J-S07006-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

SHANE DEMOUR SHIVERS

Appellant No. 1132 MDA 2016

Appeal from the PCRA Order June 21, 2016

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): 

CP-36-CR-0000689-1997

CP-36-CR-0002210-1997

CP-36-CR-0002532-1997

CP-36-CR-0002619-1997

CP-36-CR-0002620-1997

BEFORE: BOWES, LAZARUS AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.: FILED MARCH 15, 2017

Shane Demour Shivers appeals from the June 21, 2016 order 

dismissing his third PCRA petition as untimely. We affirm. 

On November 12, 1997, Appellant plead guilty to seven counts 

robbery, two counts aggravated assault, and eight counts of criminal 

conspiracy. The pleas stemmed from Appellant’s involvement an armed 

robbery spree in Lancaster, Pennsylvania, while he was sixteen years old. 

Appellant shot two of the robbery victims, but, fortunately, neither victim 

died. The trial court imposed an aggregate term of thirty-five to seventy 

years imprisonment, which we affirmed on September 21, 1998. 
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Commonwealth v. Shivers, 726 A.2d 1083 (Pa.Super. 1998) (unpublished 

memorandum). Appellant did not seek further review. 

Appellant filed his first PCRA petition on September 26, 2005, counsel 

was appointed, and the petition was dismissed as untimely. We affirmed the 

denial of PCRA relief. Commonwealth v. Shivers, 943 A.2d 322 

(Pa.Super. 2007) (unpublished memorandum). On June 30, 2010, Appellant 

filed a second PCRA petition. Again, relief was denied, and we affirmed. 

Commonwealth v. Shivers, 34 A.2d 232 (Pa.Super. 2011) (unpublished 

memorandum). 

On March 23, 2016,1 Appellant filed the instant pro se PCRA petition, 

his third. Appellant claimed entitlement to relief under Graham v. Florida, 

130 S.Ct. 2011 (2010), Miller v. Alabama, 132 S.Ct. 2455 (2012), and 

Montgomery v. Louisiana, 136 S.Ct. 718 (2016). In Miller, the United 

States Supreme Court held that it was unconstitutional, under the Eighth 

Amendment’s prohibition against cruel and usual punishment, to sentence a 

juvenile homicide offender to a mandatory term of life imprisonment without 

parole. The Court had applied a similar Eighth Amendment analysis in 

____________________________________________

1

Pursuant to the prisoner mailbox rule, a PCRA petition is considered filed 

on the date it was delivered to prison authorities for mailing. See 

Commonwealth v. Castro, 766 A.2d 1283, 1287 (Pa.Super. 2001); 

Commonwealth v. Little, 716 A.2d 1287 (Pa.Super. 1998). Instantly, the 

certified record includes a cash slip for postage dated March 23, 2016, that 

confirms the date Appellant submitted the petition to prison authorities. 

Therefore, we consider the petition to have been filed by that date. 
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Graham in relation to juvenile non-homicide offenders sentenced to life 

imprisonment without parole. Its recent pronouncement in Montgomery 

accorded full retroactive effect to the Miller decision. 

Concluding that Appellant’s reliance upon Graham and Montgomery 

was unavailing, the PCRA court issued notice pursuant to Pa.R.Crim.P. 907 

of its intention to dismiss the petition without hearing, and after receiving 

Appellant’s pro se response, it dismissed the petition as untimely. This 

appeal followed.

Appellant presents two questions for our review:

I. Whether [Appellant’s] aggregate [sentence of] 35 to 70 

[years] imprisonment for juvenile non[-]homicide crimes is 

disproportionate, cruel and unusual punishment in violation of 

his [rights under the] 8th and 14th [Amendments] when 

compared to term-of-year punishments juvenile homicide 

offenders are sentenced to in Pennsylvania now that “imposition 

of a state’s most severe penalties on juvenile offender’s cannot 

proceed as though they were not children.” Miller v. Alabama, 

132 S.Ct 2455, 2466 (2012). 

II. Whether [Appellant’s] guilty plea pursuant to Pa.R.Crim.P. 

590 was tendered in violation of his [rights under the] 8th and 

14th [Amendments] now that [a] juvenile “offenders age is 

relevant to the Eighth Amendment, and criminal procedure laws 

that fail to take defendants’ youthfulness into account at all 

would be flawed.” Graham v. Florida, 130 S.Ct 2011, 2013 

(2010)?

Appellant’s brief at 4.

We review the “denial of PCRA relief to determine whether the findings 

of the PCRA court are supported by the record and free of legal error.” 
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Commonwealth v. Roane, 142 A.3d 79, 86 (Pa. Super. 2016) (quoting 

Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015)). 

At the outset, we must confront the petition’s timeliness because 

“neither this Court nor the trial court has jurisdiction over [an untimely] 

petition.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014). 

This time requirement is mandatory and the court may not ignore it in order 

to reach the merits of the petition. Commonwealth v. Murray, 753 A.2d 

201, 203 (Pa. 2000).

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

defendant’s judgment becomes final unless an exception to the one-year 

time restriction applies. 42 Pa.C.S. § 9545(b)(1). “A judgment becomes 

final at the conclusion of direct review, including discretionary review in the 

Supreme Court of the United States and the Supreme Court of Pennsylvania, 

or at the expiration of time for seeking the review.” 42 Pa.C.S. § 

9545(b)(3). 

Instantly, Appellant’s judgment of sentence became final during 

October 1998 since he did not seek review in our Supreme Court. Thus, the 

present petition filed during March 2016 is facially untimely and cannot be 

addressed unless one of the following exceptions to the one-year time bar 

apply:

(i) the failure to raise the claim previously was the result of 

interference by government officials with the presentation of the 
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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. § 9545(b)(1)(i-iii). In addition, any exception must be raised 

within sixty days of the date the claim could have been presented. 42 

Pa.C.S. § 9545(b)(2).

Relying upon the Supreme Court’s decision in Montgomery, Appellant 

invokes the newly-recognized constitutional right exception to the PCRA 

time-bar. While Appellant’s argument is not a model of clarity, Appellant 

appears to assert that his present PCRA petition is timely filed since 

Montgomery created a new constitutional right that is applicable to him and 

that he filed the PCRA petition within sixty days of when Montgomery was 

decided. Specifically, he maintains that Montgomery rendered retroactive 

the United States Supreme Court’s decision in Graham as well as Miller. 

This assertion fails for at least two reasons. First, the Montgomery Court 

expressly gave Miller retroactive effect, not Graham. Second, even 

recognizing the High Court’s reference to Graham as “the ‘foundation 

stone”’ for Miller's analysis,” Appellant still is not entitled to relief. 
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Montgomery, supra at 732. In Miller, the Court ruled that it was 

unconstitutional to sentence a juvenile homicide offender to an automatic 

term of life imprisonment without parole. Similarly, the Graham Court held 

that the Eighth Amendment bars life without parole for juvenile nonhomicide 

offenders. As Appellant was neither convicted of homicide nor sentenced to 

life imprisonment without parole, neither case applies to his situation. 

Having found that Appellant’s PCRA petition was untimely filed and 

that no exceptions to the statutory time-bar apply, we affirm the order 

dismissing his petition. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/15/2017