Com. v. Russell, S. ( 2017 )

J-S49039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
STEPHEN JAMES RUSSELL
Appellant No. 111 WDA 2017
Appeal from the PCRA Order December 12, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0014840-1994,
CP-02-CR-0016481-1994
BEFORE: DUBOW, SOLANO, and FITZGERALD,* J
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 07, 2017
Appellant, Stephen James Russell, appeals from the order entered in
the Allegheny County Court of Common Pleas dismissing his Post Conviction
Relief Act1 (“PCRA”) petition as untimely. Appellant claims that his petition
was timely filed in light of Montgomery v. Louisiana, 136 S. Ct. 718(2016), and Miller v. Alabama, 132 S. Ct. 2455 (2012). We affirm.
We adopt the facts and procedural history set forth by the PCRA
court’s opinion. See PCRA Ct. Op., 4/3/17, at 1-2. Appellant raises the
following issues for review:
I. Is [Appellant’s] PCRA petition timely filed?
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
J-S49039-17
II. Did [Appellant’s] mandatory sentence of life without
parole, imposed for acts committed at the age of nineteen
(19), violate the eighth amendment of the United States
Constitution, as well as the equal protection clause of the
fourteenth amendment to the U.S. Constitution and article
1, § 26 of the Pennsylvania constitution?
III. Did [Appellant’s] sentence violate the eighth
amendment’s prohibition of mandatory life without parole
for youthful offenders as Miller and Montgomery prohibit
the mandatory imposition of life without parole sentences
upon offenders who possess characteristics of youth that
render them categorically less culpable under the eighth
amendment?
IV. [Did Appellant’s] conviction for second-degree felony
murder render him categorically less culpable and is he
therefore entitled to relief under Miller and Montgomery?
V. Does Pennsylvania law that permits mandatory
sentences of life without parole for crimes committed by
19-year olds lack a rational basis in light of Miller’s
prohibition against such sentences for offenders aged 17
and younger in violation of the equal protection clauses of
the Pennsylvania and U.S. Constitution?
VI. Have the issues raised herein been previously litigated
nor waived?
VII. Have the issues raised herein met the Lawson
standard for a second or subsequent PCRA petition?
Appellant’s Brief at 3.
Appellant argues that Miller and Montgomery provide him relief from
the PCRA time bar under 42 Pa.C.S. § 9545(b)(1)(iii). He specifically avers
that because he was 19 years old at the time the crimes in question
occurred, “he was experiencing the transitory phases of a developing
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adolescent and lacked the ability to assess consequences as outlined and
discussed in [Miller and Montgomery].” Appellant’s Brief at 10.
“Our standard of review of a PCRA court’s dismissal of a PCRA petition
is limited to examining whether the PCRA court’s determination is supported
by the evidence of record and free of legal error.” Commonwealth v.
Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).
As our Supreme Court has explained:
the PCRA timeliness requirements are jurisdictional in
nature and, accordingly, a PCRA court is precluded from
considering untimely PCRA petitions. We have also held
that even where the PCRA court does not address the
applicability of the PCRA timing mandate, th[e] Court will
consider the issue sua sponte, as it is a threshold question
implicating our subject matter jurisdiction and ability to
grant the requested relief.
Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (citations
omitted).
After careful consideration of Appellant’s brief, the record, and the
decision of the PCRA court, we affirm on the basis of the PCRA court’s
opinion. See PCRA Ct. Op. at 2-4 (holding: Appellant’s current PCRA
petition, filed five years after his was judgment of sentence became final in
2003, was patently untimely; Appellant has not proven any of the timeliness
exceptions because Miller and Montgomery do not provide him relief from
the PCRA time bar under 42 Pa.C.S. § 9545(b)(1)(iii) where Appellant was
19 years old at the time of the commission of the crimes at issue; the PCRA
court lacks jurisdiction to address the merits of Appellant’s claims).
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Accordingly, we affirm the PCRA court’s dismissal of Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2017
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Circulated 07/21/2017 03:52 PM