J-S25008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

TYRONE RICHARDSON,

                            Appellant               No. 3430 EDA 2016


           Appeal from the PCRA Order Entered September 30, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0412141-1984


BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.:                         FILED JUNE 06, 2017

        Appellant, Tyrone Richardson, appeals pro se from the post-conviction

court’s September 30, 2016 order dismissing, as untimely, his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-

9546.    Because we lack jurisdiction due to the untimeliness of Appellant’s

petition, we affirm.

        We briefly describe the procedural history underlying this appeal as

follows. On August 1, 1984, following a jury trial, Appellant was convicted of

first degree murder, robbery, and possession of an instrument of crime. On

April 19, 1985, Appellant was sentenced to life imprisonment for his
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conviction of first degree murder.1 On May 7, 1985, Appellant filed a timely

notice of appeal to this Court. This Court affirmed Appellant’s judgment of

sentence on June 23, 1987.               Commonwealth v. Richardson, 1199

Philadelphia 1985 (Pa. Super. 1987) (unpublished memorandum). Appellant

did not file a petition for allowance of appeal with our Supreme Court.

Therefore, his judgment of sentence became final on July 23, 1987. See 42

Pa.C.S. § 9545(b)(3) (stating that judgment of sentence becomes final at

the conclusion of direct review or the expiration of the time for seeking the

review); Pa.R.A.P. 1113(a) (“[A] petition for allowance of appeal shall be

filed with the Prothonotary of the Supreme Court within 30 days after the

entry of the order of the Superior Court or the Commonwealth Court sought

to be reviewed.”).

       On August 22, 2012, Appellant filed, pro se, the PCRA petition at issue,

which was his first petition under the PCRA or its predecessor, the Post

Conviction Hearing Act.2 In that petition, Appellant — who was 23 years old

at the time he committed the underlying crimes — asserted, pursuant to

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1
  He received a consecutive sentence of 2½ to 5 years’ imprisonment for his
robbery conviction, and a concurrent sentence of 2½ to 5 years’
imprisonment for his possession of an instrument of crime conviction.
2
  This Court and the PCRA court have both acknowledged that there appears
to be no evidence in the certified record of a prior post-conviction relief
petition filed by Appellant. See Commonwealth v. Richardson, 2719 EDA
2014, judgment order per curiam at 2 n.2 (Pa. Super. filed July 30, 2015);
PCRA Court Opinion (PCO), 11/21/2016, at 1 n.1.



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Miller v. Alabama, 132 S.Ct. 2455 (2012), that “mandatory-life-without

parole terms for individuals 18 to 25 years of age in homicide cases”

violates, inter alia, the United States Constitution’s Eighth and Fourteenth

Amendments.          See PCRA Petition,          8/22/2012, at 1-7   (unnecessary

capitalization omitted).       On August 12, 2014, the PCRA court dismissed

Appellant’s petition as untimely, and Appellant subsequently filed a timely

notice of appeal.     On July 30, 2015, in a judgment order per curiam, this

Court vacated the PCRA court’s order and remanded the matter because the

PCRA court had failed to appoint counsel to represent Appellant on his first

PCRA petition. Richardson, 2719 EDA 2014, judgment order per curiam at

2-3.

       Thereafter, the PCRA court appointed Attorney Stephen O’Hanlon to

represent Appellant.          On June 1, 2016, Attorney O’Hanlon filed a

Turner/Finley3 “no-merit” letter and a motion to withdraw as counsel. In

his no-merit letter, Attorney O’Hanlon explained that Miller, 132 S.Ct. at

2460 (stating 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’”), and Montgomery v. Louisiana, 136

S.Ct. 718 (2016) (holding that Miller applies retroactively), do not apply to

Appellant, as he was 23 years old at the time he committed the underlying

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3
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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crimes and, consequently, Appellant does not meet a timeliness exception

under 42 Pa.C.S. § 9545(b)(1).      On July 22, 2016, the PCRA court gave

notice pursuant to Pa.R.Crim.P. 907 that it intended to dismiss Appellant’s

petition.    Appellant did not respond.   On September 30, 2016, the PCRA

court dismissed the petition and granted Attorney O’Hanlon’s motion to

withdraw as counsel of record. The PCRA court explained that “[Appellant],

who was 23 years old at the time of the murder, was over the age of 18

years old when he committed the crime that resulted in his incarceration,

which puts him outside the reach of the Supreme Court’s Miller decision”

and, therefore, he was not entitled to relief. PCO at 4.

      On October 25, 2016, Appellant filed a timely, pro se appeal from the

PCRA court’s September 30, 2016 order. On appeal, he raises the following

issues for our review:
        I.    Did the lower court err in not granting a hearing to
              Appellant to determine whether mandatory life-without-
              parole terms for individuals 18 to 25 years of age in
              homicide cases violates the United States Constitution’s
              Fourteenth Amendment Equal Protection Clause and
              Pennsylvania’s Constitution’s Article 1 § 25?

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

Appellant’s Brief at 2 (unnecessary capitalization omitted).

      At the outset, we note that our standard of review regarding an order

denying post-conviction relief is whether the findings of the court are


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“supported by the record and free of legal error.”          Commonwealth v.

Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citations omitted).          We must

begin by addressing the timeliness of Appellant’s petition because “[t]he

PCRA’s time restrictions are jurisdictional in nature. … Without jurisdiction,

we simply do not have the legal authority to address the substantive

claims.”    Id. (citations omitted).    With respect to timeliness, the PCRA

provides, in pertinent part, the following:
      (b) Time for filing petition.--

           (1) Any petition under this subchapter, including a second
           or subsequent petition, shall be filed within one year of the
           date the judgment becomes final, unless the petition
           alleges and the petitioner proves that:

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

              (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.

           (2) Any petition invoking an exception provided in
           paragraph (1) shall be filed within 60 days of the date the
           claim could have been presented.

42 Pa.C.S. § 9545(b)(1)-(2).

      In this case, as stated above, Appellant’s judgment of sentence

became final on July 23, 1987.         Therefore, his present petition, filed on

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August 22, 2012, is plainly untimely, and Appellant must meet one of the

exceptions to the timeliness requirement set forth in section 9545(b)(1)(i)-

(iii), supra. Appellant contends that, based on the Supreme Court’s holding

in Miller, he satisfies both the ‘governmental interference’ exception of 42

Pa.C.S. § 9545(b)(1)(i) and the ‘retroactive constitutional right’ exception of

section 9545(b)(1)(iii). See Appellant’s Brief at 4.4 In Miller, as mentioned

supra, the Supreme Court established a new constitutional right by 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 unusual punishments.’”          Miller, 132 S.Ct. at 2460 (emphasis added).

After Miller, the United States Supreme Court issued Montgomery,

clarifying that Miller applies retroactively. Montgomery, 136 S.Ct. at 735-

36.


____________________________________________


4
  It is not clear to this Court how the Supreme Court’s holding in Miller
relates to governmental interference under 42 Pa.C.S. § 9545(b)(1)(i). As
the PCRA court observed, Appellant “only relied on a general Miller claim in
seeking relief in his PCRA petition.”         PCO at 4 n.2.        See also
Commonwealth’s Brief at 8 n.2 (“[Appellant] also asserts that he satisfies
the requirements of [42 Pa.C.S.] § 9545(b)(1)(i), which concerns unlawful
interference with the presentation of claims by government officials. He fails
to identify any government official who purportedly interfered with his
presentation of his claim, let alone anything even remotely suggesting
unlawful governmental interference.”) (citation omitted). Because Appellant
has failed to develop this claim, we conclude it is waived. See Albrecht,
994 A.2d at 1095 (determining that the appellant did not sufficiently develop
his claim of governmental interference and noting that a failure to develop a
claim waives it) (citation omitted).



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       Initially, Appellant has complied with the 60-day rule of section

9545(b)(2), as his August 22, 2012 petition was filed 58 days after Miller

was decided on June 25, 2012.5 Notwithstanding, Appellant has not shown

that the rule created in Miller applies to him.       Our review of the record

reveals that Appellant was born on February 4, 1960, and he committed the

offenses    for   which he      is now     imprisoned on December   11, 1983.

Accordingly, Appellant was 23 years old at the time of the underlying

crimes.6

       Nevertheless, on appeal, Appellant argues that “[i]t is clear that based

on the growing findings and developments in neuroscience[,] … Appellant’s

brain was not fully formed.” Appellant’s Brief at 5. He claims that “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[,]” and “to not consider

or bar relief where an individual is similarly situated is denial of equal

protection of the law and cruel and unusual punishment.” Id.

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5
  This Court has “interpret[ed] Montgomery as making retroactivity under
Miller effective as of the date of the Miller decision.” Commonwealth v.
Secreti, 134 A.3d 77, 82 (Pa. Super. 2016). Thus, “the Miller rule of law
‘has been held’ to be retroactive for purposes of collateral review as of the
date of the Miller decision on June 25, 2012.” Id.
6
  Appellant does not contend that he was under 18 at the time he committed
his crimes. See Appellant’s Brief at 5 “(In the instant case, Appellant was
23 years old at the time of the crime.”).



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      We disagree, and have already denied such claims.          Specifically, in

Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013), the co-

appellants, who were 19 and 21 years old at the time of their crimes,

likewise argued that Miller applied to them because a human brain does not

fully develop until the age of 25, and because “it would be a violation of

equal protection for the courts to treat them[,] or anyone else with an

immature brain, as adults.”   Cintora, 69 A.3d at 764.      In rejecting these

arguments, this Court stressed that the co-appellants’ “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).

      We recently reaffirmed Cintora’s holding in Commonwealth v.

Furgess, 149 A.3d 90 (Pa. Super. 2016). In that case, the appellant — who

was 19 years old when he committed his crimes — contended that he “may

invoke   Miller   because   he   was   a   ‘technical   juvenile’”   based    on

“neuroscientific theories regarding immature brain development….”         Id. at

94. Relying on Cintora, we restated 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).” Id.

      In light of Cintora and Furgess, it is well-established that the rule

announced in Miller cannot apply to Appellant, who was 23 years old when

he committed the offenses for which he is now incarcerated.          Appellant’s

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arguments that Miller should apply to his case do not satisfy the timeliness

exceptions   of   either   section   9545(b)(1)(i)   or   section   9545(b)(1)(iii).

Therefore, after our review of the record and Appellant’s claims, we conclude

that Appellant’s PCRA petition is time-barred and was properly dismissed.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/6/2017




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