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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA

v.

GEARY T. MYERS

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

PENNSYLVANIA

No. 162 EDA 2023 Appeal from the PCRA Order Entered December 6, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP

- 51

- CR

- 0228571

- 1993

BEFORE: STABILE, J., KUNSELMAN, J., and McLAUGHLIN, J. MEMORANDUM BY STABILE, J.: FILED NOVEMBER 1, 20 23 Appellant, Geary T. Myers, appeals pro se from the order entered December 6, 2022 , in the Court of Common Pleas of Philadelphia County, denying as untimely his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541

- 46. Upon review, we affirm. Following a jury trial , Appellant was found guilty of one count of second

degree murder, multiple counts of aggravated assault and robbery, and a variety of weapons

- related offenses, arising out of a shoot ing spree in Philadelphia on November 20, 1992. Appellant was sentenced to an aggregate term of life in prison. This Court affirmed the judgment of sentence, and our Supreme Court denied Appellant ’s petition for allowance of appeal

. See Commonwealth v. Myers , 677 A.2d 1266 (Pa. Super. 1996) (unpublished memorandum), appeal denied , 681 A.2d 177 (Pa. 1996)

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This Court subsequently affirmed the denial of Appellant’s first, second, third, and fourth PCRA petition s . See Commonwealth v. Myers , No. 2503 EDA 2000 (Pa. Super. filed May 16, 2001) (unpublished memorandum); Commonwealth v. Myers , No. 1219 EDA 2004 (Pa. Super. filed October 28, 2004 ) (unpublished memorandum) ; Commonwealth v. Myers , No. 184 EDA 2015 (Pa. Super

. filed August 31, 2015 ) (unpublished memorandum); and Commonwealth v. Myers , No. 2376 EDA 2017 (Pa. Super. filed July 13, 2018) (unpublished memorandum)

. On February 1 2 , 2020, Appellant filed the PCRA petition at issue here, which he styled as a “Petition for Writ of Habeas Corpus Ad Sub jiciendum , ” which the PCRA court dism issed as untimely on December 6, 2022. This appeal followed. When reviewing the propriety of an order pertaining to PCRA relief, we consider the record in the light most favorable to the prevailing party at the PCRA level. This Court is limited to determining whether the evidence of record supports the conclusions of the PCRA court and whether the ruling is free of legal error. We grant great deference to the PCRA court’s findings that are supported in the record and will not disturb them unless they have no support in the certified record. However, we afford no such deference to the post

- conviction court’s legal conclusions. We thus apply a de novo standard of review to the PCRA [c]ourt’s legal conclusions. Commonwealth v. Diaz , 183 A.3d 417, 421 (Pa. Super. 2018). All PCRA petitions, “including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final” unless anJ

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exception to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). 1 “The PCRA’s time restrictions are jurisdictional in nature. Thus, if a PCRA petition is untimely, neither this Court nor the [PCRA] court has jurisdiction over the petition. Without jurisdiction, we simply do not have the legal authority to address the substantive claims.” Commonwealth v. (Frank) Chester , 895 A.2d 520, 522 (Pa. 2006) (internal citations and quotation marks omitted) (overruled on other grounds by Commonwealth v. Small , 238 A.3d 1267 (Pa. 2020)). As timeliness is separate and distinct from the merits of
A ppellant’s underlying claims , we first determine whether this PCRA petition
is timely filed

. Commonwealth v. Stokes , 959 A.2d 306, 310 (Pa. 2008)

. If it is not timely, we cannot address the substantive claims raised in the petition. Id.

_________________ __________ ______ ____ _______ 1 It is undisputed the underlying PCRA petition is facially untimely. A ppellant’s judgment of sentence became final on October 31, 1996, at the expiration of the time for seeking review by the Supreme Court of the United States

. See U.S. Sup. Ct. R. 13

. Appellant had until October 31, 1997, to file a timely PCRA petition. Since the instant petition was filed in 2020, more than 22 years after the expiration of the deadline, the petition is facially untimely under the PCRA. The one

- year time limitation can be overcome if a petitioner (1) alleges and proves one of the three exceptions set forth in Section 9545(b)(1), and (2) files a petitio n raising this exception within one year of the date the claim could have been presented, s ee 42 Pa.C.S.A. § 9545(b)(2). It would appear that Appellant claims that Commonwealth v. Batts , 163 A.3d 410 (Pa. 2017) ( Batts II ) qualifies as an exception to the PCRA time bar under 42 Pa.C.S.A. § 9545(b)(1)(iii).J

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Appellant essentially argues that he is entitled to relief under Batts II

. According to Appellant, Batts II introduced new sentencing procedures , which , if applied to his case, would result in a more lenient sentence for Appellant

. Appellant also argues that f ailure to apply these procedures results
in constitutional violations ( i.e. , equal protection and due process) that cannot be remedied under the PCRA. The only way to remedy these alleged constitutional violation s is through a writ for habeas corpus, as acknowledged by this C ourt in Commonwealth v. Rouse , 191 A.3d 1 (Pa. Super. 2018).
Because the challenge is not governed by the PCRA, Appellant arg ues, the
PCRA time restrictions are not applicable here. Appellant’s argument raises several issues. W e first address Appellant’s contention that the issue s raised here are outside the scope of the PCRA. To the extent Appellant argues that the issues raised under Batts II involve questions of constitutional dimension outside the scope of the PCRA, we disagree, noting that : (i) claims of constitutional dimension are routinely
rai sed and addressed under the PCRA ; (ii) Batts II involve s the legality of the
sentence , s ee Commonwealth v. Prinkey , 277 A.3d 554, 566 n.22 (Pa. 2022) ; and (iii) challenges to the legality of the sentence fall with the purview of the PCRA , i

d. at 560

. See also Commonwealth v. Fahy , 737 A.2d 214,J

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233 (Pa. 1999)

. Thus, the PCRA Court properly treated Appellant’s underl y ing filing as a PCRA petition, subject to the PCRA rules. 2 Appellant’s reliance on Batts II also is misplaced . I n Ba tts II , our Supreme Court devise d a procedure for the implementation of Miller v. Alabama , 567 U.S. 460 (2012) and Montgomery v. Louisiana , 577 U.S. 190 (2016) in Pennsylvania. 3 Specifically , our Supreme Court held that procedural safeguards beyond consideration of youth and attendant characteristic s pursuant to Miller or the sentencing factors set forth in section 1102.1(d) were required to satisfy Eighth Amendment scrutiny and to ensure
l ife with out possibility of parole [“LWOP”] sentence s were imposed only on the rarest of juvenile offenders whose crimes reflect permanent incorrigibility, irreparable corruption, and irretrievable depr avity. See Commonwealth v.
Street , No. 1038 WDA 202 2 , at *2 (Pa. Super. filed July 18, 2022) ( citing

_________________ __________ ______ ____ _______ 2 T o the extent Appellant espouses our reasoning in Rouse to argue that Appellant’s underlying petition , similarly to Rouse , does not fall within the scope of the PCRA, we note that our Supreme Court expressly rejected our reasoning in Rouse

. See Commonwealth v. Moore , 247 A.3d 990, 998 (Pa. 2021). Thus, Rouse offers no assistance to Appellant’s argument.

3 In Miller , the U.S. Supreme Court determined that “ mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual’ punishments.” Miller , 576 U .S

. at 465. In Montgomery , the U.S. Supreme Court held that Miller was a new substantive rule that, under the United States Constitution, must be applied retroactive ly in cases on state collateral review. Montgomery , 577 U.S. at 212

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Batts II , 163 A.3d at 416). 4 The Batts II court recognized a presumption against the imposition of LWOP for a juvenile offender and held that the Commonwealth must provide reasonable notice of its intent to seek a LWOP sentence and then prove beyond a reasonable doubt that the juvenile offender
is “ permanently incorrigible and that rehabilitation would be impossible. ” Id . *2 (quoting Batts II at 459). In 2021, the United Supreme Court decided Jones v. Mississippi , 141 S.Ct. 1307 (2021) which altered our holding in Batts II that a showing of permanent inco rr igibility must be demonstrated

. In Jones , the United States Supreme Court reaffirmed its decision in Miller and Montgomery and reiterated that mandatory LWOP sentences for juvenile offenders violate the Eighth Amendment. Street , at *2 (citing Jones , 141 S.Ct. at 1311). However, the Supreme Court held that sentencing schemes that allow the discretionary imposition of life sentences after consideration of the juvenile homicide offender’s youth and atte ndant characteristic pass constitutional
muster without the need for a separate factual finding of permanent
incorri gi bility

. Id. (citing Jones , 141 S.Ct. at 1317

- 18). In response to Jones , our Supreme Court issued its decision in Commonwealth v. Felder , 269 A.3d 1232 (Pa. 2022), wherein it rescinded

_________________ __________ ______ ____ _______ 4 See Pa.R.A.P. 126(b) ( non - precedential memorandum decisions of the Superior Court filed after May 1, 2019 , may be cited for their persuasive value )

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the procedural requirements set forth in Batts II that are no t constitutionally require d , i.e. , the presumption against sentencing a juvenile homicide offender to LWOP, and the imposition on the Commonwealth of the burden of proving beyond a reasonable doubt that the juvenile is permanently incorrigible. Street , at *3 (citing Felder , 269 A.3d at 1244). Thus, i n light of Jones and Felder , to the extent Appellant argues that he is entitled to the procedure devised in Batts II , the argument is misplaced as those requirements are no longer valid under Jones

. Next, and most importantly, Appellant is not entitled to the application of Batts II (to the extent it survived Jones ) because Appellant was 20 years old at the time of the underlying crimes. See Commonwealth v. Cotton , 2020 WL 3469702 at *5 (Pa. Super. 2020 ) ( “ Batts II is inapposite to the instant case because [Cotton] was not a juvenile at the time he committed his
crime ” ) ; Commonwealth v. Reeves , 2020 WL 1042640 *4 (P a . Super

. 2020) ( “ Batts II is inapplicable to this case, as Batts II involved the sentencing of a juvenile offender to life imprisonment without the possibility of parole. Here, Reeves was not a juvenile at the time of the murder, but rather 24 years old.” )

. Finally, to the extent that Batts II survived Jones , there is no indication that Batts II ever qualified as a newly recognized constitutional right for purposes of 42 Pa.C.S.A. § 9545(b)(1)(iii). See Cotton , 2020 WL 3469702 at *5 ( even if Batts II were otherwise applicable, our Pennsylvania SupremeJ

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Court has never held that its holding is a newly

- recognized constitutional right or that it applies retroactively. Accordingly, Appellant cannot satisfy subsection 9545(b)(1)(iii)’s time

- bar exception ) ; Commonwealth v. Gaddy , 2020 WL 1970778 ( Pa. Super. April 24, 2020) (same)

. In light of the foregoing where Appellant’s und erlying petition is facially untimely and Appellant has failed to prove that he otherwise has met one of the exceptions to the PCRA’s one

- y ear time bar, we affirm the order of the
PCRA court dismissing as untimely Appellant ’s petition. Order affirmed.



### Date: 11/01/2023