J-S61005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    CHARLES J. GILYARD

                             Appellant                  No. 909 EDA 2017


                 Appeal from the PCRA Order February 22, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1135481-1982


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

MEMORANDUM BY LAZARUS, J.:                         FILED OCTOBER 02, 2017

        Charles Gilyard appeals from the order entered in the Philadelphia Court

of Common Pleas dismissing his fifth Post Conviction Relief Act1 (“PCRA”)

petition as untimely. After review, we affirm.

        The relevant facts and procedural history of this case are as follows. On

February 15, 1984, Gilyard was convicted of first-degree murder, robbery,

and criminal conspiracy. Following conviction, Gilyard was sentenced to life

in prison without the possibility of parole. On direct appeal, this Court affirmed

Gilyard’s conviction on August 30, 1985. Commonwealth v. Gilyard, 503



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.

1
    42 Pa.C.S. §§ 9541-9546.
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A.2d 47 (Pa.Super. 1985) (unpublished memorandum). Gilyard did not seek

allowance of appeal to the Pennsylvania Supreme Court.

      Gilyard filed his first petition for post-conviction relief in 1987, his

second in 2003, his third in 2007, and his fourth in 2012. The present PCRA

petition is his fifth, each prior petition having been dismissed. Because the

present PCRA petition is untimely and        Gilyard did not plead and prove a

timeliness exception, it too was properly dismissed.

      As a threshold issue, a PCRA petition must be filed within one year of

final judgment to be timely. 42 Pa.C.S. § 9545(b)(1). 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 review.” 42 Pa.C.S. § 9545(b)(3).

      Here, Gilyard’s judgment became final on September 29, 1985 when the

period for seeking review with the Pennsylvania Supreme Court expired. See

Pa.R.A.P. 1113(a) (petition for allowance of appeal with Pennsylvania

Supreme Court must be filed within thirty days of the Superior Court’s order).

Gilyard had one year after that date, or until September 29, 1986, to file a

timely   PCRA   petition,   so   Gilyard’s   current   petition   is   untimely   by

approximately 30 years.

      A court has no jurisdiction to hear an untimely PCRA petition.

Commonwealth v. Robinson, 837 A.2d 1157 (Pa. 2003). However, three

exceptions exist which will allow a court to hear an otherwise-untimely


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petition.    To invoke such an exception, the petition must allege and the

petitioner must prove 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.

42 Pa.C.S. § 9545(b)(1).

       Here, Gilyard alleges that exception (iii) applies2 because recent United

States      Supreme     Court    decisions     created   and   extended     additional

constitutional rights to minor defendants sentenced to life in prison without

the possibility of parole.

       Two decisions form the foundation of Gilyard’s argument. In 2012, the

Supreme Court held that mandatory life imprisonment without the possibility



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2
  Appellant’s brief refers to both 42 Pa.C.S. § 9545(b)(1)(ii) and (iii) in
lockstep throughout, but Appellant fails to allege a “newly discovered fact”
capable of supporting an exception under 42 Pa.C.S. § 9545(b)(1)(ii). See
Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011) (“subsequent
decisional law does not amount to a new ‘fact’ under section 9545(b)(1)(ii) of
the PCRA”). Thus, this court will consider only the “constitutional right”
exception raised under section 9545(b)(1)(iii).

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of parole is unconstitutional for defendants who were under the age of

eighteen at the time of the offense for which they were convicted. Miller v.

Alabama, 132 S.Ct. 2455 (2012). In 2016, the Court further held that the

right created by Miller must apply retroactively to collateral appeals.

Montgomery v. Louisiana, 136 S.Ct. 718 (2016).              Thus, Miller and

Montgomery extended new Eighth Amendment constitutional protections to

a certain class of minors convicted of serious crimes.

      Relying on a broad range of authority, Gilyard argues that the holdings

of Miller and Montgomery must be read to include all “juvenile offenders,”

as measured by a subjective assessment of developmental traits. Further, he

argues that Miller established a “constitutional floor, rather than a ceiling,”

and that the case “did not establish any maximum age for application of the

Court’s Eighth Amendment proportionality analysis.” Appellant’s Brief at 12.

      This amalgamation of law does not withstand scrutiny. Miller itself was

unambiguous in extending its holding only to “those under the age of 18.”

132 S.Ct. at 2460. This Court, too, has made clear on several occasions that

the Miller standard is objective and age-based rather than subjective and

development-based. In Commonwealth v. Cintora, 39 A.3d 759 (Pa. Super.

2013), this Court declared that Miller did not extend to defendants who were

nineteen and twenty-one years old at the time of the underlying offenses. Id.

at 764. More recently, this Court again declined to extend Miller to a




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defendant who was nineteen years old at the time of the offense.

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

      Gilyard was twenty years old at the time of the offense. Both the United

States Supreme Court and this Court have made clear that the age of majority

governs the application of Miller. Since Gilyard was twenty years old at the

time of the offense, Miller did not extend him a new constitutional right

sufficient to invoke 42 Pa.C.S. § 9545(b)(1)(iii). The PCRA court was correct

in dismissing the petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/2017




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