J-S59043- 14

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 NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37 COMMONWEALTH OF PENNSYLVANIA,

Appellee v. LARRY STEPHENSON,

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

PENNSYLVANIA

No . 1357 EDA 2014 Appeal from the Order entered February 4, 2014, in the Court of Common Pleas of Delaware County, Criminal Division, at No: CP- 23

- CR -0100982-1974 BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.* MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 09, 2014 Larry Stephenson (Appellant) pro se appeals from the February 4, 2014 order which denied his petition for relief file d pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-954 6. We affirm. In October 1973, Appellant, 24 years old at the time , was involved in the robbery of a bar that resulted in a patron being shot and killed. He was convicted of several offenses, including first-degree murd er. On April 25, 1975, Appellant was sentenced to life imprisonment with out the possibility of parole. On August 15, 2013, Appellant filed a pro se PCRA petition, which is the subject of this appeal. On November 27, 2013, the PCRA court filed a notice of intent to dismiss the petition as untimely pur suant to Pa.R.Crim.P. 907. Appellant responded, and the petition was dism issed by order of February 4, 2014.J-S59043- 14

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Appellant timely filed a notice of appeal. Both Ap pellant and the PCRA court complied with Pa.R.A.P. 1925. Appellant present s three questions to this Court on appeal.

I. Did the [PCRA] court err in not granting a resentenci ng hearing to Appellant ... when it did not consider wheth er mandatory life-without-parole terms for adults in no nhomicide and homicide cases violate state and federal equal protection clauses, as well as Art. 7 of the Univer sal Declaration of Human Rights?

II. Did the [PCRA] court err in not granting a resentenci ng hearing to Appellant ... when it did not consider wheth er mandatory life-without-parole terms for individuals o ver age 17 but below age 25 violates the United States C onstitution’s Eighth Amendment, Art. 5 of the Universa l Declaration of Human Rights, as well as Art. 1, Section 13 of the Pennsylvania Constitution?

III. Did the [PCRA] court err in not granting a resentenci ng hearing to Appellant ... when it did not consid er whether a new trial with a “life

- qualified” jury because Appellant’s age changes the possible punishment for first/second degree murder? Appellant’s Brief at 3 (some capitalization omitted). We consider Appellant’s arguments under the following st and ard of

review. On appeal from the denial of PCRA relief, our standa rd of review calls for us to determine whether the ruling of the P CRA court is supported by the record and free of legal error. The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. The PCRA co urt's factual determinations are entitled to deference, but its leg al determinations are subject to our plenary review.J-S59043- 14

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Commonwealth v. Nero , 58 A.3d 802, 805 (Pa. Super. 2012) (quotations and citations omitted). The timeliness of a post-conviction petition is jurisdict ional.

Commonwealth v. Robinson , 12 A.3d 477, 479 (Pa. Super. 2011). Generally, a petition for relief under the PCRA, in cluding a second or subsequent petition, must be filed within one year of the date the judgment of sentence became final unless the petition alleges, and the petitioner proves, that an exception to the time for filing the petition is met. 42 Pa.C.S. § 9545. Applying this law to the case at hand, w e address together Appellant’s first and second questions. It is clear that Appellant’s petition is facially untimely: his judgment of sentence became final in 1998

. 1 Appellant alleges that his petition is timely based upon the United Sta tes Supreme Cour t’s holding in Miller v. Alabama , 132 S.Ct. 2455 (2013). Presumably, Appellant is asserting that the Miller decision satisfies the following timeliness exception: “the right asserted is a constitutio nal right that was recognized by the Supreme Court of the United States or the Supreme Court

1 In a previous appeal to this Court, we concluded that A ppellant’s sentence became final on January 5, 1998, when the 90 day per iod expired in which Appellant had to file a writ of certiorari to the Un ited States Supreme Court after our Supreme Court affirmed his judgment of sent ence. Commonwealth v. Stephenson , 764 A.2d 1129 (Pa. Super. 2000) (unpublished memorandum at 5).J-S59043- 14

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of Pennsylvania after the time period provided in th is section and has been held by that court to apply retroactively.” 42 Pa.C. S. § 9545(b)(iii). The alleged timeliness exception clearly does not apply to Appellant’s petition. First, the holding of Miller is “that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without p ossibility of parole

for juvenile offenders.” Miller , 132 S.Ct. at 2469 (emphasis added). Appellant was not a juvenile at the time this inciden t occurred. Furthermore, in Commonwealth v. Cunningham , 81 A.3d 1 (Pa. 2013),

cert. denied , 134 S.Ct. 2724 (2014), our Supreme Court held tha t the United States Supreme Court’s holding in Miller does not apply retroactively. Thus, even if Appellant were a juvenile at the time of th e murder, Miller would not

entitle him to relief. 2 Because Appellant did not plead facts that would establi sh an exception to the PCRA’s timeliness requirements, the PC RA court properly dismissed Ap pellant’s petition.

Order affirmed.

2 Because Appellant untimely filed his petition, we nee d not address his third issue, where App ellant argues that “he is entitled to a trial by a ‘l ife

qualified’ jury because of his similar biological charact eristics as those under the age of 18.” Appellant’s Brief at 16.J-S59043- 14

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/9/2014