Opinion
J-S59003-18 No. 1005 EDA 2018
11-20-2018
COMMONWEALTH OF PENNSYLVANIA Appellee v. KEVIN ISAAC Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order March 15, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0346491-1982 BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J. JUDGMENT ORDER BY GANTMAN, P.J.:
Appellant, Kevin Isaac, appeals from the order entered in the Philadelphia County Court of Common Pleas, which dismissed his third petition brought pursuant to the Post-Conviction Relief Act ("PCRA"), at 42 Pa.C.S.A. §§ 9541-9546. On January 29, 1982, Appellant and a cohort fatally shot Victim, when Appellant was 23 years old. On November 18, 1982, a jury convicted Appellant of first-degree murder, conspiracy, and aggravated assault. The court sentenced Appellant on December 6, 1983, to life imprisonment without parole. This Court affirmed the judgment of sentence on March 15, 1985, and our Supreme Court denied allowance of appeal on April 10, 1990. See Commonwealth v. Isaac , 494 A.2d 480 (Pa.Super. 1985) (unpublished memorandum), appeal denied, 525 Pa. 596, 575 A.2d 562 (1990).
On April 22, 1993, Appellant filed pro se his first PCRA petition. The PCRA court denied relief on June 3, 1999. On December 20, 1999, this Court affirmed the denial of PCRA relief, and our Supreme Court denied allowance of appeal on July 6, 2000. See Commonwealth v. Isaac , 750 A.2d 369 (Pa.Super. 1999) (unpublished memorandum), appeal denied, 563 Pa. 699, 761 A.2d 548 (2000). Appellant subsequently unsuccessfully litigated a second PCRA petition.
On August 20, 2012, Appellant filed pro se the current PCRA petition, his third, and amended it on March 23, 2016, seeking relief under Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) and Montgomery v. Louisiana , ___ U.S. ___, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). The PCRA court issued notice on February 13, 2018, of intent to dismiss per Pa.R.Crim.P. 907. Appellant responded pro se to the Rule 907 notice on February 26, 2018. The PCRA court dismissed Appellant's PCRA petition as untimely on March 15, 2018. Appellant timely filed a pro se notice of appeal on March 28, 2018. The PCRA court did not order and Appellant did not file a concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b).
The timeliness of a PCRA petition is a jurisdictional requisite. Commonwealth v. Zeigler , 148 A.3d 849 (Pa.Super. 2016). A PCRA petition, including a second or subsequent petition, shall be filed within one year of the date the underlying judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence is deemed final at the conclusion of direct review, including discretionary review in the U.S. Supreme Court and the Pennsylvania Supreme Court, or upon expiration of the time for seeking the review. 42 Pa.C.S.A. § 9545(b)(3). The statutory exceptions to the PCRA time-bar allow for very limited circumstances to excuse the late filing of a petition; a petitioner asserting a timeliness exception must file a petition within 60 days of when the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(1-2).
Instantly, the judgment of sentence became final on July 9, 1990, following expiration of the 90 days for filing a petition for certiorari with the U.S. Supreme Court. See U.S.Sup.Ct.R. 13. Appellant filed the current petition on August 20, 2012, which is patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant attempts to invoke the "new constitutional right" exception per Section 9545(b)(1)(iii), insisting Miller/Montgomery afford him relief. Nevertheless, Appellant was 23 years old at the time of his offenses. Thus, Miller/Montgomery relief does not apply to Appellant. Moreover, this Court has rejected the "technical juvenile" argument that Miller/Montgomery relief should extend to offenders who were under 25 years old when they committed their offenses because the brain is not developed fully until that age. See Commonwealth v. Furgess , 149 A.3d 90 (Pa.Super. 2016) (rejecting "technical juvenile" argument in this context). Therefore, Appellant's current petition remains time-barred, and the PCRA court lacked jurisdiction to review it on the merits. Accordingly, we affirm.
Appellant also cites the U.S. Supreme Court decisions in Roper v. Simmons , 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (dealing with juveniles and death penalties), filed on March 1, 2005, and Graham v. Florida , 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (dealing with juveniles and life sentences for non-homicide offenses), filed on May 17, 2010. Neither case is apposite.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/20/18