OPINION BY SHOGAN, J.:
Appellant, Charles Lawson, appeals from the order denying his third petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. Appellant contends, inter alia, that the use of prior juvenile conduct as a predicate offense for imposition of a mandatory life sentence pursuant to 42 Pa.C.S.A. § 9715
The PCRA court summarized the history of this case as follows:
PCRA Court Opinion, 7/1/13, at 1-2 (footnote in original). On April 12, 2003, prior to the PCRA court addressing Appellant's motion for reconsideration, Appellant filed this appeal.
Appellant presents the following issues for our review:
Appellant's Brief at 4.
Our standard of review of an order denying PCRA relief is whether the record supports the PCRA court's determination and whether the PCRA court's decision is free of legal error. Commonwealth v. Phillips, 31 A.3d 317, 319 (Pa.Super.2011) (citing Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.Super.2005)). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super.2001)).
We must first address whether Appellant satisfied the timeliness requirements of the PCRA. The timeliness of a PCRA petition is a jurisdictional threshold and may not be disregarded in order to reach the merits of the claims raised in a PCRA petition that is untimely. Commonwealth v. Murray, 562 Pa. 1, 753 A.2d 201, 203 (2000). Effective January 16, 1996, the PCRA was amended to require a petitioner to file any PCRA petition within one year of the date the judgment of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence "becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and
However, an untimely petition may be received when the petition alleges, and the petitioner proves, that any of the three limited exceptions to the time for filing the petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are met.
Our review of the record reflects that Appellant's judgment of sentence became final on September 30, 1993, thirty days after this Court affirmed his judgment of sentence and the time for filing a petition for allowance of appeal with the Pennsylvania Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113. Accordingly, Appellant's judgment of sentence became final prior to the effective date of the PCRA amendments. Appellant's instant PCRA petition, filed on August 20, 2012, does not qualify for the grace proviso as it was neither Appellant's first PCRA petition, nor was it filed before January 16, 1997. Thus, the instant PCRA petition is patently untimely.
As previously stated, if a petitioner does not file a timely PCRA petition, his petition may nevertheless be received under any of the three limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.A. § 9545(b)(1). If a petitioner asserts one of these exceptions, he must file his petition within sixty days of the date that the exception could be asserted. 42 Pa.C.S.A. § 9545(b)(2).
In his first issue, Appellant correctly asserts that the PCRA court failed to comply with Pa.R.Crim.P. 907 by not providing Appellant with notice that it intended to dismiss Appellant's PCRA petition without holding an evidentiary hearing. However, "our Supreme Court has held that where the PCRA petition is untimely, the failure to provide such notice is not reversible error." Commonwealth v. Davis, 916 A.2d 1206, 1208 (Pa.Super.2007) (citing Commonwealth v. Pursell, 561 Pa. 214, 749 A.2d 911, 917 n. 7 (2000)). Thus, the failure of the PCRA court to provide the Rule 907 notice does not entitle Appellant to relief. Davis, 916 A.2d at 1208. See also Commonwealth v. Kutnyak, 781 A.2d 1259, 1263 (Pa.Super.2001) (recognizing that under Pursell, absence of Pa.
However, Appellant also attempts to invoke the third exception to the PCRA timeliness requirements, i.e., "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.A. § 9544(b)(1)(iii), in his second issue on appeal. Appellant contends that the PCRA court erred in not applying the United States Supreme Court's decision in Miller, supra, to his case. We disagree.
In Miller, the Court held that sentencing a juvenile convicted of a homicide offense to mandatory life imprisonment without the possibility of parole violates the Eighth Amendment's prohibition on cruel and unusual punishment. Accordingly, such sentences cannot be handed down unless a judge or jury first considers mitigating circumstances. Id. at 2475. The holding in Miller was limited to those offenders who were juveniles at the time they committed their crimes.
As an initial matter, we note that the exception set forth in section 9545(b)(1)(iii) applies only where "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
However, Appellant's claim also fails because he was thirty-three years old at the time he committed the instant murder, and Miller only addressed individuals who were juveniles when they committed the crime on which their current conviction is based. Thus, Miller is not directly applicable under the facts of this case.
In an effort to circumvent the fact that he was thirty-three years old at the time he committed the instant murder, Appellant asserts that his age at the time of his most current offense is not the only age that matters for purposes of his mandatory life sentence. Appellant's Brief at 13. He specifically claims that "the application of the mandatory sentence called for in 42
We observe that three Federal Courts of Appeal have completely discredited Appellant's argument that the holding in Miller should be applied to persons who have committed crimes as adults and sentenced to serve mandatory terms of life imprisonment without the possibility of parole based upon statutes that take into account prior juvenile conduct. See United States v. Hoffman, 710 F.3d 1228, 1233 (11th Cir.2013) (per curiam) (stating that "[n]othing in Miller suggests that an adult offender who has committed prior crimes as a juvenile should not receive a mandatory life sentence as an adult, after committing a further crime as an adult"); United States v. Orona, 724 F.3d 1297, 1309-1310 (10th Cir.2013) (holding that the use of the defendant's juvenile adjudication as a predicate offense for recidivist-statute purposes does not violate the Eighth Amendment's ban on cruel and unusual punishment as contemplated by various United States Supreme Court decisions, including Miller); United States v. Hunter, 735 F.3d 172, 176 (4th Cir.2013) (explaining Miller was inapplicable in case where the defendant, an adult sentenced to mandatory term of life imprisonment without parole, was not being punished for a crime he committed as a juvenile because sentence enhancements do not themselves constitute punishment for the prior criminal convictions that trigger them, but was being punished for the recent offense he committed at an age that rendered him responsible for his actions).
On a similar note, in Commonwealth v. Scott, 345 Pa.Super. 86, 497 A.2d 656 (1985), a panel of this Court addressed whether 42 Pa.C.S.A. § 9715 violated the appellant's ex post facto rights. In Scott, we held that the statute imposing a life sentence for a conviction of third-degree murder on anyone who had previously been convicted at any time of murder or manslaughter did not violate the ex post facto clause because the crime committed by Scott after the effective date of the law was the crime that brought Scott within the ambit of the statute, not the prior crime which was used for enhancement purposes. Id. at 658.
Likewise, we are compelled to conclude that the application of section 9715 to Appellant's instant conviction of murder, committed when Appellant was thirty-three years old, did not increase the sentence Appellant received for his prior murder conviction, committed when Appellant was a juvenile. Rather, section 9715 applied only to the instant murder and did not change the punishment for the predicate offense of murder, committed while Appellant was a juvenile. We further conclude that Miller does not apply to an adult offender who has committed third-degree murder as a juvenile and receives a mandatory sentence of life imprisonment without the possibility of parole pursuant to 42 Pa.C.S.A. § 9715. Accordingly, we hold that the imposition on Appellant, who was convicted as an adult of third-degree murder, of a mandatory life sentence without the possibility of parole based, in part, on a prior third-degree murder conviction as a juvenile, does not constitute cruel and
Because the instant PCRA petition was untimely and no exceptions apply, the PCRA court lacked jurisdiction to address the claims presented and grant relief. See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa.Super.2002) (holding that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we lack jurisdiction to reach the merits of the appeal. See Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa.Super.2002) (holding that Superior Court lacks jurisdiction to reach merits of appeal from untimely PCRA petition).
Order affirmed.
42 Pa.C.S.A. § 9715(a).
42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii).