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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
                                            :
RONALD BEERS,                               :
                                            :
                          Appellant         :     No. 808 WDA 2014


                   Appeal from the PCRA Order April 14, 2014
             In the Court of Common Pleas of Westmoreland County
                Criminal Division No(s).: CP-65-CR-0001075-1999

BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED DECEMBER 5, 2014

        Appellant, Ronald Beers, appeals pro se from the order entered in the

Westmoreland County Court of Common Pleas dismissing as untimely his

second Post Conviction Relief Act (“PCRA”)1 petition. Appellant contends the

PCRA court erred in denying his petition because his sentence of life without

the possibility of parole was unconstitutional under Miller v. Alabama, 132

S. Ct. 2455 (2012), and Jackson v. Hobbs, 132 S. Ct. 2455 (2012), and

violated his right to equal protection under the law.      Appellant also avers




*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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that his PCRA petition was timely filed on August 28, 2012, based upon the

United States Supreme Court’s decision in Miller/Jackson. We affirm.

      Appellant was nineteen years old at the time of the underlying

homicide. A prior panel of this Court stated the facts of this case as follows:

           The evidence presented at trial revealed the following.
           Appellant, while in the company of two other men on a
           deserted road, shot the victim in the back of the head,
           killing him. According to the Commonwealth, the murder
           was the result of a plan by [A]ppellant and his two co-
           defendants to rob and kill the victim.       According to
           [A]ppellant, his co-defendants planned the robbery and
           murder without his participation. Further, the two men
           used [A]ppellant, who was intoxicated at the time and who
           suffered from diminished mental capacity, to carry out the
           shooting. Appellant conceded that he pulled the trigger,
           but argued that he did not have the specific intent to kill.
           Thus, he asserted that his voluntary intoxication and
           diminished mental state made him guilty only of third, not
           first, degree murder.

Commonwealth v. Beers, 1750 WDA 2000 (unpublished memorandum at

1) (Pa. Super. Sept. 14, 2001).

      The PCRA court summarized the procedural posture of this case as

follows:

              [Appellant] was convicted by a jury of first and third
           degree murder and related offenses . . . and was
           sentenced on September 28, 2000 to life without the
           possibility of parole. [Appellant] appealed his sentence,
           which was affirmed by the Pennsylvania Superior Court
           (1750 WDA 2000).       The Pennsylvania Supreme Court
           denied [Appellant’s] Petition for Allowance of Appeal on
           January 31, 2002[.2]

2
  Commonwealth v. Beers, 618 WAL 2001 (Pa. 2002). The PCRA court
then stated that Appellant’s judgment of sentence became final on January



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             [Appellant] timely filed his first PCRA Petition . . . on
          April 5, 2002. Counsel was appointed to represent [him]
          and, after a thorough review of the case, counsel filed a
          no-merit letter with the court. [The PCRA court dismissed
          the petition] on June 18, 2003.           [Appellant] was
          represented on appeal by new counsel; however, his
          appeal was unsuccessful and the Order of the Court
          Dismissing his PCRA Petition was affirmed by the
          Pennsylvania Superior Court[.3] His subsequent Petition
          for Allowance of Appeal was denied on January 25, 2005.[4]

             Although the record is unclear, it also appears that
          [Appellant] filed a Federal Habeas Corpus Petition in the
          United States District Court for the Western District of
          Pennsylvania. The final disposition of that action is also
          unclear from the official record in Westmoreland County;
          however, the record does indicate that the official records
          were returned to Westmoreland County from the United
          States District Court on or about January 27, 2007.[5]

             [Appellant] filed a second PCRA Petition . . . on August
          28, 2012. Although the instant PCRA is a second petition
          and is clearly untimely, counsel was appointed to review
          the claims raised by [Appellant]. A No-Merit letter was
          submitted to this court from PCRA counsel . . . and a letter
          written in response to that No-Merit letter was received




31, 2002. However, as we discuss infra, the judgment of sentence became
final on May 1, 2002.
3
  Commonwealth v. Beers, 1366 WDA 2003 (unpublished memorandum)
(Pa. Super. April 27, 2004).
4
    Commonwealth v. Beers, 399 WAL 2004 (Pa. Jan. 25, 2005).
5
  We note that the PCRA docket indicates the record was sent to the United
States District Court on May 22, 2006 and returned to the Westmoreland
County Court on January 23, 2007. Docket, 1/23/14, at 21-22. The docket
is silent as to any activity occurring in the interim period.




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        from [Appellant] on December 2, 2013.[6] A hearing on
        [Appellant’s] PCRA Petition was scheduled and held on
        March 24, 2014.

PCRA Ct. Op., 7/16/14, at 1-2.

     On April 14, 2014, the PCRA petition was denied and counsel’s petition

to withdraw was granted.     Order, 4/14/14.    This timely appeal followed.

Appellant filed a timely court-ordered Pa.R.A.P. 1025(b) statement of errors

complained of on appeal and the PCRA court filed a responsive opinion.

     On appeal, Appellant raises the following issues for our review,

reproduced verbatim:

        1. Did the PCRA Court err in failing to conclude that the
        propositions of law enunciated by the U.S. Supreme Court
        in Miller v. Alabama, ___ U.S. ___ 132 S.Ct. 2455
        (2012); Jackson v. Hobbs, ___ U.S. ___, 132 S.Ct. 2455
        (2012) violates Appellant’s right to equal protection under
        the law, as guaranteed by amendments 8 and 14 to the
        U.S. Constitution. As he was nineteen (19) years old when
        the crimes at No. 1075 c 1999 were committed, thus
        making his mandatory life sentence without the possibility
        of parole unconstitutional pursuant to Miller/Jackson?

        2. Did the PCRA Court err in failing to conclude that
        Appellant’s above stated claim did not fit the new
        constitutional right/rule criteron set forth in 42 Pa.C.S.A. §
        9545 (b) (iii)?

        3. Did the PCRA Court err in failing to conclude that the
        trial court lacked subject-matter-jurisdiction over Appellant
        and     the    requisite  state-of-mind     element   malice
        aforethought?

6
  This correspondence does not appear on the docket. The PCRA court
entered an order on December 27, 2013 which reflected the pro se response
to PCRA counsel’s no-merit letter and ordered a hearing to be scheduled by
the court administrator’s office. Order, 12/27/13.



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         4. Did the PCRA Court err in failing to conclude that
         Appellant’s counsel’s were ineffective at the preliminary
         stage, and all subsequent stages?

         5. Since Appellant is raising a ineffective assistance of
         counsel claim at the preliminary state, and all subsequent
         stages, he is thus raising a “Layered ineffective assistance”
         of counsel claim.

Appellant’s Brief at 2-3.

      Before examining the merits of Appellant’s claims, we consider

whether the PCRA court had jurisdiction to entertain the underlying PCRA

petition. On appellate review of a PCRA ruling, “we determine whether the

PCRA court’s ruling is supported by the record and free of legal error.”

Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008) (citation

omitted).

               We . . . turn to the time limits imposed by the PCRA,
         as they implicate our jurisdiction to address any and all of
         Appellant’s claims. To be timely, a PCRA petition must be
         filed within one year of the date that the petitioner’s
         judgment of sentence became final, unless the petition
         alleges and the petitioner proves one or more of the
         following statutory exceptions:

            (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


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           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).

           We emphasize that it is the petitioner who bears the
        burden to allege and prove that one of the timeliness
        exceptions applies. In addition, a petition invoking any of
        the timeliness exceptions must be filed within 60 days of
        the date the claim first could have been presented. 42
        Pa.C.S. § 9545(b)(2). . . .

Id. at 719-20 (some citations omitted) (emphasis added).

     Our Supreme Court has stated:

        This Court has repeatedly stated that the PCRA timeliness
        requirements are jurisdictional in nature and, accordingly,
        a PCRA court cannot hear untimely PCRA petitions. In
        addition, we have noted that the PCRA confers no
        authority upon this Court to fashion ad hoc equitable
        exceptions to the PCRA time-bar in addition to those
        exceptions expressly delineated in the Act. We have also
        recognized     that    the PCRA’s    time   restriction  is
        constitutionally valid.

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations

and quotation marks omitted).

     In the instant case, Appellant was sentenced on September 28, 2000.

This Court affirmed his judgment of sentence on September 14, 2001. On

January 31, 2002, our Supreme Court denied Appellant’s petition for

allowance of appeal. Appellant’s judgment of sentence thus became final on

May 1, 2002, ninety days after the Pennsylvania Supreme Court denied his

petition for allowance of appeal. See 42 Pa.C.S. § 9545(b)(3) (providing “a

judgment becomes final at the conclusion of direct review, including


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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[ ]”); U.S.Sup.Ct.R. 13 (providing, “[A] petition for a writ of certiorari

seeking review of a judgment of a lower state court that is subject to

discretionary review by the state court of last resort is timely when it is filed

with the Clerk within 90 days after entry of the order denying discretionary

review[ ]”). Appellant thus had one year, until May 1, 2003, to file a PCRA

petition. See 42 Pa.C.S. § 9545(b)(1) (providing that PCRA petition must be

filed within one year of date judgment becomes final).       Appellant filed the

instant petition on August 28, 2012; therefore, it is patently untimely. Thus,

we review whether his petition alleged and proved, as Appellant contends,

the exception at Section 9545(b)(1)(iii). See 42 Pa.C.S. § 9545(b)(1)(iii);

Robinson, 837 A.2d at 1161.

      Miller/Jackson’s holding is clear and stated as follows:              “We

therefore hold 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/Jackson, 132 S.Ct. at 2460

(quotations omitted and emphasis added).

      In Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), cert.

den., 134 S. Ct. 2724 (2014), our Supreme Court held that Miller was not

retroactive and opined:

         Here, applying settled principles of appellate review,
         nothing in [the a]ppellant’s arguments persuades us that


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          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.

Id. at 11.

        Instantly, the PCRA court opined: “[T]he record is abundantly clear

that [Appellant] was age nineteen at the time that he committed his crime;

therefore [Miller/Jackson] are inapplicable to his case.       Also fatal to

[Appellant’s] position is the recent decision by the Pennsylvania Supreme

Court” in Cunningham, supra. PCRA Ct. Op. at 5. We agree no relief is

due.

        In the case sub judice, the Section 9545(b)(1)(iii) exception to the

PCRA’s time restrictions is unavailing.        Thus, the PCRA court lacked

jurisdiction to consider Appellant’s claims.    See Robinson, 837 A.2d at

1161.     The PCRA court’s ruling is free of legal error. See Marshall, 947

A.2d at 719.

        Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/5/2014




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