J-S55036- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ALEXIS RODRIGUEZ

Appellant No. 327 EDA 2014

Appeal from the PCRA Order December 20

, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP

- 51

- CR -0716259-1989

BEFORE: BOWES, J., SHOGAN, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED SEPTEMBER 24, 2014

Alexis Rodriguez appeals pro se from the order entered on December

20, 2013, in the Court of Common Pleas of Philadelph ia County, dismissing,

as untimely, his fourth petition, filed pursuant to th e Pennsylvania Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541

– 9546. Based upon the

following, we affirm.

The PCRA court aptly summarized the background of thi s case in its

Opinion and we adopt its recitation. See PCRA Court Opinion, 2/27/2014, at

1

– 2. We simply note, for purposes of this discussion, that, in 1990,

Rodriguez was sentenced to life imprisonment, after he was convicted by a

jury of first-degree murder, criminal conspiracy, and po ssession of anJ-S55036- 14

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instrument of crime. 1 At the time of the offenses, Rodriguez was 18 years

old. In this appeal, Rodriguez presents two questions: (1) “Was post

conviction counsel ineffective when seeking and advising a s to parole, and

does the ‘sentencer’ have the power[/]discretion to impo se a sentence of

life-without-parole or life ‘with the possibility of parole’”, and (2) “Is

sentence of life-without-possibility- of

- parole ‘grossly disproportionate’, does

statute requiring mandatory imposition of ‘life witho ut parole’ for an

individual over 17 violate the 8 th Amendment, Article I § 13 of the

[Pennsylvania Constitution] and Article 5 of the Univ ersal Declaration of

Human Rights by divesting a court of its judicial discre tion to graduate and

proportion a sentence.” Rodriguez’s Brief at ii. 2

“In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determinations are supported by the record and a re free of legal

error.” Commonwealth v. Taylor , 67 A.3d 1245, 1248 (Pa. 2014)

(quotations and citation omitted), cert. denied , 134 S. Ct. 2695 (U.S. 2014).

“The PCRA timeliness requirement, however, is mandatory and jurisdictional

in nature.” Id. (citation omitted).

____________________________________________

1 See 18 Pa.C.S. § 2502(a), 903, and 907, respectively.

2 On January 13, 2014, Rodriguez filed his notice of a ppeal, and also filed a

“statement of questions raised on appeal,” raising issues of counsel’s

ineffectiveness and life-without-parole sentences for ind ividuals between 18

and 25 years of age. See Rodri guez’s Statement, 1/13/2014.J-S55036- 14

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All PCRA petitions must be filed within one year of the date the

judgment of sentence becomes final, unless the petition a lleges, and the

petitioner proves, that one of the three enumerated exceptions to the time

for filing requirement is met. See 42 Pa.C.S. § 9545(b)(1). 3 A judgment is

deemed final “at the conclusion of direct review, includi ng discretionary

review in the Supreme Court of the United States and the Supreme Court of

Pennsylvania, or at the expiration of time for seeki ng review.” 42 Pa.C.S. §

9545(b)(3).

Here, Rodriguez’s judgment of sentence became final on October 13,

1998, 4 and therefore the present PCRA petition, filed Apri l 5, 2013, is

patently untimely. However, given that Rodriguez’s p etition references the

United States Supreme Court decision in Miller v. Alabama , 132 S. Ct. 455

____________________________________________

3 The PCRA exceptions that allow for review of an unt imely petition are as

follows: (1) governmental interference; (2) the discove ry of previously

unknown facts; and (3) a newly-recognized constitutiona l right. See 42

Pa.C.S. § 9545(b)(1)(i)-(iii).

4 See Commonwealth v. Rodriguez

, 876 A.2d 469 [2041 EDA 2004] (Pa.

Super. 2005) (unpublished memorandum, at 3).J-S55036- 14

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2012), 5 Rodriguez implicates the PCRA’s statutory exception for a newly

recognized constitutional right. See 42 Pa.C.S. § 9545(b)(1)(iii). 6

The PCRA requires that any petition invoking a PCRA exception “shall

be filed within 60 days of the date the claim could h ave been presented.” 42

Pa.C.S. § 9545(b)(2). Relevant to the present petit ion, “the sixty -day period

begins to run upon the date of the underlying judicia l decision.”

Commonwealth v. Brandon , 51 A.3d 231, 235 (Pa. Super. 2012)

(quotations and citation omitted). Here, the United States Supreme Court

decided Miller

on June 25, 2012. However, R odriguez’s petition was not

filed until April 5, 2013, well beyond sixty days of when the claim could have

been presented. Therefore, we conclude Rodriguez’s PCR A petition is

untimely under Section 9545(b)(2).

Moreover, we agree with the PCRA court that Rodrigue z cannot satisfy

the requirements of the newly recognized constitutional right exception, 42

Pa.C.S. § 9545(b)(1)(iii), since (1) Miller does not apply because Rodriguez

____________________________________________

5 In Miller v. Alabama , 132 S. Ct. 2455 (2012), the United States Supreme

Court held “that mandatory life without parole for those under the age of

18 at the time of their crimes violates the Eighth Amend ment’s prohibition

on ‘cruel and unusual punishments.’” Id. at 2460 (emphasis added).

6 Section 9545(b)(1)(iii) requires a petitioner to plea d and prove “a

constitutional right that was recognized by the Suprem e 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)(iii).J-S55036- 14

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was 18 years old when he committed the underlying murd er, 7 and (2) the

Pennsylvania Supreme Court, in Commonwealth v. Cunningham , 81 A.3d

1, 11 (Pa. 2013), cert. denied , 134 S. Ct. 2724 (U.S. 2014), has held that

Milller does not apply retroactively. See PCRA Court Opinion, 2/27/2014,

at 3 –4. To the PCRA court’s analysis, we also a dd that in Commonwealth

v. Cintora , 69 A.3d 759, 764 (Pa. Super. 2013), appeal denied , 81 A.3d 75

(Pa. 2013), this Court held the contention that Miller applies to persons

over 18 whose brains were immature at the time of the crime does not bring

the matter within the newly recognized constitutional right exception. 8

Accordingly, we conclude there is no basis upon which to di sturb the

decision of the PCRA court, and, therefore, we affirm the order of dismissal.

Order affirmed.

____________________________________________

7 See Footnote 5, supra . The PCRA court notes, “It is undisputed that

[Rodriguez] was 18 years old at the time the murder o ccurred.” PCRA Court

Opinion, 2/27/2014, at 3. See also Rodriguez’s Brief at 10 (“Petitioner was

18 at the time of alleged offense.”).

8 Furthermore, although Rodriguez’s second claim refers to Article 5 of the

Universal Declaration of Human Rights, and Article I, S ection 13 of the

Pennsylvania Constitution, he provides no argument in his brief in this

regard and, therefore, this claim is waived. See Commonwealth v. Quel

, 27 A.3d 1033, 1042 (Pa. Super. 2011) (failure to de velop claim in appellate

brief results in waiver ). In any event, these arguments would not overcome

the PCRA time-bar.J-S55036- 14

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/24/2014Circulated 08/27/2014 11:48 AMCirculated 08/27/2014 11:48 AMCirculated 08/27/2014 11:48 AMCirculated 08/27/2014 11:48 AM