J-S20039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

TERRENCE KRONK

                            Appellant              No. 1853 WDA 2014


               Appeal from the PCRA Order of November 6, 2013
                In the Court of Common Pleas of Fayette County
                      Criminal Division at No.: 767 of 1976


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                              FILED MAY 22, 2015

       Terrence Kronk appeals from the order of November 6, 2013,1

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-46. We affirm.

       On November 9, 1975, Kronk pleaded guilty to first-degree murder

and received a sentence of mandatory life imprisonment.          Kronk was a

juvenile at the time that he committed the underlying crime. After several

unsuccessful petitions for writ of habeas corpus and PCRA relief, Kronk filed

the underlying PCRA petition on August 6, 2012, alleging that he was




____________________________________________


1
       According to the docket, the order was dated November 5, 2013, and
filed on November 6, 2013. We have amended the caption accordingly.
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entitled to relief pursuant to the United States Supreme Court’s decision in

Miller v. Alabama, 132 S. Ct. 2455 (2012).2

       On September 10, 2013, the PCRA court appointed the Public Defender

to represent Kronk in his PCRA petition. On October 30, 2013, our Supreme

Court decided Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013),

announcing that “nothing . . . persuades us that Miller’s proscription of the

imposition of mandatory life-without-parole sentences upon offenders under

the age of eighteen at the time their crimes were committed must be

extended to those whose judgments of sentence were final as of the time of

Miller’s announcement.” 81 A.3d at 11.

       On November 6, 2013, the PCRA court dismissed Kronk’s petition as

untimely pursuant to Cunningham, supra.           Kronk, via appointed counsel,

filed an untimely notice of appeal on December 31, 2013.            This Court

quashed the appeal on April 15, 2014, and Kronk timely appealed to our

Supreme Court on May 5, 2014. Our Supreme Court denied the petition for

allowance of appeal on September 16, 2014.          Subsequently, Kronk filed a

pro se petition to reinstate his appellate rights nunc pro tunc with the PCRA

court on October 27, 2014.             The PCRA court granted the petition on

November 5, 2014.
____________________________________________


2
      The Supreme Court decided Miller on June 25, 2012. Kronk filed the
instant petition forty-two days later.  See 42 Pa.C.S.A. § 9545(b)(2)
(providing that a PCRA petition must be filed within sixty days of the date
the claim could have been made).



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      Kronk raises three issues for our review:

      1.   Did the [PCRA court] err in denying . . . Terrence Kronk’s
      PCRA petition without a hearing?

      2.   Should the [PCRA] court have reviewed Terrence Kronk’s
      PCRA petition?

      3.    Should the [PCRA] court have conducted a hearing on
      [Terrence Kronk’s] PCRA [petition] based on the Miller decision?

Kronk’s Brief at 10.      Kronk argues these issues together; therefore, we

address them in a single challenge to the PCRA court’s dismissal of his

petition. Id. at 10-12.

      This Court’s standard of review regarding an order granting or denying

a petition under the PCRA is whether the determination of the PCRA court is

supported by the evidence of record and is free of legal error.            See

Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007).                 The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record.   See Commonwealth v. Carr, 768 A.2d

1164, 1166 (Pa. Super. 2001).        “However, this Court applies a de novo

standard of review to the PCRA court’s legal conclusions.” Commonwealth

v. Spotz, 18 A.3d 244, 259 (Pa. 2011).

      “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. Abu-Jamal, 833 A.2d 719, 723-

24 (Pa. 2003) (citations and footnote omitted). 42 Pa.C.S.A. § 9545(b) sets

forth the time limitations for filing of a PCRA petition as follows:


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      (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.A. § 9545(b)(1)(i)-(iii), (2). When a petition is filed outside the

one-year time limit, petitioners must plead and prove the applicability of one

of   the    three   exceptions   to   the   PCRA   timing   requirements.   See

Commonwealth v. Perrin, 947 A.2d 1284, 1285 (Pa. Super. 2008).

      Here, Kronk’s judgment of sentence became final on August 11, 1986,

the first weekday after the ninety-day deadline to petition for review of his

judgment of sentence to the United States Supreme Court by writ of

certiorari. See Commonwealth v. Kronk, No. 93 WDA 2003, at *4 (Pa.

Super. July 29, 2003) (unpublished memorandum); see also 42 Pa.C.S.A.

§ 9545(b)(3). Hence, in order to comply with the filing requirements of the

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PCRA, Kronk’s petition had to be filed by August 11, 1987.   Because Kronk’s

instant petition was filed on August 6, 2012, it is facially untimely and the

PCRA court lacked jurisdiction to review it unless Kronk pleaded and proved

one of the statutory exceptions to the time bar under 42 Pa.C.S.A.

§ 9545(b)(1).

     Kronk alleges the applicability of the newly-recognized constitutional

right exception to the time bar, based upon the Supreme Court’s decision in

Miller, supra.      See Kronk’s Brief at 11; see also 42 Pa.C.S.A.

§ 9545(b)(1)(iii). We disagree.

     In Miller, the Supreme Court of the United States 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

unusual punishments.’”    Miller, 132 S. Ct. at 2460.    Here, Kronk was a

juvenile at the time he committed the underlying crimes.        However, in

Cunningham, supra, our Supreme Court determined that the constitutional

right recognized in Miller does not apply retroactively to defendants

convicted prior to the Supreme Court’s decision in Miller. Cunningham, 81

A.3d 1, 11 (Pa. 2013) (announcing that “nothing . . . persuades us that

Miller’s proscription of the imposition of mandatory life-without-parole

sentences upon offenders under the age of eighteen at the time their crimes

were committed must be extended to those whose judgments of sentence

were final as of the time of Miller’s announcement”). Thus, Kronk, who was

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convicted as a juvenile in 1975, can find no relief from the PCRA time bar in

Miller or Cunningham.

     Accordingly, the PCRA court did not err by dismissing Kronk’s petition

where he failed to plead and prove the applicability of one of the three

exceptions to the PCRA timing requirements.       See Perrin, 947 A.2d at

1285; see also Carr, 768 A.2d at 1166. Kronk’s petition is untimely with

no applicable statutory exception to the time bar, and the PCRA court

properly determined it was without jurisdiction to address its merits.   See

Abu-Jamal, 833 A.2d at 723-24.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/2015




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