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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

PAUL W. CRISAMORE,

                            Appellant                No. 1337 MDA 2016


               Appeal from the PCRA Order Entered July 18, 2016
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0000700-1990


BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                    FILED FEBRUARY 03, 2017

        Appellant, Paul W. Crisamore, appeals pro se from the July 18, 2016

order denying, as untimely, his petition filed under the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

        We briefly summarize the procedural history of Appellant’s case, as

follows. On July 6, 1990, Appellant pled guilty to homicide and robbery. On

August 3, 1990, the court conducted a degree-of-guilt hearing and

determined that Appellant was guilty of second-degree murder. On October

11, 1990, Appellant was sentenced to life in prison, without the possibility of

parole (LWOP). He did not file a direct appeal and, thus, his judgment of

sentence became final on November 10, 1990. See 42 Pa.C.S. § 9545(b)(3)

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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(stating that judgment of sentence becomes final at the conclusion of direct

review or the expiration of the time for seeking the review); Pa.R.A.P.

903(a) (directing that a notice of appeal to Superior Court must be filed

within 30 days after the entry of the order from which the appeal is taken).

     Over the next 25 years, Appellant filed three PCRA petitions, all of

which were denied.    On March 22, 2016, he filed a fourth, pro se PCRA

petition, which underlies the present appeal. Therein, Appellant claimed that

the United States Supreme Court’s holding in Miller v. Alabama, 132 S.Ct.

2455 (2012), applies to his case and renders his LWOP sentence illegal. On

June 14, 2016, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent

to dismiss Appellant’s petition without a hearing. He filed a pro se response,

but the court issued an order dismissing his petition on July 15, 2016.

Appellant filed a timely, pro se notice of appeal, and also timely complied

with the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal.     Herein, he raises three issues for our

review:

     I. Did [the PCRA] court err when it dismissed Appellant’s petition
     without a hearing on Appellant’s claims of cruel and unusual
     punishment, namely that the Eighth Amendment forbids a
     sentencing scheme that mandates life without [the] possibility of
     parole for juvenile offenders, where Pennsylvania’s mandatory
     sentencing scheme violates the proportionality principle,
     imposing life sentences on juveniles without any individualized
     considerations[?]

     II. Did [the PCRA] court err when it dismissed Appellant’s
     petition without a hearing on Appellant’s claims of equal
     protection violations, namely that the Equal Protection Clause of
     the Fourteenth Amendment requires that the distinction made

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      have some relevance to the purpose for which the classification
      is made, where Article V § 16(q)(ii) of the Pennsylvania
      Constitution defines Appellant as a juvenile[?]

      III. Did the [PCRA] court err when it dismissed Appellant’s
      petition without a hearing [o]n Appellant’s claims of due process
      violations, namely that the due process clause gives Appellant
      the Eighth Amendment protections guaranteed under the United
      States Constitution, where no individualized considerations were
      made and Appellant[,] a juvenile[,] was sentenced to life without
      parole[?]

Appellant’s Brief at 4 (unnecessary capitalization omitted).

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.      Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.    See Commonwealth v. Bennett, 930

A.2d 1264, 1267 (Pa. 2007).         Under the PCRA, any petition for post-

conviction relief, including a second or subsequent one, must be filed within

one year of the date the judgment of sentence becomes final, unless one of

the following exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition
         alleges and the petitioner proves that:

            (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

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           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
           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)(i)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

     Here, as stated supra, Appellant’s judgment of sentence became final

on November 10, 1990. Thus, his present petition, filed on March 22, 2016,

is patently untimely, and for this Court to have jurisdiction to review the

merits thereof, Appellant must prove that he meets one of the exceptions to

the timeliness requirements set forth in section 9545(b).     In this regard,

Appellant argues that he meets the ‘retroactive constitutional right’

exception of section 9545(b)(1)(iii) based on the Supreme Court’s holding in

Miller. In that case, the High Court established a new constitutional right

by 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 on

‘cruel and unusual punishments.’” Miller, 132 S.Ct. at 1260. After Miller,

the United States Supreme Court issued Montgomery v. Louisiana, 136

S.Ct. 718, 735-36 (2016), clarifying that Miller applies retroactively. This

Court also held, in Commonwealth v. Secreti, 134 A.3d 77, 82 (Pa. Super.

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2016), that the date of the Montgomery decision is to be used when

calculating whether a petition is timely filed under the 60-day rule of 42

Pa.C.S. § 9545(b)(2).

        Preliminarily, under the holding of Secreti, Appellant has clearly

satisfied the 60-day rule of section 9545(b)(2), as his March 22, 2016

petition was filed 57 days after Montgomery was issued on January 25,

2016.     However, Appellant - who was 19 years old at the time he

committed his crimes - has failed to prove that the rule created in Miller

applies to his case.1 In Appellant’s PCRA petition, he argued

        that Miller validated a scientific study that found the human
        brain does not fully mature until the age of 25. [Appellant] also
        cites a number of other scientific studies regarding the
        development of adolescent brains.       [He] avers [that] these
        studies provide “undisputable evidence in forensic psychology
        that a person is still considered a juvenile in the eyes of society
        between the ages of 18 and 20.” [Appellant’s Petition] at 4.
        Thus, [Appellant] argues that he was a juvenile at the time of
        the murder, and therefore should be subject to the same
        protections as juveniles and the new right announced in Miller.

PCRA Court Order (PCO), 6/16/16, at 3-4 (providing Appellant with notice of

its intent to dismiss pursuant to Rule 907).2 On appeal, Appellant reiterates



____________________________________________


1
  The record confirms that Appellant was born on March 31, 1970, and he
committed the murder and robbery offenses on February 1, 1990, thus
making him 19 years old at the time those crimes were committed.
2
  In the PCRA court’s Pa.R.A.P. 1925(a) opinion, it relies on the rationale set
forth in its Rule 907 notice to support its denial of Appellant’s petition.



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this argument, and also adds novel claims that the rule announced in Miller

must apply to him under equal protection and due process principles.

      As the PCRA court aptly pointed out in its Rule 907 notice, this Court

has already “made it abundantly clear that Miller only applies to those

under 18 at the time of the offense.”        PCO at 4 (citing, inter alia,

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

Cintora, the co-appellants, who were 19 and 21 years old at the time of

their crimes, argued that Miller applied to them because a human brain

does not fully develop until the age of 25, and because “it would be a

violation of equal protection for the courts to treat them[,] or anyone else

with immature brains, as adults.”   Cintora, 69 A.3d at 764.     This Court

rejected these claims, stressing that the co-appellants’ “contention that a

newly-recognized constitutional right should be extended to others does not

render their petition timely pursuant to section 9545(b)(1)(iii).”      Id.

(emphasis in original).

      We recently reaffirmed Cintora’s holding in Commonwealth v.

Furgess, 149 A.3d 90 (Pa. Super. 2016). There, the appellant - who was

19 years old when he committed his crimes - presented an argument similar

to Appellant’s, maintaining that he “may invoke Miller because he was a

‘technical juvenile’” based on “neuroscientific theories regarding immature

brain development….” Furgess, 149 A.2d at 94. Relying on Cintora, we

reiterated that “petitioners who were older than 18 at the time they

committed murder are not within the ambit of the Miller decision and

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therefore may not rely on that decision to bring themselves within the time-

bar exception in Section 9545(b)(1)(iii).” Id.

      Based on our holdings in Cintora and Furgess, it is apparent that the

rule announced in Miller cannot apply to Appellant, who was 19 years old

when he committed murder. Appellant’s arguments that Miller should apply

to his case cannot satisfy the timeliness exception of section 9545(b)(1)(iii).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/3/2017




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