J-S29020-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHARLES SHEPPARD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1397 EDA 2018

Appeal from the PCRA Order April 19, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0809521-1978

BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.: FILED JULY 08, 2019

Charles Sheppard appeals pro se from the order, entered in the Court 

of Common Pleas of Philadelphia County, dismissing his petition filed pursuant 

to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon 

careful review, we affirm.

On October 25, 1978, a jury convicted Sheppard of second-degree 

murder,

1

robbery,2 possession of an instrument of crime (PIC),

3 and criminal 

conspiracy.4 On March 6, 1979, the trial court sentenced Sheppard to life 

imprisonment without parole for second-degree murder, and concurrent terms 

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1 18 Pa.C.S. § 2502.

2 18 Pa.C.S. § 3701.

3 18 Pa.C.S. § 907.

4 18 Pa.C.S. § 903.
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of 5 to 10 years’ incarceration for criminal conspiracy and 10 to 20 years’ 

incarceration for robbery, with no further penalty for PIC. Sheppard withdrew 

his direct appeal to this Court regarding his felony convictions in 1984, and

the Pennsylvania Supreme Court affirmed Sheppard’s judgment of sentence 

for second-degree murder. See Commonwealth v. Sheppard, 428 A.2d 

1337 (Pa. 1981). He filed several PCRA petitions between 1983 and 2011, 

which were all dismissed. 

On November 24, 2015, Sheppard filed the instant PCRA petition pro se, 

as well as several amended petitions, alleging his sentence was illegal under 

Miller v. Alabama, 567 U.S. 460 (2012). Appointed PCRA counsel filed a 

Turner/Finley5 “no merit” letter on December 22, 2017, and the PCRA court 

dismissed Sheppard’s petition on April 19, 2018. Sheppard appealed the 

dismissal to this Court on April 30, 2018.6

Preliminarily, we must consider the timeliness of Sheppard’s petition. 

The timeliness of a PCRA petition implicates the jurisdiction of the PCRA court. 

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5 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. 

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 

6 Sheppard has filed an “Application for Relief” moving for sanctions against 

the Commonwealth, and for his arguments to be deemed uncontested and 

accepted as true. See Application for Relief, 5/19/10, at 1. Sheppard has 

established no basis for such relief; as such, we deny his motion. 

We note, however, that the Commonwealth filed its brief over one month late, 

even after this Court granted two extensions of time. We, therefore, decline 

consideration of arguments advanced in the Commonwealth’s untimely brief. 

See Commonwealth v. Brown, 161 A.3d 960, 964 n.2 (Pa. Super. 2017). 
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Commonwealth v. Williams, 35 A.3d 44, 52 (Pa. Super. 2011). No court 

has jurisdiction to hear an untimely PCRA petition. Id. A PCRA petition, 

including a second or subsequent petition, must be filed within one year of the 

date the underlying judgment of sentence becomes final unless one of three 

statutory exceptions applies.7 See 42 Pa.C.S.A § 9545(b)(1)(i-iii); see also 

Commonwealth v. Bretz, 830 A.2d 1273, 1275 (Pa. Super. 2003). A 

petition invoking one of the exceptions must be filed within 60 days of the 

date the claim could have been presented. See 42 Pa.C.S.A § 9545(b)(2).8 

A judgment is deemed final “at the conclusion of direct review, including 

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7 The statutory exceptions to the time bar are as follows:

(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 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.A § 9545(b)(1)(i)-(iii).

8

In 2018, the legislature amended the PCRA to extend the previous 60-day 

limitation for time-bar exceptions to one year. See 2018, Oct. 24, P.L. 894, 

No. 146, § 2, effective in 60 days (Dec. 24, 2018). This extension only applies 

to claims arising one year before the effective date of this section, i.e., 

December 24, 2017, or thereafter. Because Charles filed his petition on 

November 24, 2015, and his claim arose before then, the 60-day time limit 

applies to his claim. Id.
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discretionary review in the Supreme Court of the United States and the 

Supreme Court of Pennsylvania, or at the expiration of time for seeking 

review.” 42 Pa.C.S.A § 9545(b)(3); Commonwealth v. Pollard, 911 A.2d 

1005, 1007 (Pa. Super. 2006). 

Sheppard attempts to circumvent the jurisdictional time bar by asserting 

a newly-recognized constitutional right under section 9545(b)(1)(iii). 

Sheppard, who committed his crimes at age 20, contends the right recognized 

in Miller, that mandatory sentences of life imprisonment without parole for 

juveniles violate the Eighth Amendment applies to him. Appellant’s Brief, at 

40-41; see also Montgomery v. Louisiana, 136 S.Ct. 718, 732 (2016) 

(holding Miller applies retroactively to cases on collateral review).

Miller does not apply to petitioners age 18 and older at the time of their 

offense, therefore Sheppard may not invoke Miller under section 

9545(b)(1)(iii). Commonwealth v. Rodriguez, 174 A.3d 1130, 1147 (Pa. 

Super. 2017) (rejecting application of Miller to 18 year old offenders); see 

Commonwealth v. Avis Lee, 206 A.3d 1 (Pa. Super. 2019) (en banc) 

(holding Miller prohibition on mandatory life without parole sentences does 

not extend to juvenile offenders over 18 at time of offense); see also

Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016) (citation 

omitted). As Sheppard has not pled and proven an exception under section 

9545(b)(1), his petition is untimely, and the PCRA court lacked jurisdiction to 

consider it. 

Order affirmed. Application for Relief denied. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/8/19