J-S44034-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JAY T. SANDERS,                          :
                                          :
                    Appellant             :       No. 2890 EDA 2017

                 Appeal from the PCRA Order August 12, 2017
            in the Court of Common Pleas of Philadelphia County,
            Criminal Division at No(s): CP-51-CR-0703972-1999

BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                      FILED OCTOBER 05, 2018

      Jay T. Sanders (“Sanders”) appeals from the Order dismissing his

Petitions for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      On April 14, 2003, following a bench trial, Sanders was found guilty of

second-degree murder, robbery, carrying a firearm without a license,

possessing an instrument of crime, and criminal conspiracy. The trial court

sentenced Sanders to an aggregate of life in prison that same day. On June

9, 2005, this Court affirmed in part and vacated in part the judgment of

sentence. See Commonwealth v. Sanders, 881 A.2d 889 (Pa. Super. 2005)
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(unpublished memorandum).1 Our Supreme Court denied allowance of appeal

on December 5, 2005. See Commonwealth v. Sanders, 889 A.2d 1215

(Pa. 2005).

       On June 19, 2006, Sanders filed his first PCRA Petition, which the PCRA

court denied. This Court affirmed the denial, and our Supreme Court denied

allowance of appeal.         Commonwealth v. Sanders, 951 A.2d 1216 (Pa.

Super. 2008) (unpublished memorandum), appeal denied, 960 A.2d 839 (Pa.

2008).

       On July 13, 2012, Sanders filed his second PCRA Petition.     In 2013,

Sanders filed a Petition for Writ of Habeas Corpus regarding the absence of a

sentencing order. Sanders filed another PCRA Petition on March 2, 2016, and

a Memorandum of Law in support of that PCRA Petition on March 24, 2016.

The PCRA court considered the Petitions together2 and subsequently filed a

Pa.R.Crim.P. 907 Notice of Intent to Dismiss.     The PCRA court dismissed




____________________________________________


1This Court concluded that the offenses of second-degree murder and robbery
merged for sentencing purposes, and accordingly directed the trial court to
amend the sentencing order. See Sanders, 881 A.2d 889 (unpublished
memorandum at 9).

2 See Commonwealth v. Montgomery, 181 A.3d 359, 365 (Pa. Super.
2018) (en banc) (stating that “nothing bars a PCRA court from considering a
subsequent petition, even if a prior petition is pending, so long as the prior
petition is not under appellate review.”).



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Sanders’s Petitions on August 12, 2017.          Sanders filed a timely Notice of

Appeal.3

       On appeal, Sanders raises the following questions for our review:

       1. Whether the PCRA court erred in d[ismissing] [Sanders’s] post-
          conviction [P]etition as untimely filed when . . . [Sanders] established
          that his [newly-]discovered fact claims was [sic] within the plain
          language of the timeliness exception set forth at 42 Pa.C.S.A.
          § 9545(b)(1)(ii) [and (b)(2)]?

       2. Whether the PCRA court erred in [dismissing] [Sanders’s] post-
          conviction [P]etition as untimely filed when [Sanders] established
          that both Miller v. Alabama, [567 U.S. 460] (2012); and
          Montgomery v. Louisiana, 136 [S. Ct.] 718 (2016), established a
          new method in obtaining relief, and was within the plain language of
          the timeliness exception set forth at 42 Pa.C.S.A. § 9545(b)(1)(ii)-
          (iii) [and (b)(2)]?

       3. Did [t]he trial court abuse discretion or commit an error of law by
          reclassifying [Sanders,] a juvenile minor, as an adult, in violation of
          [Sanders’s] statutory rights of 1 Pa.C.S.[A.] § 1991, without
          statutory authority, and lacking subject matter jurisdiction where the
          General Assembly ‘never’ gave authorization, therefore violating
          [Sanders’s] Constitutional right to Equal Protection and Due Process,
          as govern under [sic] Pennsylvania Constitution Article I, §§ 9, 26;
          and Fifth and Fourteenth Amendment [sic]?

Brief for Appellant at iv.

       This Court reviews the dismissal of a PCRA Petition on appeal to

determine “whether the ruling of the PCRA court is supported by the record

and free of legal error.” Commonwealth v. Nero, 58 A.3d 802, 805 (Pa.

Super. 2012) (citation omitted).



____________________________________________


3We note that on appeal, Sanders has not raised any claims regarding his
Petition for Writ of Habeas Corpus.

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      Under the PCRA, any PCRA petition “shall be filed within one year of the

date the judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). A judgment

of sentence 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.”    Id. § 9545(b)(3).       The PCRA’s timeliness requirements are

jurisdictional in nature and a court may not address the merits of the issues

raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht,

994 A.2d 1091, 1093 (Pa. 2010).

      Sanders’s judgment of sentence became final on March 6, 2006, when

the time to seek review with the United States Supreme Court expired. See

SUP. CT. R. 13.1 (requiring a petition for a writ of certiorari to be filed within

90 days after entry of judgment). Because Sanders filed the instant PCRA

Petition on July 13, 2012, it is facially untimely.

      Nonetheless, Pennsylvania courts may consider an untimely petition if

the petitioner can explicitly plead and prove one of three exceptions set forth

under 42 Pa.C.S.A. § 9545(b)(1)(i-iii).      Any petition invoking one of these

exceptions “shall be filed within 60 days of the date the claim could have been

presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094 (Pa. 2010).

      Sanders first invokes the newly-discovered facts exception, and cites to

an April 30, 2012 daily news article concerning a decision by the Philadelphia

County District Attorney’s Office not to seek the death penalty against an 18-


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year-old defendant due to his age. Id. at 1-3. Sanders, who was 18 years

old at the time he committed the crimes, argues that he “was not afforded the

same privilege,” and was consequently forced to proceed with a bench trial.

Id. at 1.

      Here, upon review of the record, Sanders has not proven the facts

contained in the article. See Commonwealth v. Castro, 93 A.3d 818, 825

(Pa. 2014) (stating that “the article contains allegations that suggest such

evidence may exist, but allegations in the media, whether true or false, are

no more evidence than allegations in any other out-of-court situation.”); see

also Commonwealth v. Brown, 141 A.3d 491, 501 (Pa. Super. 2016)

(stating that “[a] claim which rests exclusively upon inadmissible hearsay is

not of a type that would implicate the newly-discovered fact exception to the

timeliness requirement, nor would such a claim, even if timely, entitle the

petitioner to relief under the PCRA.” (citation and brackets omitted)).

Moreover, the actions of a prosecutor, in an unrelated case, have no bearing

on Sanders’s conviction and are not a basis for a timeliness exception under

42 Pa.C.S.A. § 9545(b)(1)(ii). Thus, Sanders has failed to invoke the newly-

discovered fact exception. See id.

      Sanders   also   invokes   the   newly-recognized   constitutional   right

exception, arguing that Miller and Montgomery render his sentence illegal.

See Brief of Appellant at 4-8, 11-14. The United States Supreme Court held

in Miller that “mandatory life without parole for those under the age of 18 at


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the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel

and unusual punishments.’” Miller, 567 U.S. at 465. In Montgomery, the

Supreme Court held that the constitutionally right enunciated in Miller applied

retroactively in state collateral proceedings. Montgomery, 136 S. Ct. at 734.

       Miller and Montgomery are inapplicable to this case, as Sanders was

18 when he committed his crimes. See Brief for Appellant at 1; see also

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

petitioners who were not juveniles 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).”).    Therefore, Miller and Montgomery do not apply, and

Sanders cannot meet the newly-recognized right timeliness exception.4

       Because Sanders’s PCRA Petitions are untimely filed and he has failed

to prove a timeliness exception, the PCRA court appropriately dismissed his

Petitions.

       Order affirmed.




____________________________________________


4 Sanders also asserts that the trial court committed abused its discretion and
violated his rights to equal protection and due process by classifying Sanders
as an adult. See Brief for Appellant at 9-11. Sanders’s assertion does not
invoke one of the three statutorily recognized timeliness exceptions. 42
Pa.C.S.A. § 9545(b)(1). To the extent Sanders attempts to extend the holding
of Miller to defendants who are 18 years old at the time of the crime, this
Court has rejected such a claim. See Furgess, 149 A.3d at 94.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/5/18




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