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

COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. RAYMOND J. LAMBERT Appellant No. 1458 WDA 2016

Appeal from the PCRA Order entered August 29 , 2016 In the Court of Common Pleas of Elk County Criminal Division at No: CP

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BEFORE: STABILE, SOLANO, and FITZGERALD * , JJ. MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 18, 2017 Appellant, Raymond J. Lambert, appeals from the August 29, 2016 order entered in the Court of Common Pleas of 59th Judicial District, Elk County Branch, denying his petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA) , 42 Pa.C.S.A. §§ 9541

- 9546. On appeal, Appellant argues the PCRA court erred in dismissing the instant PCRA petition as untimely. We disagree. Accordingly, we affirm the order. The underlying facts of this matter are not in dispute. 1 Briefly, followin g a jury trial, Appellant was convicted, inter alia , of murder in the

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* Former Justice specially assigned to the Superior Court.

1 Releva nt to this matter, it is also undisputed that Appellant was 18 years old at the time he committed the underlying crimes. See Appellant’s Brief at 8.J

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first degree. On May 7, 2010, the trial court sentenced Appellant to life without parole for the murder conviction. Appellant did not file a direct appeal. Appellant filed the instan t PCRA petition on March 28, 2016, approximately six years after his judgment became final. 2 After appointing counsel, the PCRA court dismissed the petition as untimely. On appeal, Appellant argues he is entitled to PCRA relief under Montgomery v. Louisiana , 136 S.Ct. 718 (2016), and Miller v. Alabama , 132 S.Ct. 2455 (2012). We disagree. “[A]n appellate court reviews the PCRA court’s findings of fact to determine whether they are supported by the record, and reviews its conclusions of law to dete rmine whether they are free from legal error.” Commonwealth v. Spotz , 84 A.3d 294, 311 (Pa. 2014). All PCRA petitions, “including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final” unless an exception to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). “The PCRA’s time restrictions are jurisdictional in nature. Thus, [i]f a PCRA petition is untimely, neither this Court nor the [PCRA] court has jurisdiction over the

____________________________________________ 2 As noted, the trial court sentenced Appellant on May 7, 2010. Appellant did not file a direct appeal. Accordingly, Appellant’s judgment, for purposes of the PCRA, became final on June 7, 2010, upon expiration of the 30

- day period he had to file an appeal with this Court and he had until June 7, 2011 to file a timely petition.J

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petition. Without jurisdiction, we s imply do not have the legal authority to address the substantive claims.” Commonwealth v. Chester , 895 A.2d 520, 522 (Pa. 2006) (first alteration in original) (internal citations and quotation marks omitted). As timeliness is separate and distinct from t he
merits of A ppellant’s underlying claims , we first determine whether this
PCRA petition is timely filed

. See Commonwealth v. Stokes , 959 A.2d 306, 310 (Pa. 2008) (consideration of Brady claim separate from consideration of its timeliness). The timeline ss requirements of the PCRA petition must be met, even if the underlying claim is a challenge to the legality of the sentence. See Commonwealth v. Holmes , 933 A.2d 57, 60 (Pa. 2007) (“Although legality of sentence is always subject to review within the PC RA , claims must still first satisfy the PCRA’s time limits or one of the exceptions thereto ”) (citing Commonwealth v. Fahy , 737 A.2d 214, 223 (1999)). Again, we must first determine whether the instant petition is timely. As noted above, Appellant filed t he instant petition in 2016, almost six years after his judgment of sentence became final. As such, the instant petition is facially untimely. To overcome the untimeliness of the petition, Appellant argues that he is entitled to review based on Miller 3 a nd Montgomery

. 4 We disagree.

____________________________________________ 3 Miller held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition (Footnote Continued Next Page)J

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Even if Montgomery would make his petition timely, he is not entitled to relief under Miller . We have repeatedly held that Miller does not apply to defendants who were eighteen or older when they committed murders.
See , e.g. , Commonwealth v. Furgess , 149 A.3d 90, 94 (Pa. Super. 2016). As noted above, Appellant was 18 years old at the time of the underlying crimes. Accordingly, Appellant has no claim under Miller

. Because Appellant has no claim under Miller , Montgomery does not affect the outcome of this matter. Appellant also argues that despite the fact he was an adult at the time of the crimes, Miller should be applied to him because his brain, as is the case in juveniles, was not fully developed. We rejected a sim ilar contention
in Commonwealth v. Cintora , 69 A.3d 759 (Pa. Super. 2013). In Cintora , two appellants, who were nineteen and twenty

- one years of age at the time of their underlying crimes, and were sentenced to life imprisonment, claimed: [T]hat because Miller created a new Eighth Amendment right, that those whose brains were not fully developed at the time of their crimes are free from mandatory life without parole (Footnote Continued)

_______________________ on ‘cruel and unusual’ punishments.” Miller , 132 S.Ct. at 2460 (emphasis added).

4 In Montgomery , the Unites S tates Supreme Court held that Miller was a new substantive rule that, under the United States Constitution, must be retroactively applied in cases on state collateral review. Montgomery , 136 S.Ct. at 736.J

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sentences, and because research indicates that the human mind does not fully develop or ma ture until the age of 25, it would be a violation of equal protection for the courts to treat them or anyone else with an immature brain, as adults. Thus, they conclude that the holding in Miller should be extended to them as they were under the age of 25 at the time of the murder and, as such, had immature brains. Cintora , 69 A.3d at 764 . In rejecting the argument, we concluded that “[a] contention that a newly

- recognized constitutional right should be extended to others does not render their petition timely pursuant to [S]ection 9545(b)(1)(iii).” Id. (emphasis added). Thus, as in Cintora, Appellant’s claim that Miller applied to the case sub judice based on his mental development is without merit. In light of the foregoing, we conclude that Appellant’s PCRA petition is untimely and that Appellant failed to plead and prove any exception to save it from the PCRA’s time bar. Accordingly, we will not review the merits of Appellant’s contentions becaus e we have no jurisdiction to entertain an untimely PCRA petition. See Chester , supra . Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/18/2017