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____________________________________ * Retired Senior Judge assigned to the Superior Court. NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA

v.

WILLIE MAURICE HARRIS,

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 608 WDA 2017 Appeal from the PCRA Order March 2 1 , 2017 In the Court of C ommon Pleas of Allegheny County Criminal Division at No.: CP

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- CR

- 0003121

- 1997 BEFORE: OLSON, J., DUBOW, J., and STRASSBURGER, J. * MEMORANDUM BY DUBOW, J.: FILED MAY 9, 2018 Appellant, Willie Maurice Harris , appeals pro se from the March 2 1 , 2017 Order entered in the Allegheny County Court of Common Pleas dismissing as untimely his third Petition filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541

- 9546. After careful review, we affirm on the basis that Appellant’s PCRA Petition is untimely and this Court, thus, lacks jurisdiction to review the Petition. This Court previously set forth the underlying facts, so we need n ot repeat them here. See Commonwealth v. Harris , No. 525 W DA 201 5 , unpublished memorandum at 1

- 4 (Pa. Super. filed Nov. 16 , 201 5 ). In
summary, o n August 9, 1996 , when Appellant was 18 years old, 1 he shot
and killed Roderick McMahon after an argument in Pittsburgh . On August 7,

_________________ __________ ______ ____ _______
1 Appellant’s date of birth is October 3, 1977.J

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1997 , a jury convicted Appellant of First

- Degree Murder. On September 4,
1997 , the trial court imposed the mandatory sentence of life imprisonment without parole

. On August 6, 2004, t his Court affirmed Appellant’s Judgment of
Se ntence, and our Supreme Court dismissed Appellant’s appeal as being improvidently granted on February 20, 2007

. Commonwealth v. Harris , 860 A.2d 1129 (Pa. Super. 200 4 ) (unpublished memorandum), appeal dismissed as improvidently granted , 915 A.2d 626 (Pa. 2007) ( per curiam )

. Appellant’s Judgment of Sentence became final on May 21, 2007, when his time for seeking review with the United States Supreme Court expired. See
Commonwealth v. Harris , No. 525 WDA 2015, unpublished memorandum
at 7 (Pa. Super. filed Nov. 16, 2015 ); U.S.Sup.Ct.R. 13 (allowing 90 days to
file Petition for Writ of Certiorari ). Over the course of the next decade, Appellant filed two other PCRA Petitions, and the PCRA court dismissed each one because the Petitions
either lacked merit or w e re patently untimely under the strict te rms of the
PCRA.
On March 23 , 201 6 , during the pendency of the appeal of Appellant’s
S econd PCRA Petition, 2 Appellant filed the instant pro se Petition with the

_________________ __________ ______ ____ _______
2 Our Supreme Court denied allowance of appeal with respect to Appellant’s S econd PCRA Petition on May 3, 2016.J

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PCRA court (“ T hird PCRA Petition”)

. 3 Appellant subsequently filed a lengthy
memorandum of law in support of his T hird PCRA Petition. 4 Appellant sought
to invoke Miller v. Alabama , 567 U.S. 460 (2012), and Montgomery v.
Louisiana , 136 S.Ct. 718, 193 L.Ed.2d 599 (2016)

. 5
On March 21 , 20 17 , in response to another filing by Appellant, the
PCRA court dismissed Appellant’s T hird PCRA Petition. 6 Appellant timely filed

_________________ __________ ______ ____ _______ 3 Appellant recognized that his S econd PCRA Petition was pending before our Supreme Court. See PCRA Petition, filed 3/23/16, at 1.

4 Although Appellant titled his T hird PCRA Petition a “Request for Stay of PCRA Petition, ” his reason for the filing and the supporting memorandum demonstrate that this filing was, in fact, a PCRA Petition

. Normally, when a PCRA appeal is pending before a court, a subsequent PCRA petition cannot be filed until the resolution of the pending appeal “by the highest state court in which review is sought.” Commonwealth v. Lark , 746 A.2d 585 , 588 ( Pa. 2000)

. Although the P CRA court should have dismissed the filing as premature without prejudice , see Commonwealth v. Leslie , 757 A.2d 984, 985 (Pa. Super. 2000) , due to administrative errors discussed infra , it did not. Because of the administrative breakdown of the court, we decline to dismiss this appeal on that basis and will address the jurisdictional issues

.
5 In Miller , the U.S. Supreme Court held that it is unconstitutional for state courts to impose an automatic life sentence without possibility of parole upon a homicide defendant for a murder committed while the defendant was a juvenile. The United States Supreme Co urt held in Montgomery that its decision in Miller applies retroactively.

6 On March 21, 2017, t he PCRA court filed an “Order Denying Petitioner’s Request to Stay PCRA Proceedings” because “there is no active PCRA petition filed .” However, on July 20, 20 17 , the court filed its Pa.R.A.P. 1925(a) Opinion, in which it acknowledged and addressed Appellant’s T hird PCRA Petition as an untimely serial PCRA Petition. On July 25, 2017, the Allegheny County C lerk of C ourts amended the docket to correct administrat ive errors and docket omissions , thus officially docketing (Footnote Continued Next Page)J

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a pro se Notice of Appeal. Both Appellant and the trial court complied with
Pa.R.A.P. 1925. Appellant presents nine issues for o ur review: [1.] Whether the court/clerk erred in failing to docket and file [Appellant’s] PCRA petition submitted to the court March 22, 2016. [2.] Whether [Appellant] is entitled to have his PCRA petition submitted March 22, 2016, filed and docketed with the court on the date in which it was originally submitted to the court and disposed of through the proper channels of the PCRA process. [3.] Whether the trial court erred in filing an order March 20, 2017 alleging [Appellant] did not submit a petition o n March 22, 2016. [4.] Whether the trial court committed harm to [Appellant] by failing to file and docket petition submitted March 22, 2016. [5.] Whether the court ’ s imposition of illegal mandatory life without parole sentence for a homicide offense com mitted while [Appellant] was a juvenile over the age of 17, but below the age of 21, violates 1§ 13 [ sic ] of the Pennsylvania Constitution as well as the Eighth Amendment ’ s Prohibition on “ cruel and unusual punishment. [ sic ] [6.] Whether [Appellant’s] mandatory life sentence violates the severability clause under Pennsylvania ’ s Constitutional construction of st atutes and the Eighth Amendment’ s prohibition (Footnote Continued)

_____________ __ ________ Appellant’s third Petition four months after Appellant filed it and noting that Appellant filed it on March 23, 2016

. In light of the meritless basis for Appellant’s Third PCRA Petition and a ppeal , the PCRA court’s subsequent characterization and ultimate review of Appellant’s PCRA Petition, the court’s administrative and docketing errors, and the interest s of judicial economy , we consider the PCRA court’s March 21, 2017 O rder as the formal dismiss al of Appellant’s T hird PCRA Petition filed March 23, 2016

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on cruel and unusual punishment; Whether [Appellant’s] sentence should be vacated, and Whether [App ellant] should be ind ividually resentenced on lesser

- included offenses. [7.] Whether the court has Jurisdiction to address [Appellant’s] illegal sentence pursuant to 42 Pa.C.S. § 9542. [8.] Whether the court should vacate [Appellant’s] illegal sentence pursuant to 42 Pa.C.S. § 9542. [9.] Whether the trial court erred in sentencing [Appellant] to a mandatory minimum sentence by severance of the statute and applying the mandatory recidivist sentencing provisions under statute § 9715, which doesn ’ t apply t o [Appellant] resulting in an illegal sentence. Appellant’s Brief at vii

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We review the denial of a PCRA Petition to determine whether the record supports the PCRA court’s findings and whether its Order is otherwise free of legal error. Commonweal th v. Fears , 86 A.3d 795, 803 (Pa. 2014). There is no right to a PCRA hearing; a hearing is unnecessary where the PCRA court can determine from the record that there are no genuine
issues of material fact. Commonwealth v. Jones , 942 A.2d 903, 906 (Pa.
Su per. 2008). Before addressing the merits of Appellant’s claims, we must first determine whether we have jurisdiction to entertain the Third PCRA Petition.

_________________ __________ ______ ____ _______
7 Appellant’s first four issues pertain to docketing errors and omissions that the C lerk of C ourts corrected on July 25, 2017. The docket now reflects that Appellant filed the Third PCRA Petition on March 23, 2016. Since the administrative issues themselves do not provide Appellant with relief under the PCRA, and court administration corrected the errors, we need not address Appellant’s first four issues raised on appeal.J

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See Commonwealth v. Hackett , 956 A.2d 978, 983 (Pa. 2008) (explaining
that the timeliness of a PCRA Petition is a jurisdictional requisite). Under the PCRA, any p etition “including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final[.]” 42 Pa.C.S. § 9545(b)(1). A Judgment of Sentence 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). The PCRA’s timeliness requirem ents are jurisdictional in nature,
and a PCRA court may not address the merits of the issues raised if the petitioner did not timely file the PCRA petition. Commonwealth v.
Albrecht , 994 A.2d 1091, 1093 (Pa. 2010).
As noted above , Appellant’s Judgment of Senten ce became final on May 21, 2007. In order to be timely, Appellant needed to submit his PCRA Petition by May 21, 2008

. Id

. Appellant filed this PCRA Petition on March 23, 2016 , more than eight years after his Judgment of Sentence became
final. The PCRA court properly concluded that Appellant’s Petition is facially untimely. PCRA Court Opinion, dated 7 /20/17, at 2

. Pennsylvania courts may consider an untimely PCRA petition, however, if the appellant pleads and proves one of the three exceptions se t forth in 42 Pa.C.S. § 9545(b). Here, Appellant attempts to invoke the timeliness exception under Section 9545(b)(1)( i ii) , which provides that a petitionerJ

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may seek relief when there is “a constitutional right that was recognized by the Supreme Court of t he 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). Citing Miller and Montgomery , Appellant essentially argues that he is
ent itled to relief because, as an eighteen

- year - old offender, he is “similarly situated” as a juvenile homicide defendant. Appellant’s Brief at 17. This
Court has twice rejected nearly identical arguments for purposes of invoking the timeliness except ion at Section 9545(b)(1)(iii). See Commonwealth v.
Cintora , 69 A.3d 759 , 764 (Pa. Super. 2013) ( holding (1) petitioners who

were eighteen or older at the time they committed murder are not within the
ambit of the Miller decision and therefore may not rely on that decision to bring themselves within the time

- bar excep tion in Section 9545(b)(1)(iii) ; and (2) “contention that a newly

- recognized constitutional right should be extended to others does not render [a] petition [ seeking such an expansion of the right] timely pursuant to section 9545(b)(1)(iii). ”) (emphasis in original) , abrogated in part by Montgomery , supra ; s ee also Commonwealth v. Furgess , 149 A.3d 90 , 94 (Pa. Super. 2016) (same , while acknowledging that Cintor a ’s additional holding, that Miller had not been applied retroactively, was “no longer good law” after Montgomery ). Appellant was 18 years old, not younger than 18 years old , when he
murdered Roderick McMahon on August 9, 1996 . Thus, Miller andJ

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Montgomery are inapplicable to Appellant. Accordingly, the PCRA court properly concluded that Appellant failed to plead and prove any of the timeliness exceptions provided in 42 Pa.C.S. § 9545(b)(1), and properly dismissed Appellant’s Petition as untimely. See PCR A Court Opinion at 3

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. The record supports the PCRA court’s findings and its Order is otherwise free of legal error. Accordingly, we affirm.
Order affirmed.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/9/2018