J-S26044-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 IRVING JEFFERSON                         :
                                          :
                    Appellant             :   No. 2882 EDA 2018

          Appeal from the PCRA Order Entered September 21, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-1115001-1968


BEFORE:    PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                          FILED JUNE 04, 2019

      Irving Jefferson (Jefferson) appeals pro se from the order entered by

the Court of Common Pleas of Philadelphia County (PCRA court) dismissing

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

Pa.C.S. §§ 9541-9546, as untimely. We affirm.

      We take the following relevant facts and procedural history from this

Court’s June 7, 2011 memorandum filed in one of Jefferson’s previous appeals

and our independent review of the record. A jury convicted Jefferson of first-

degree murder, aggravated robbery, and carrying a concealed deadly weapon

on February 28, 1970. The charges stemmed from the September 27, 1968

stabbing and subsequent death of the victim, William James Calhoun.

Jefferson was 19 years old at the time of the offense. The trial court sentenced

him to life in prison on the murder charge and a term of not less than five nor


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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more than twenty years’ incarceration on the robbery charge, with no further

penalty for the weapons offense. Our Supreme Court affirmed the judgment

of sentence on October 12, 1971. (See Commonwealth v. Jefferson, 281

A.2d 852 (Pa. 1971)). Jefferson’s judgment of sentence became final on or

about January 12, 1972, when his time to file a writ of certiorari with the

United States Supreme Court expired. See U.S. S.Ct. R. 13.

       Jefferson thereafter unsuccessfully litigated several PCRA petitions. He

filed the instant pro se petition on May 14, 2012, and an amendment thereto

on July 24, 2012, in which he argued a right to relief based on the United

States Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012).1

After issuing notice of its intent to do so, the PCRA court dismissed the petition

as untimely. See Pa.R.Crim.P. 907(1). This timely appeal followed.

       Jefferson invokes the applicability of the newly-recognized constitutional

right exception at Section 9545(b)(1)(iii) of the PCRA by arguing that his life

sentence is unconstitutional under Miller.       (See Amended PCRA Petition,




____________________________________________


1 In Miller, the United States Supreme Court held that it is unconstitutional
for states to sentence juvenile homicide defendants to mandatory sentences
of life imprisonment without the possibility of parole. See Miller, supra at
465. In Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the Court
determined that its Miller holding constituted a substantive rule of
constitutional law that must be applied retroactively to cases on collateral
review. See Montgomery, supra at 736.




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7/24/12, at 1; Jefferson’s Brief, at 6).2 However, “[b]efore we can address

the merits of the issues raised, we must determine whether Appellant has

established that his PCRA petition was timely filed, as the time-bar is

jurisdictional. 42 Pa.C.S. § 9545(b).” Commonwealth v. Graves, 197 A.3d

1182, 1185 (Pa. Super. 2018).            “A PCRA petition, including a second or

subsequent petition, shall be filed within one year of the date the underlying

judgment becomes final.”         Id. (citation omitted).   “[A] judgment becomes

final at the conclusion of direct review, including discretionary review in the

Supreme Court of the United States and the Supreme Court of Pennsylvania,

or at the expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).

       Here, Jefferson’s PCRA petition is patently untimely because he filed it

more than 40 years after his judgment of sentence became final. Therefore,

we have no jurisdiction to consider it unless he pled and proved one of the

three limited exceptions to the PCRA’s one-year time limitation set forth in

Section 9545:

       (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
____________________________________________


2 When reviewing issues arising from the denial of PCRA relief, we must
determine whether the PCRA court’s ruling is supported by the record and free
of legal error. See Commonwealth v. Bush, 197 A.3d 285, 286–87 (Pa.
Super. 2018).

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      (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)(i)-(iii); see also Graves, supra at 1186.

      As previously noted, Jefferson argues that his life sentence is

unconstitutional pursuant to Miller, thereby invoking the newly recognized

and retroactively applied constitutional right exception. (See Jefferson’s Brief,

at 6). While Jefferson avers that he was 17 years old at the time of his offense,

the documents attached to his PCRA petition reflect that he was instead 19.

(See Amended PCRA petition at 3, Exhibits A-B (listing date of birth as October

30, 1949); see also PCRA Court Opinion, 10/02/18, at 1).

      Our case law is clear that “the Miller decision applies to only those

defendants who were under the age of 18 at the time of their crimes.”

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

omitted).

            This Court has determined that a petitioner who was not a
      juvenile at the time of his crime may not invoke Miller and
      Montgomery to establish an exception to the PCRA’s time-bar.
      In Furgess, this Court . . . held that petitioners who were older
      than eighteen at the time they committed murder are not within
      the ambit of the Miller decision and, therefore, may not rely on
      that case to satisfy the time-bar exception set forth in Section
      9545(b)(1)(iii). See Furgess, at 94. In Commonwealth v.
      Woods, 179 A.3d 37, 44 (Pa. Super. 2017) this Court further
      found Miller to be inapplicable where the appellant was eighteen
      years, thirty-six days old when he committed murder. See also
      Commonwealth v. Rodriguez, 174 A.3d 1130 (Pa. Super. 2017)
      (“Appellant acknowledges that he was eighteen years old at the
      time he committed the murder; however, he argues,
      nevertheless, that he may invoke Miller because his immature

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      and/or impulsive brain made him similar to a juvenile. Thus,
      Appellant seeks an extension 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. However, this Court
      previously has rejected such an argument.”) (citation omitted).

Commonwealth v. Pew, 189 A.3d 486, 490–91 (Pa. Super. 2018), appeal

denied, 200 A.3d 939 (Pa. 2019) (one case citation omitted; case citation

formatting provided).

      Jefferson, as an adult offender, falls outside the ambit of Miller, and his

arguments predicated on that decision fail. Because Jefferson’s PCRA petition

is untimely and he has failed to establish an exception to the PCRA’s timeliness

requirements, we lack jurisdiction to consider the merits of his claims.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/4/19




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