J-S50031- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. BRYON GEORGE TURTON, Appellant No. 313 WDA 2014

Appeal from the PCRA Order entered January 27 , 2014, in the Court of Common Pleas of Allegheny County, Criminal Division, at No(s): CP

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- CR -0012460-1994.
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and ALLEN, JJ

. MEMORANDUM BY ALLEN, J.: FILED AUGUST 12, 2014 Bryon George Turton (“Appellant”) appeals from the ord er denying his petition for post-conviction relief filed pursuant to t he Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541 -46. PCRA counsel has also filed a petition to withdraw. We affirm. The pertinent facts and procedural history are as fol lows: On October 5, 1994, police charged Appellant, then nineteen year s old, with one count of criminal homicide involving the strangulation death of his girlfriend. On January 31, 1996, a jury convicted Appellant of first -degree murder. On March 28, 1996, the trial court sentenced him to life i mprisonment without the possibility of parole. Appellant filed a timely appeal to this Court. In an unpublished memorandum filed on December 15, 1997, w e affirmed Appellant’s judgment of sentence, but remanded for the appointment of newJ-S50031- 14

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counsel to address an ineffective assistance claim raised by Appellant in his appeal. Commonwealth v. Turton , ___ A.2d ___ (Pa. Super. 1997) (unpublished). Upon remand, the trial court appointed new counsel, a nd the trial court held an evidentiary hearing on December 8, 1998 . By order entered February 15, 2001, the trial court denied Appellant relief. Appellant once again filed a timely appeal to this Court. In an un published memorandum filed on April 27, 2004, we affirmed the trial court

. Commonwealth v. Turton , 852 A.2d 1256 (Pa. Super. 2004). On October 20, 2 004, our Suprem e Court denied Appellant’s petition for allocatur

. Commonwealth v. Turton , 862 A.2d 1255 (Pa. 2004). On August 21, 2012, Appellant filed a pro se PCRA petition. The PCRA court appointed counsel, and on October 2, 2013, PCRA co unsel filed an amended petition. The PCRA court issued Pa.R.Crim.P. 907 notice of intent to dismiss Appellant’s petition on November 8, 2013. A ppellant did not file a response. By order entered January 27, 2014, the PCR A court dismissed Appellant’s petition because it was patentl y untimely, and because Appellant failed to establish the applicability of an exception to the time bar. This appeal followed. Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.J-S50031- 14

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In lieu of an advocate’s brief, Appellant’s counsel has f iled an Anders 1 brief and a petition to withdraw. Compliance with Anders applies to counsel who seeks to withdraw from representation on direct a ppeal. Anders imposes stricter requirements than those imposed when coun sel seeks to withdraw during the post-conviction process pursuant to th e dictates of Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) ( en banc ). See Commonwealth v. Fusselman , 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004). Thus, we will assess counsel’s assertion that the i ssues Appellant wishes to raise have no merit under a Turner / Finley analysis. Our Supreme Court has summarized: These cases establish the procedure for withdrawal of court-appointed counsel in collateral attacks on criminal convictions. Independent review of the record by competent counsel is required before withdrawal is permitted. Such independent review requires proof o f: 1) A “no

- merit” letter by PCRA coun sel detailing the nature and extent of his [or her] review; 2) A “no

- merit” letter by PCRA counsel listing each issue the petitioner wished to have reviewed; 3) The PCRA counsel’s “explanation”, in the “no

- merit” letter, of why the petitioner’s issues were meritless; 4) The PCRA court conducting its own independent review of the record; and

____________________________________________ 1 Anders v. California , 386 U.S. 738 (1967).J-S50031- 14

- 4 - 5) The PCRA court agreeing with counsel that the petition was meritless. Commonwealth v. Pitts , 981 A.2d 875, 876 n.1, (Pa. 2009) (citations omitted). Here, Appellant’s cou nsel has complied with the mandates of
Turner and Finley , as summarized in Pitts , supra . Thus, we must determine whether we agree with counsel’s assessment that Appellant’s PCRA petition was untimely filed, and Appellant cann ot establish an exception to t he PCRA’s time bar. This Court’s standard of review regarding an order di smissing a petition under the PCRA is whether the determinatio n of the PCRA court is supported by the evidence of record and is free of leg al error. Commonwealth v. Halley , 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr , 768 A.2d 1164, 1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a hear ing on the petition if the PCRA court determines that the petitioner’s claim is patently frivolous and is without a trace of sup port in either the record or from other evidence. Commonwealth v. Jordan , 772 A.2d 1011 (Pa. Super. 2001). The timeliness of a post-conviction petition is jurisdic tional. Commonwealth v. Albrecht , 994 A.2d 1091, 1093 (Pa. 2010) (citation omitted). Thus, if a PCRA petition is untimely, neit her an appellate court norJ-S50031- 14

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the PCRA court has jurisdiction over the petition. Id . “With out jurisdiction, we simply do not have the legal authority to address t he substantive claims” raised in an untimely petition. Id. Generally, a petition for relief under the PCRA, i ncluding a second or subsequent petition, must be filed within one year of the date the judgment becomes final unless the petition alleges, and the petit ioner proves, an exception to the time for filing the petition. Commonwealth v. GamboaTaylor , 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545 (b)(1). Under these exceptions , the petitioner must plead and prove that: “(1) th ere has been interference by government officials in the presen tation of the claim; or (2) there exists after-discovered facts or evidence; or (3 ) a new constitutional right has been recognized.” Commonwealth v. Fowler , 930 A.2d 586, 591 (Pa. Super. 2007) (citations omitted). A PCRA petition invoking one of these statutory exceptions must “be file d within sixty days of the date the claim first could have been presented.” Gamboa-Taylor , 753 A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to the time restrictions of the PCRA must be pled in the p etition, and may not be raised for the first time on appeal. Commonwealth v. Burton , 936 A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A. P. 302(a) (“Issues not raised before the lower court are waived and cannot b e raised for the first time on appeal.”).J-S50031- 14

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Because Appellant did not file a petition for writ of certiorari with the United States Supreme Court following our Supreme Co urt’s denia l of allocatur, for PCRA purposes, Appellant’s judgment of se ntence became final ninety thereafter, on January 18, 2005. 42 Pa.C.S. A. § 9545(b)(3); U.S.Sup.Ct.R. 13. Appellant filed the instant PCRA petition over seven years later. As a result, his PCRA petition is patently unti mely unless he has satisfied his burden of pleading and proving that one of the e numerated exceptions applies. See Commonwealth v. Beasley , 741 A.2d 1258, 1261 (Pa. 1999). Appellant has failed to prove the applicability of any of the exceptions to the PCRA’s time restrictions. Appellant first contend s that his PCRA falls under the exception of subsection 9545(b)(1)(iii) becau se the United States Supreme Court recognized a new constitutional right i n Miller v. Alabama , 132 S.Ct. 2455 (2012). In Miller , the high court held that mandatory sentences of life without parole “for those under the ag e of 18 at the time of their crimes violates the Eighth Amendment’s prohibitio n against ‘cruel and unusual punishment.’” Miller , 132 S.Ct. at 2460. Appellant asserts that the Miller decision should be applied retroactively to his life s entence. Initially, we note that the Miller holding is inapposite because Appellant was not a juvenile when he killed his girlf riend. Moreover, even had Appellant been a juvenile at the time, our Supr eme Court has determined that the Miller decision should not be applied retroactively. SeeJ-S50031- 14

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generally , Commonwealth v. Cunningham , 81 A.3d 1 (Pa. 2013). Thus, Appellant cannot avoid the PCRA’s time bar pursuant to Section 9545(b)(iii). Alternatively, Appellant attempts to establish an ex ception to the PCRA’s time bar by characterizing the scientific evidence discussed in Miller as “newly discovered facts” pursuant to section 9545(b)(1)(ii ). As noted by present counsel, however, this same evidence was referenced in the United States Supreme Court’s prior decisions of Roper v. Simmons , 543 U.S. 551 (2005) and Graham v. Florida , 560 U.S. 48 (2010). At best, Appellant relies upon a “newly discovered . . . source of previously known facts.” Commonwealth v. Marshall , 947 A.2d 714, 720 (Pa. 2008); see also Commonwealth v. Lark , 746 A.2d 585, 588 n.4 (explaining that matters of public record “cannot be said to have been ‘unknown’ to the PCRA petitioner”). In sum, Appe llant’s PCRA petition is facially untimely, and he ha s failed to meet his burden of proof with regard to any exce ption to the timeliness requirements of the PCRA. We therefore affirm the P CRA court’s denial of Appellant’s petition for post -conviction reli ef, and grant counsel’s petition to withdraw. Petition to withdraw granted. Order affirmed.J-S50031- 14

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/12/2014