J-S57036-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

GASPER SIMON

                            Appellant                No. 556 EDA 2014


             Appeal from the PCRA Order entered January 9, 2014
             In the Court of Common Pleas of Montgomery County
               Criminal Division at No: CP-46-CR-0000602-2007


BEFORE: DONOHUE, MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                     FILED NOVEMBER 13, 2014

       Appellant Gasper Simon1 appeals from the January 9, 2014, order2 of

the Court of Common Pleas of Montgomery County (PCRA court), which

dismissed as untimely his request for collateral relief under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-46. For the reasons set

forth below, we affirm.3
____________________________________________


1
  Although Appellant initiated this appeal pro se, he is now represented by
counsel. On March 11, 2014, a private attorney entered her appearance on
Appellant’s behalf.
2
  Appellant erroneously believes the order was filed on January 6, 2014,
which merely is the date of the order. As the docket indicates, the PCRA
court filed its order dismissing Appellant’s petition on January 9, 2014.
Accordingly, we have corrected the caption to reflect the right filing date of
the order.
3
  On its face, Appellant’s February 11, 2014, pro se notice of appeal is
untimely, because he filed it more than thirty days after the entry of the
PCRA court’s January 9, 2014 order. Relying on the prisoner mailbox rule,
(Footnote Continued Next Page)
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      The    facts     and    procedural     history   underlying   this   appeal   are

undisputed. As the PCRA court summarized:
      On December 26, 2006, [Appellant] shot and killed Juan Lopez.
      [Appellant], 16 years of age (DOB: August 25, 1990) at the
      time, was charged as an adult.
        ....
            On August 20, 2007, [Appellant] entered a plea of guilty to
      third-degree murder and firearms carried without a license.
      Following a presentence report and psychological evaluation, on
      November 14, 2007, [Appellant] was sentenced to incarceration
      for 15-30 years on the 3rd degree murder conviction, with a five
      (5) year consecutive probation on the firearms conviction. No
      direct appeal was filed.

PCRA Opinion, 4/2/14, at 2-3.             On July 3, 2012, Appellant filed a PCRA

petition, alleging, inter alia, claims for ineffective assistance of trial counsel

and raising violation of a constitutional right under Miller v. Alabama, 132

S. Ct. 2455 (2012).4           Finding it lacked jurisdiction because Appellant’s

petition was untimely and none of the PCRA’s timeliness exceptions applied,

the PCRA court dismissed the petition.




                       _______________________
(Footnote Continued)

however, we decline to quash the appeal. “[A] pro se prisoner’s appeal shall
be deemed filed on the date that the [prisoner] places the document in the
hands of prison officials or in the prison mailbox.” Smith v. Pennsylvania
Bd. Of Probation and Parole, 686 A.2d 278, 279 (Pa. 1996). Instantly,
the record indicates that Appellant’s pro se notice of appeal was dated
February 1, 2014, and postmarked February 3, 2014. Accordingly, this
appeal is timely.
4
  The Court in Miller held that “[m]andatory 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).



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       On appeal, 5 Appellant raises two issues for our review:
       [1.] Did the [PCRA court] err in dismissing Appellant’s first
       [PCRA] [p]etition, filed on July 3, 2012, as untimely when said
       filing specifically relied upon newly issued case law from the
       United States Supreme Court regarding juvenile offenders?
       [2.] Did the [PCRA court] err in dismissing Appellant’s first
       [PCRA] [petition] without determining the merits of the case,
       following the United States Supreme Court’s ruling in [Miller]
       regarding juvenile offenders and where said petition alleged
       ineffective assistance of trial counsel for failing to maintain
       Appellant’s direct appeal rights by failing to file any post[-
       ]sentence appeals despite a specific written request by Appellant
       that an appeal be filed?

Appellant’s Brief at 5.

       As a threshold matter, we must determine whether the court erred in

dismissing as untimely Appellant’s PCRA petition.      The PCRA contains the

following restrictions governing the timeliness of any PCRA petition.
       (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
____________________________________________


5
  “In PCRA proceedings, an appellate court’s scope of review is limited by the
PCRA’s parameters; since most PCRA appeals involve mixed questions of
fact and law, the standard of review is whether the PCRA court’s findings are
supported by the record and free of legal error.” Commonwealth v. Pitts,
981 A.2d 875, 878 (Pa. 2009) (citations omitted).



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J-S57036-14


              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.
        (3) For purposes of this subchapter, 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.A. § 9545(b) (emphasis added).             Section 9545’s timeliness

provisions are jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa.

2014).

        Here, the record reflects the judgment of sentence became final on

December 14, 2007, i.e., at the expiration of the time for filing a direct

appeal in this Court.     See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a).

Because Appellant had one year from December 14, 2007 to file his PCRA

petition, the current filing is untimely on its face given it was filed on July 3,

2012.

        The one-year time limitation, however, can be overcome if a petitioner

alleges and proves one of the exceptions set forth in Section 9545(b)(1)(i)-

(iii) of the PCRA.     Here, Appellant argues that Miller recognized a new

constitutional right that must be applied to him retroactively under Section

9545(b)(1)(iii). As the PCRA court noted, the issue of Miller’s retroactive

application has been settled by our Supreme Court’s recent decision in

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013).                  The Supreme

Court held that Miller did not apply retroactively to cases on collateral



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J-S57036-14



appeal.      Cunningham,         81   A.3d     at   9-10   (noting   that   “nothing   in

[a]ppellant’s arguments persuades us that Miller’s proscription of 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”).

       Instantly, because it is undisputed that Appellant’s sentence became

final before the Miller decision was issued and our Supreme Court in

Cunningham has ruled that Miller does not apply retroactively to cases on

collateral review, we conclude that Appellant does not satisfy the timeliness

exception under Section 9545(b)(1)(iii).6 Thus, given the fact that Appellant

filed his PCRA petition approximately three and one-half years after the

deadline to file the petition had expired and he does not satisfy any of the

timeliness exceptions under Section 9545 of the PCRA, the PCRA court did

not err in dismissing his petition as untimely.

       Order affirmed.




____________________________________________


6
  Appellant’s attempt to fit his case within Miller’s narrow holding is bold. A
cursory understanding of the Court’s holding in Miller would suggest that it
applies only to juveniles subject to mandatory sentences of life
imprisonment.      Appellant was sentenced to fifteen to thirty years’
imprisonment.



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J-S57036-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2014




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