Opinion
J-S75009-16 No. 1368 EDA 2016
01-27-2017
COMMONWEALTH OF PENNSYLVANIA v. DAVID TRAVERS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order April 11, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0004268-1996 BEFORE: BOWES, MOULTON AND MUSMANNO JJ. JUDGMENT ORDER BY BOWES, J.:
David Travers appeals from the order dismissing his fifth PCRA petition as untimely. We affirm.
On January 17, 1997, Appellant pled guilty to murder in the first-degree for shooting John Thurberg in the back of the head. In exchange, the Commonwealth agreed not to seek the death penalty. Appellant, who was eighteen at the time of his crimes, was thereafter sentenced to the mandatory sentence of life imprisonment without the possibility of parole.
Appellant has previously filed several unsuccessful petitions seeking post-conviction relief. The present appeal involves challenges to the dismissal of Appellant's fifth PCRA petition, filed February 12, 2016, as untimely.
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). If a PCRA petition is untimely, "neither this Court nor the trial court has jurisdiction over the petition." Commonwealth v. Miller , 102 A.3d 988, 992 (Pa.Super. 2014). (citation omitted). We review that legal conclusion de novo. Id . Appellant's sentence became final long ago and thus this petition is timely only if one of the statutory exceptions applies.
Herein, Appellant averred that Montgomery v. Louisiana , 136 S.Ct. 716 (2016), qualified as an exception to the one-year time bar codified at 42 Pa.C.S. § 9545(b)(1)(iii) (constitutional right recognized by Supreme Court of the United States or the Supreme Court of Pennsylvania and has been held by that court to apply retroactively). While Appellant filed the petition within sixty days of Montgomery as required by § 9545(b)(2), see Commonwealth v. Secreti , 134 A.3d 77, 80 (Pa.Super. 2016), the exception applies only if Montgomery announced a new constitutional right that is retroactively applicable to Appellant.
Appellant's arguments are summarized as follows: 1. The PCRA court committed legal error when it failed to recognize that Montgomery satisfied § 9545(b)(1)(iii); 2. His sentence violates the Eighth Amendment of the constitutions of the United States and Pennsylvania.
Montgomery gave full retroactive effect to Miller v. Alabama , 132 S.Ct. 2455 (2012), which held unconstitutional the imposition of a mandatory term of life imprisonment without parole to juvenile homicide offenders.
However, Montgomery cannot trigger the exception to the PCRA time-bar herein, since Miller does not control the outcome of this case. We have held that Miller could not satisfy the § 9545(b)(1)(iii) as applied to persons who were eighteen years of age or older when they committed their crimes, even if Miller is retroactive. Commonwealth v. Cintora , 69 A.3d 759 (Pa.Super. 2013) ( Miller would not apply to defendants who were nineteen and twenty-one when they committed murders). Montgomery did not extend Miller in any fashion and thus did not establish any new constitutional right as applied to Appellant. Commonwealth v. Furgess , 149 A.3d 90, 94 (Pa.Super. 2016) ("[N]othing in Montgomery undermines Cintora 's holding that petitioners who were older than 18 at the time they committed murder are not within the ambit of . . . the time-bar exception in Section 9545(b)(1)(iii)."). Therefore, the PCRA court correctly determined it lacked jurisdiction.
Appellant's second claim is that the sentence of life imprisonment without possibility of parole is unconstitutional. This is a substantive claim that seeks to extend the holding of Miller. However, having determined that the PCRA court lacked jurisdiction, it had no authority to address the merits of any claim. Commonwealth v. Jackson , 30 A.3d 516 (Pa.Super. 2011). Thus, the PCRA court properly refused to address this contention.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/27/2017