J-S73040-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MARCEL J. COOK

Appellant No. 548 WDA 2016

Appeal from the PCRA Order March 10, 2016

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0000391-1986

 CP-02-CR-0000530-1986

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

MEMORANDUM BY JENKINS, J.: FILED OCTOBER 04, 2016

Appellant Marcel J. Cook appeals from the order entered in the 

Allegheny County Court of Common Pleas, which dismissed his pro se 

petition filed for relief pursuant to the Post Conviction Relief Act (“PCRA”).1 

We affirm.

This Court accurately set forth the relevant facts and procedural 

history of this appeal as follows:2

____________________________________________

1 42 Pa.C.S. §§ 9541-9546.

2 This Court’s non-precedential decision at 1213 WDA 2014 affirmed the 

order of the PCRA court that dismissed Appellant’s eleventh (11th) PCRA 

petition.
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On July 22, 1986, Appellant entered a negotiated guilty 

plea to second-degree murder and robbery charges, which 

arose from the December 30, 1985 shooting of Donald 

Stoker by Appellant’s accomplice. The court imposed a 

mandatory term of life imprisonment for the murder 

conviction and no additional penalty on the robbery count. 

Thereafter, Appellant attempted unsuccessfully to 

withdraw his guilty plea on several occasions, and 

repeatedly sought both PCRA and habeas relief through 

serial petitions. [Appellant’s eleventh] petition was filed on 

July 6, 2012.... Appellant subsequently sought and 

received leave to amend his petition to seek habeas corpus 

relief. On February 4, 2014, Appellant filed a pro se

Amended Petition for Writ of Habeas Corpus claiming that 

his sentence for a crime committed when he was 

nineteen[3]years of age violated the Eighth Amendment’s 

prohibition against cruel and unusual punishment.... [The 

PCRA] court denied [Appellant’s eleventh] petition as time 

barred by order dated June 25, 2014.

Commonwealth v. Cook, No. 1213 WDA 2014, unpublished memorandum 

at 1-2 (Pa.Super. filed February 10, 2015). 

On February 10, 2015, this Court affirmed the PCRA court order that 

denied Appellant’s eleventh (11th) PCRA petition. On October 10, 2015, 

Appellant filed another pro se PCRA petition, which the PCRA court dismissed 

on December 22, 2015. On February 2, 2016, Appellant filed the present 

pro se PCRA petition, his thirteenth. On February 25, 2016, the PCRA court 

issued a notice of its intent to dismiss the petition pursuant to Pa.R.Crim.P. 

907. Appellant filed a response to the court’s notice, and the PCRA court 

dismissed the petition on March 10, 2016. On April 1, 2016, Appellant filed 

____________________________________________

3 Appellant was actually twenty-five (25) years old when he committed the 

crime.
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a timely notice of appeal. Both Appellant and the PCRA court complied with 

Pa.R.A.P. 1925.

Appellant raises the following issue for our review:

WHETHER [APPELLANT’S] PETITION FOR POSTCONVICTION RELIEF WAS TIMELY FILED AND THEREFORE 

IMPROPERLY DISMISSED BY THE COURT, WHICH HAD 

JURISDICTION TO ENTERTAIN IT?

Appellant’s Brief at 1.

The timeliness of a PCRA petition implicates the jurisdiction of both 

this Court and the PCRA court. Commonwealth v. Williams, 35 A.3d 44, 

52 (Pa.Super.2011), appeal denied, 50 A.3d 121 (Pa.2012). “Pennsylvania 

law makes clear that no court has jurisdiction to hear an untimely PCRA 

petition.” Id. To “accord finality to the collateral review process[,]” the 

PCRA “confers no authority upon [appellate courts] to fashion ad hoc

equitable exceptions to the PCRA timebar[.]” Commonwealth v. Watts, 

23 A.3d 980, 983 (Pa.2011). With respect to jurisdiction under the PCRA, 

this Court has further explained: 

The most recent amendments to the PCRA...provide a 

PCRA petition, including a second or subsequent petition, 

shall be filed within one year of the date the underlying 

judgment becomes final. A judgment is deemed 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. 

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010) 

(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011); 
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see also 42 Pa.C.S. § 9545(b). This Court may review a PCRA petition filed 

more than one year after the judgment of sentence becomes final only if the 

claim falls within one of the following three statutory exceptions, which the 

petitioner must plead and prove:

(i) the failure to raise the claim 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. § 9545(b)(1). Further, if a petition pleads one of these 

exceptions, the petition will not be considered unless it is “filed within 60 

days of the date the claim could have been presented.” 42 Pa.C.S. § 

9545(b)(2).

Here, Appellant’s judgment of sentence became final on July 5, 1988, 

when his time to appeal to our Supreme Court expired. See 42 Pa.C.S. § 

9545(b)(3). Appellant’s patently untimely PCRA petition, filed February 2, 

2016, fails to plead and prove any of the statutory exceptions to the PCRA 

time bar.
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Appellant attempts to invoke the constitutional right exception to the 

PCRA time bar provided by 42 Pa.C.S. § 9545(b)(1)(iii). He claims that he is 

entitled to post-conviction relief because his life sentence was 

unconstitutional pursuant to the Supreme Court of the United States’ 

holdings in Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 2469, 183 L. 

Ed. 2d 407 (2012) and Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 

718, 724, 193 L. Ed. 2d 599 (2016), as revised (Jan. 27, 2016).

In Miller, the Supreme Court held that a life sentence without the 

possibility of parole for juvenile offenders violates the constitutional right 

provided by the Eighth Amendment of the United States Constitution to be 

free from cruel and unusual punishment. Miller, 132 S.Ct. at 2469. In 

Montgomery, the Supreme Court held that this new substantive rule 

applies retroactively to cases on collateral review. Montgomery, 136 S.Ct. 

at 724. Neither of these cases, nor any other United States Supreme Court 

or Pennsylvania Supreme Court cases, held that a life sentence for an adult 

offender violates one’s Eighth Amendment constitutional right or that such 

substantive right applies retroactively.

Appellant claims that, although he was over eighteen years old when 

he committed his crime, the Supreme Court’s holding in Miller should apply 

to him due to his delayed maturity and history of abuse. Unfortunately for 

Appellant, Miller does not create a newly-recognized constitutional right 

that can serve as the basis of relief for young adults. See Commonwealth 
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v. Cintora, 69 A.3d 759, 764 (Pa.Super.2013), appeal denied, 81 A.3d 75 

(Pa.2013) (rejecting nineteen-year-old and twenty-five-year-old’s claims 

that Miller extends to individuals whose brains were not fully developed at 

time of crimes). Further, this Court previously rejected this very claim when 

it affirmed the PCRA order dismissing Appellant’s eleventh petition filed for 

relief. See Cook, supra.

Because Appellant failed to plead and prove any of the statutory 

exceptions to the PCRA time limitation, the PCRA court correctly determined 

that it lacked jurisdiction to hear this untimely PCRA petition, and we 

likewise are without jurisdiction to hear Appellant’s claim.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/4/2016