,

under those circumstances, there was "plausible" evidence that the notice

was timely, and we therefore could address the merits of the appeal.                       Id.;
see also Commonwealth v. Patterson, 931 A.2d 710, 714 (Pa. Super.

2007) (deeming appeal timely based on the date on the notice of appeal and

the fact that the court received it three days after the thirty -day period

expired).

        In this case, the PCRA court's order dismissing Appellant's petition was

docketed on July 21, 2016.                    Because the 30th day fell on Saturday,

August 20, 2016, Appellant had until Monday, August 22, 2016, to file                         a


timely notice of appeal. See              1   Pa.C.S.   §   1908 ("Whenever the last day of

any [period of time referred to in any statute] shall fall on Saturday or

Sunday    .   .   .   such day shall be omitted from the computation"). According to


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the trial court docket, Appellant's notice of appeal was filed on August 26,

2016, four days late.      However, the Commonwealth does not challenge the

timeliness of this appeal. The notice of appeal and accompanying certificate

of service are dated August 18, 2016, which          is   within the thirty -day filing

period.    Moreover, in his response to our rule to show cause, Appellant

provided evidence of      a   deduction from his prison account for postage on

August 18, 2016.         Under these circumstances, we hold that there               is

"plausible" evidence that Appellant timely mailed his notice of appeal. See

Jones, 700 A.2d at 426; Cooper, 710 A.2d at 79.                We therefore will not

quash the appeal on that basis.

                   Timeliness of Appellant's PCRA Petition
        The PCRA court dismissed Appellant's petition as untimely.

        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. The PCRA court's findings will
        not be disturbed unless there is no support for the findings in the
        certified record.

Commonwealth v. Hill, 149 A.3d 362, 364-65                (Pa. Super. 2016) (citation

and internal quotation marks omitted).

        We have explained:

               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 is final unless the petition alleges and the
        petitioner proves one of the three exceptions to the time


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        limitations for filing the petition set forth in Section 9545(b)(1)
        of the statute. See 42 Pa.C.S. § 9545(b).

Commonwealth v. Furgess, 149 A.3d 90, 92                   (Pa. Super. 2016) (footnote

omitted).

        Appellant's judgment of sentence became final on April 13, 1994             See

Ricketts, 588     EDA 2013 at 4.       The instant petition is therefore untimely,

unless Appellant can satisfy an exception to the PCRA's time bar.                 In his

petition, Appellant relied on Section 9545(b)(1)(iii), which applies when "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)(iii).

        Appellant asserts that Miller v. Alabama, made retroactive by

Montgomery       v.   Louisiana, recognized       a   new constitutional right sufficient

to overcome the PCRA's time bar.          He avers       that, although he was twenty

years old when he committed murder, and "although the United States

Supreme Court dealt with the diminished culpability of those under 18 years

of age[,] it is evident that the Court's rationales and conclusions should be

equally applied in this case." Appellant's Brief at 5.

        We have already held that because Appellant was twenty years old

when he committed the murder, "the holding in                 Miller   does not create   a


newly -recognized constitutional right that can serve as the basis for relief for

Appellant." Ricketts, 588 EDA 2013 at 7.

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        Montgomery,       which   was     decided   after    our   consideration     of

Appellant's first PCRA petition, does not change the fact that "petitioners

who were older than 18 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)." Furgess, 149 A.3d at 94. Thus, the           PCRA     court correctly

dismissed Appellant's PCRA petition as untimely.

        Order affirmed.

Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 5/9/2017




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