J-S07006-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                    v.

SHANE DEMOUR SHIVERS

                         Appellant                    No. 1132 MDA 2016


                  Appeal from the PCRA Order June 21, 2016
              In the Court of Common Pleas of Lancaster County
                          Criminal Division at No(s):
                           CP-36-CR-0000689-1997
                           CP-36-CR-0002210-1997
                           CP-36-CR-0002532-1997
                           CP-36-CR-0002619-1997
                           CP-36-CR-0002620-1997


BEFORE: BOWES, LAZARUS AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                              FILED MARCH 15, 2017

        Shane Demour Shivers appeals from the June 21, 2016 order

dismissing his third PCRA petition as untimely. We affirm.

        On November 12, 1997, Appellant plead guilty to seven counts

robbery, two counts aggravated assault, and eight counts of criminal

conspiracy.   The pleas stemmed from Appellant’s involvement an armed

robbery spree in Lancaster, Pennsylvania, while he was sixteen years old.

Appellant shot two of the robbery victims, but, fortunately, neither victim

died.   The trial court imposed an aggregate term of thirty-five to seventy

years    imprisonment,   which   we   affirmed   on    September   21,   1998.
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Commonwealth v. Shivers, 726 A.2d 1083 (Pa.Super. 1998) (unpublished

memorandum). Appellant did not seek further review.

       Appellant filed his first PCRA petition on September 26, 2005, counsel

was appointed, and the petition was dismissed as untimely. We affirmed the

denial of PCRA relief.           Commonwealth v. Shivers, 943 A.2d 322

(Pa.Super. 2007) (unpublished memorandum). On June 30, 2010, Appellant

filed a second PCRA petition.         Again, relief was denied, and we affirmed.

Commonwealth v. Shivers, 34 A.2d 232 (Pa.Super. 2011) (unpublished

memorandum).

       On March 23, 2016,1 Appellant filed the instant pro se PCRA petition,

his third. Appellant claimed entitlement to relief under Graham v. Florida,

130 S.Ct. 2011 (2010), Miller v. Alabama, 132 S.Ct. 2455 (2012), and

Montgomery v. Louisiana, 136 S.Ct. 718 (2016).             In Miller, the United

States Supreme Court held that it was unconstitutional, under the Eighth

Amendment’s prohibition against cruel and usual punishment, to sentence a

juvenile homicide offender to a mandatory term of life imprisonment without

parole.    The Court had applied a similar Eighth Amendment analysis in
____________________________________________


1
  Pursuant to the prisoner mailbox rule, a PCRA petition is considered filed
on the date it was delivered to prison authorities for mailing.         See
Commonwealth v. Castro, 766 A.2d 1283, 1287 (Pa.Super. 2001);
Commonwealth v. Little, 716 A.2d 1287 (Pa.Super. 1998). Instantly, the
certified record includes a cash slip for postage dated March 23, 2016, that
confirms the date Appellant submitted the petition to prison authorities.
Therefore, we consider the petition to have been filed by that date.



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Graham in relation to juvenile non-homicide offenders sentenced to life

imprisonment without parole.      Its recent pronouncement in Montgomery

accorded full retroactive effect to the Miller decision.

      Concluding that Appellant’s reliance upon Graham and Montgomery

was unavailing, the PCRA court issued notice pursuant to Pa.R.Crim.P. 907

of its intention to dismiss the petition without hearing, and after receiving

Appellant’s pro se response, it dismissed the petition as untimely.      This

appeal followed.

      Appellant presents two questions for our review:

      I.    Whether [Appellant’s] aggregate [sentence of] 35 to 70
      [years] imprisonment for juvenile non[-]homicide crimes is
      disproportionate, cruel and unusual punishment in violation of
      his [rights under the] 8th and 14th [Amendments] when
      compared to term-of-year punishments juvenile homicide
      offenders are sentenced to in Pennsylvania now that “imposition
      of a state’s most severe penalties on juvenile offender’s cannot
      proceed as though they were not children.” Miller v. Alabama,
      132 S.Ct 2455, 2466 (2012).

      II.   Whether [Appellant’s] guilty plea pursuant to Pa.R.Crim.P.
      590 was tendered in violation of his [rights under the] 8th and
      14th [Amendments] now that [a] juvenile “offenders age is
      relevant to the Eighth Amendment, and criminal procedure laws
      that fail to take defendants’ youthfulness into account at all
      would be flawed.” Graham v. Florida, 130 S.Ct 2011, 2013
      (2010)?

Appellant’s brief at 4.

      We review the “denial of PCRA relief to determine whether the findings

of the PCRA court are supported by the record and free of legal error.”




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Commonwealth v. Roane, 142 A.3d 79, 86 (Pa. Super. 2016) (quoting

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015)).

      At the outset, we must confront the petition’s timeliness because

“neither this Court nor the trial court has jurisdiction over [an untimely]

petition.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014).

This time requirement is mandatory and the court may not ignore it in order

to reach the merits of the petition. Commonwealth v. Murray, 753 A.2d

201, 203 (Pa. 2000).

      All PCRA petitions must be filed within one year of the date a

defendant’s judgment becomes final unless an exception to the one-year

time restriction applies. 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 the review.”           42 Pa.C.S. §

9545(b)(3).

      Instantly, Appellant’s judgment of sentence became final during

October 1998 since he did not seek review in our Supreme Court. Thus, the

present petition filed during March 2016 is facially untimely and cannot be

addressed unless one of the following exceptions to the one-year time bar

apply:

      (i) the failure to raise the claim previously was the result of
      interference by government officials with the presentation of the



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     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)(i-iii).   In addition, any exception must be raised

within sixty days of the date the claim could have been presented.      42

Pa.C.S. § 9545(b)(2).

     Relying upon the Supreme Court’s decision in Montgomery, Appellant

invokes the newly-recognized constitutional right exception to the PCRA

time-bar.   While Appellant’s argument is not a model of clarity, Appellant

appears to assert that his present PCRA petition is timely filed since

Montgomery created a new constitutional right that is applicable to him and

that he filed the PCRA petition within sixty days of when Montgomery was

decided. Specifically, he maintains that Montgomery rendered retroactive

the United States Supreme Court’s decision in Graham as well as Miller.

This assertion fails for at least two reasons. First, the Montgomery Court

expressly gave Miller retroactive effect, not Graham.        Second, even

recognizing the High Court’s reference to Graham as “the ‘foundation

stone”’ for Miller's analysis,” Appellant still is not entitled to relief.



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Montgomery, supra at 732.          In Miller, the Court ruled that it was

unconstitutional to sentence a juvenile homicide offender to an automatic

term of life imprisonment without parole. Similarly, the Graham Court held

that the Eighth Amendment bars life without parole for juvenile nonhomicide

offenders. As Appellant was neither convicted of homicide nor sentenced to

life imprisonment without parole, neither case applies to his situation.

      Having found that Appellant’s PCRA petition was untimely filed and

that no exceptions to the statutory time-bar apply, we affirm the order

dismissing his petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2017




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