J-S16043-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JAMEL WAYNE WATLEY,

                            Appellant                No. 1545 WDA 2016


                Appeal from the PCRA Order September 22, 2016
               in the Court of Common Pleas of Allegheny County
               Criminal Division at Nos.: CP-02-CR-0005989-1993
                            CP-02-CR-0007012-1993


BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED APRIL 17, 2017

        Appellant, Jamel Wayne Watley, appeals pro se from the denial of his

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

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

        We take the following facts from our independent review of the

certified record.     On October 7, 1993, a jury convicted Appellant of first

degree murder, aggravated assault, criminal conspiracy, and firearms not to

be carried without a license.1 The charges resulted from his fatal shooting of


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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2501, 2702(a)(1), 903, and 6106, respectively.
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the victim on April 27, 1993, when Appellant was twenty years old.2           On

October 8, 1993, the trial court sentenced Appellant to a term of life

imprisonment without the possibility of parole. On July 21, 1995, a panel of

this Court reversed Appellant’s judgment of sentence and remanded for a

new trial.    (See Commonwealth v. Watley, 668 A.2d 1199 (Pa. Super.

1995) (unpublished memorandum)).                 The Pennsylvania Supreme Court

reversed this Court’s decision on July 29, 1997, reinstating the judgment of

sentence. (See Commonwealth v. Watley, 699 A.2d 1240, at 1246 (Pa.

1997)).

       On February 5, 1998, Appellant filed a timely PCRA petition.

Appointed counsel filed an amended petition, which the PCRA court denied

on August 11, 1998. Appellant did not appeal the denial. On October 23,

2006, and February 26, 2010, Appellant filed his second and third PCRA

petitions. The PCRA court dismissed both petitions as untimely, this Court

affirmed the dismissals, and the Pennsylvania Supreme Court denied

Appellant’s petitions for allowance of appeal.          (See Commonwealth v.

Watley, 945 A.2d 772 (Pa. Super. 2007) (unpublished memorandum),

appeal denied, 946 A.2d 687 (Pa. 2008); Commonwealth v. Watley, 26

A.3d 1179 (Pa. Super. 2011) (unpublished memorandum), appeal denied,

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2
  Appellant was born on February 12, 1973.             (See Criminal Information,
6/09/93, at 1).




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31 A.3d 292 (Pa. 2011)).          On August 15, 2012, Appellant filed his fourth

PCRA petition, which the PCRA court dismissed as untimely. Appellant did

not appeal.

       On March 22, 2016, Appellant filed his current pro se PCRA petition,

his fifth.   Appointed counsel filed a Turner/Finley3 “no-merit” letter and

motion to withdraw, on July 13, 2016. On July 26, 2016, the PCRA court

granted counsel’s motion to withdraw, and provided Appellant with Rule 907

notice of its intent to dismiss the petition without a hearing.             See

Pa.R.Crim.P. 907(1). Appellant responded to the notice on August 15, 2016.

On September 22, 2016, the PCRA court dismissed the PCRA petition as

untimely. Appellant timely appealed.4

       Appellant raises four questions for our review:

       I.    Did the PCRA court err as a matter of law when it
       dismissed Appellant’s PCRA petition?

       II.   Does the Eighth Amendment to the United States
       Constitution prohibit the sentence of mandatory life without
       parole for individuals over age [seventeen,] but below age
       [twenty-five]?

       III. Does the Eighth Amendment to the United States
       Constitution prohibit the sentence of mandatory life without
       parole for adults convicted of murder?
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3
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
4
  On November 9, 2016, Appellant filed a timely statement of errors
complained of on appeal, pursuant to the PCRA court’s order. The court filed
an opinion on December 6, 2016. See Pa.R.A.P. 1925.



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      IV.   Does the Fourteenth Amendment Equal Protection Clause
      prohibit the sentence of mandatory life without parole for
      persons convicted of murder in the Commonwealth of
      Pennsylvania?

(Appellant’s Brief, at 4) (unnecessary capitalization omitted).

           Our standard of review of an order denying PCRA relief is
      whether the record supports the PCRA court’s determination, and
      whether the PCRA court’s determination 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. Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citations

omitted).

      We begin by addressing the timeliness of Appellant’s petition.

             The PCRA provides eligibility for relief in conjunction with
      cognizable claims, . . . and requires petitioners to comply with
      the timeliness restrictions. . . . [A] PCRA petition, including a
      second or subsequent petition, must be filed within one year of
      the date that judgment becomes final. A judgment becomes
      final for purposes of the PCRA 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.

             It is well-settled that the PCRA’s time restrictions are
      jurisdictional in nature.      As such, this statutory time-bar
      implicates the court’s very power to adjudicate a controversy
      and prohibits a court from extending filing periods except as the
      statute permits.     Accordingly, the period for filing a PCRA
      petition is not subject to the doctrine of equitable tolling;
      instead, the time for filing a PCRA petition can be extended only
      by operation of one of the statutorily enumerated exceptions to
      the PCRA time-bar.

            The exceptions to the PCRA time-bar are found in Section
      9545(b)(1)(i)–(iii) (relating to governmental interference, newly
      discovered facts, and newly recognized constitutional rights),
      and it is the petitioner’s burden to allege and prove that one of

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      the timeliness exceptions applies. Whether a petitioner has
      carried his burden is a threshold inquiry that must be resolved
      prior to considering the merits of any claim. . . .

Commonwealth       v.   Robinson,    139   A.3d   178,   185–86   (Pa.     2016)

(quotation marks and citations omitted).

      Here, Appellant’s judgment of sentence became final on October 27,

1997, when his time to file a petition for a writ of certiorari expired. See 42

Pa.C.S.A. § 9545(b)(3); U.S. Sup. Ct. R. 13. Therefore, Appellant had until

October 27, 1998, to file a timely PCRA petition.        See 42 Pa.C.S.A. §

9545(b)(1). Because Appellant filed the instant petition on March 22, 2016,

it is untimely on its face, and the PCRA court lacked jurisdiction to review it

unless he pleaded and proved one of the statutory exceptions to the time-

bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      Section 9545 of the PCRA provides only three limited exceptions that

allow for review of an untimely PCRA petition:

            (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.

Id.

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       Any petition invoking an exception must “be filed within [sixty] days of

the date the claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

“If the [PCRA] petition is determined to be untimely, and no exception has

been pled and proven, the petition must be dismissed without a hearing

because Pennsylvania courts are without jurisdiction to consider the merits

of the petition.”      Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.

Super. 2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted).

       Here, Appellant claims the benefit of the newly recognized and

retroactively applied constitutional right exception at 42 Pa.C.S.A. §

9545(b)(1)(iii), by arguing that his life sentence is unconstitutional pursuant

to Miller v. Alabama, 132 S. Ct. 2455 (2012), and Montgomery v.

Louisianna, 136 S. Ct. 718 (2016).5              (See Appellant’s Brief, at 8-13).

Appellant acknowledges that he “was twenty (20) years old at the time of

the [] crime[,]” but maintains that he was “not an adult because the

biological process of a child is not complete until one reaches their mid-

twenties[,]” and thus, he should “be treated similarly” to his “juvenile

counterparts[.]” (Id. at 11). We disagree.

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5
  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
2469. In Montgomery, the United States Supreme Court determined that
its Miller holding constituted a new substantive rule of constitutional law
that must be applied retroactively to cases on collateral review. See
Montgomery, supra at 736.



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     This Court has expressly “[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 decision to bring

themselves within the time-bar exception in Section 9545(b)(1)(iii).”

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

citation omitted).     Therefore, Appellant’s argument predicated on an

extension of Miller and Montgomery fails. See id.

     In sum, we conclude Appellant has not met his burden of proving that

his untimely PCRA petition fits within one of the three exceptions to the

PCRA’s time-bar. See Robinson, supra at 185–86. Accordingly, we affirm

the order of the PCRA court.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2017




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