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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
PERCY PEREZ,                             :         No. 1800 MDA 2016
                                         :
                         Appellant       :


             Appeal from the Order Entered, September 29, 2016,
                in the Court of Common Pleas of Berks County
               Criminal Division at No. CP-06-CR-0001073-1997


BEFORE: OLSON, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.


JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.:                FILED JULY 18, 2017

        Percy Perez appeals pro se from the September 29, 2016 order

dismissing his serial petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

        On November 7, 2007, a jury found appellant guilty of second-degree

murder, rape, and related offenses1 in connection with the sexual assault

and death of M.F., a 16-month-old child. See Commonwealth v. Perez,

742 A.2d 208 (Pa.Super. 1999) (unpublished memorandum at 1-4), appeal

denied, 757 A.2d 931 (Pa. 2000). Following a direct appeal, this case was

remanded for re-sentencing on June 9, 1999. On June 26, 2000, the trial

court re-sentenced appellant to an aggregate term of life imprisonment.



1
    18 Pa.C.S.A. §§ 2502, 3121, 3123, 2701, and 4304, respectively.
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Appellant filed his first PCRA petition on January 11, 2001. On March 28,

2016, appellant filed the instant pro se PCRA petition, claiming that his

sentence of life imprisonment is unconstitutional in light of the United States

Supreme Court’s decisions in Miller v. Alabama, 132 S.Ct. 2455 (2012),

and Montgomery v. Louisiana, 136 S.Ct. 718 (2016).2                      Following the

issuance of a Pa.R.Crim.P. 907(1) notice, the PCRA court dismissed

appellant’s petition without a hearing on September 29, 2016.

      The record reveals that appellant’s petition, which was filed over a

decade after his judgment of sentence became final, is patently untimely,

unless appellant can plead and prove that one of the three statutory

exceptions to the one-year jurisdictional time-bar applies. See 42 Pa.C.S.A.

§ 9545(b)(1)     (stating   that   all   PCRA   petitions,   including    second   and

subsequent petitions, must be filed within one year of when a defendant’s

judgment of sentence becomes final); 42 Pa.C.S.A. § 9545(b)(3) (stating,

“[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 the time for seeking

the review.”).


2
   In Miller, the Supreme Court recognized a constitutional right for
juveniles, 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 against ‘cruel and unusual punishments.’” Miller, 132 S.Ct. at
2460. In Montgomery, the Supreme Court recently held that its rule
announced in Miller applies retroactively on collateral review.
Montgomery, 136 S.Ct. at 736.


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          The crux of appellant’s argument on appeal is that he is entitled to be

re-sentenced because his sentence violates the Eighth and Fourteenth

Amendments under Miller and Montgomery.                (Appellant’s brief at 8.)

However, the record reveals that appellant was born on July 1, 1977 and

was 19 years old at the time he committed the crimes in question.              As

such, these cases are inapplicable.       Miller, 132 S.Ct. at 2460; see also

Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa.Super. 2013), appeal

denied, 81 A.3d 75 (Pa. 2013) (rejecting 19 and 22-year-old petitioners’

claims as untimely and holding that Miller could not “serve as the basis for

relief”     to   invoke     the   PCRA   time-bar    exception   set   forth   in

Section 9545(b)(1)(iii)).

          Accordingly, we discern no error on the part of the PCRA court in

dismissing appellant’s PCRA petition.

          Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/18/2017




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