### J
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. JOSEPH DYSON Appellant No. 3124 EDA 2016

Appeal from the PCRA Order September 14, 2016 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP

-09

-CR

-0005936

- 1992

BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY MOULTON, J.: FILED DECEMBER 01, 2017 Joseph Dyson appeals from the September 14, 2016 order entered in the Bucks County Court of Common Pleas denying his third petition for relief filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541

-46

. We affirm. The PCRA court set forth the lengthy factual and procedural history of this case in its Pennsylvania Rule of Appellate Procedure 1925(a) opinion, which we adopt and incorporate herein. See Opinion, 11/30/16, at 1

-5 (“1925(a) Op.”). On appeal, Dyson raises the following issues: 1. Where Miller [v. Alabama, 132 S.Ct. 2455 (2012),] and Mont gomery [v. Louisiana, 136 S.Ct. 718 (2016),] instruct that sentencing a youth to a mandatory sentence of life without possibility of parole, without considering the factor of age and its attendant effects, constitutes a denial

### J
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- 2

- of the Eighth Amendment cruel and unusual punishment charge, did the lower [c]ourt err in not granting [Dyson] the right to be resentenced as the documentary evidence reflects that he was like those who were 56 days younger than he was? 2. Where it was clear that [Dyson] is similarly situated to those who were 56 days younger than he was, did the lower [c]ourt’s failure to extend the Mi l ler /Montgomery holding to him violate the equal protection clause? 3. Where [Dyson] is similarly situated to those 56 days younger than he was, did the [lower court’s] failure to permit resentencing deny substantive and procedural due process, and access to the Courts? 4. Where the Court did not grant resentencing, were the PCRA statute, habeas corpus statute[,] and 18 Pa.C.S. § 1102 unconstitutional as applied to [Dyson]? Dyson’s Br. at 2

-3 (trial court answers omitted). Our review of an order denying PCRA relief is limited to determining “whether the decision of the PCRA court is supported by the evidence of record and is free of legal error.” Commonwealth v. Melendez-Negron, 123 A.3d 1087, 1090 (Pa.Super. 2015). We will not disturb the PCRA court’s factual findings “unless there is no support for [those] findings in the certified record.” Id. We must first address the timeliness of Dyson’s PCRA petition. See Commonwealth v. Brown, 111 A.3d 171, 175 (Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015). In the absence of an applicable exception, a petitioner must file a PCRA petition, including a second or subsequent petition, within one year of the date his or her judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This Court affirmed Dyson’s judgment of sentence on

### J
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- 3

-

October 30, 2001, and the Pennsylvania Supreme Court denied allowance of appeal on June 12, 2002. Dyson did not seek further review in the United States Supreme Court, so his judgment of sentence became final 90 days later, on September 10, 2002. Dyson had one year from that date, or until September 10, 2003, to file a timely PCRA petition. Thus, the instant PCRA petition, filed on March 22, 2016, was facially untimely. To overcome the time bar, Dyson was required to plead and prove one of the following exceptions: (i) unconstitutional interference by government officials; (ii) newly discovered facts that could not have been previously ascertained with due diligence; or (iii) a newly recognized constitutional right that has been held to apply retroactively. See 42 Pa.C.S. § 9545(b)(1)(i)

- (iii). To invoke one of these exceptions, Dyson must have filed his petition within 60 days of the date the claim could have been presented. See 42 Pa.C.S. § 9545(b)(2). In his petition, Dyson alleged the new

-constitutional

-right exception to the one

-year time bar. See 42 Pa.C.S. § 9545(b)(1)(iii). Dyson relied on Miller, in which the United States Supreme Court held that a sentence of life imprisonment without the possibility of parole was unconstitutional when imposed on defendants who were “under the age of 18 at the time of their crimes.” 132 S.Ct. at 2460. Subsequently, in Montgomery, the Supreme

### J
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- 4
-

Court held that Miller applied retroactively to cases on state collateral review. 136 S.Ct. at 736. 1 

### Here, Dyson was 18 years old at the time he committed the offenses for which he was convicted. 2 

### This Court has held that Miller’s prohibition of life

without

-parole sentences does not apply to defendants who were 18 years of age or older at the time of their offenses. See Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa.Super. 2013) (where appellants were 19 and 21 at time of their offenses, “the holding in Miller [did] not create a newly

-recognized constitutional right that can serve as the basis for relief”); accord Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.Super. 2016) (reaffirming Cintora’s holding that petitioners who were 18 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 exception in Section 9545(b)(1)(iii) ”). Therefore, because Dyson was 18 years old at the time of his offenses, Miller does not apply. In his brief, Dyson contends that even though he was 18 at the time of his crimes, Miller’s holding should apply to him because “despite his age of

____________________________________________

1 

### In his petition, Dyson also attempted to assert the newly

-discovered

fact exception to the one

-year time bar, see 42 Pa.C.S. § 9545(b)(1)(ii), arguing that he filed his petition within 60 days of the Montgomery decision

. It is well settled, however, that a judicial decision is not a “new fact” that qualifies as an exception under the PCRA. See Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011).

2 

### Dyson was born on August 21, 1974 and committed the offenses on October 16, 1992

. At the time of the offenses, he was 18 years and 56 days old.

### J
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-

18 years and [56] days, he is just as deserving as those under age 18 to be granted resentencing.” Dyson’s Br. at 15. However, we rejected a similar argument in Cintora . In Cintora, the appellants had argued that Miller should apply to defendants who were under the age of 25 at the time of their offenses “because Miller created a new Eighth Amendment right, that those whose brains were not fully developed at the time of their crimes are free from mandatory life without parole sentences, and because resea rch indicates that the human mind does not fully develop or mature until the age of 25.” 69 A.3d at 764. We stated that the “contention that a newly

-recognized constitutional right should be extended to others does not render their petition timely pursua nt to section 9545(b)(1)(iii).” Id. (emphasis in original). Finally, Dyson asserts that even if his PCRA petition is time

-barred, he is entitled to habeas corpus relief. The PCRA court correctly concluded that Dyson’s “claim falls squarely within the pa rameters of the PCRA, and . . . he is not entitled to seek habeas relief outside the PCRA.” 1925(a) Op. at 8. We agree with and adopt the PCRA court’s cogent reasoning. See id. at 7
-8. Accordingly, because Dyson failed to plead and prove an exception to the one

-year time bar, the PCRA court properly denied his petition as untimely. Order affirmed.

### J
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- 6

-

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/1/2017/ir9.1.1ped11/09/2017 11:52 AM 

# 59 

# 76,;7-1-7

IN 

### THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA 

### CRIMINAL DIVISION



### COMMONWEALTH OF PENNSYLVANIA

vs. 

### JOSEPH DYSON NO. 

### CP-09-CR.0005936-1992

OPINION Joseph Dyson 

### (hereinafter "Appellant") appeals this 

### Court's September 15, 2116, Order denying 

### relief under the Post Conviction 

### ReliefAct (hereinafter "PCRA"). We file this Opinion pursuant to 

### Pennsylvania Rule 

### ofAppellate Procedure 1925(a).
I. 

### PROCEDURAL HISTORY AND 

### FACTUAL BACKGROUND On October 22, 1992, Appellant was charged with Murder 

### of the First 

### Degree,' Robbery,2 Possessing an 

### Instrument 

### of Crime,3 Possessing a Firearm,4 and Carrying a Firearm without a License.5 The facts 

### underlying this case were set forth at length by this Court in a Memorandum Opinion and Order 

### dated May 27, 1993, which we now excerpt as follows: On Saturday, October 17, 1992, the body 

### of Thomas James Ellis, Jr. was found in an isolated wooded area along the River Road adjacent to the Delaware River in Upper 

### Makelleld Township, Bucks County. He Wed as a result 

### of two gunshot wounds. One shot was fired at close range and entered his right cheek lodging in the base 

### ofhis skull. The second bullet entered the back 

### right side 

### of his 

### neck travelling in a 

### sharply upward angle and lodged at the top 

### ofhis skull. There was 

### evidence 

### ofmultiple impacts to the victim's face at or around the time 

### ofdeath. The victim's 1986 Ford Ranger vehicle was found abandoned in Trenton, New 

### Jersey four days later. Large amounts 

### ofblood were found in the front 

### driver and

1 18 Pa.C.S. § 2502(a).

2 18 Pa.C.S. § 3701(a)(1)(i).

3 18 Pa.C.S. § 907(a). 18 Pa.C.S. § 907(b).

5 18 Pa.C.S. § 6106(a).

1

### passenger areas 

### ofthat vehicle and there were also two .25 caliber automatic bullet casings found.
The victim was last seen on Friday night, October 16, 1992, leaving his 

### Morrisville residence at approximately 9:08 p.m. after 

### receiving a 

### telephone call. He left 

### his residence 

### with a 

### pound 

### of marijuana intending to deliver that to 

### the defendant. As he left, he stated 

### that he intended to meet

### Dyson at the McDonald's on 

### Route 13,
The 

### defendant was first interviewed by the 

### police on October 18, 1992. Initially, he denied 

### meeting Ellis on Friday night. Later, 

### he stated that he had 

### met Ellis to 

### purchase marijuana and that he had done so at the request 

### of an individual named "Bugsy." Dyson 

### stated that Ellis arrived atthe McDonald's with an unknown man, sold 

### him the marijuana and left with that same person. Dyson denied any 

### ability to 

### identify or locate "BugSy."
Three days later, Louis Sessa, III, a friend 

### of Dyson, was interviewed, identified 

### himselfas "Bugsy" 

### and related an 

### account 

### ofthe events 

### ofFriday night 

### similar to that given by Dyson, differing, however, 

### in some details. Dyson was again interviewed by the police on October 21, 1992. Initially, 

### he gave several inconsistent accounts 

### of the murder 

### of Ellis. Ultimately, he 

### admitted that on Friday 

### night he and Sessa

### decided to steal 

### the marijuana from Ellis. He stated that he brought his .25 caliber pistol, called Ellis from a 

### telephone booth 

### and induced 

### him to 

### meet at the ivIeDonald's. Sessa drove 

### himself and Dyson to the /vIcDonald's 

### in Sessa's Pontiac automobile. They arrived before Ellis. When Ellis arrived, according to the statement given by Dyson, Dyson instructed Ellis to pull around 

### the corner to a 

### darker location, ostensibly 

### for the purpose 

### ofmaking a drug transaction. Dyson stated that he got out 

### of Sessa's car with the gun in his pocket and 

### entered the passenger side 

### ofEllis's truck, After getting the 

### pound 

### ofmarijuana from Ellis and arguing 

### about "something," he 

### shot Ellis in the face. He described watching Ellis's body convulse and his leg until it stopped twitching. He denied 

### firing the second shot in 

### the back 

### ofthe head. He stated 

### that he 

### dropped the gun in the 

### truck and returned to Sessa's car as Sessa got into 

### the driver's seat 

### of Ellis's truck. 

### Dyson stated that Sessa drove the truck to 

### Upper Makefield Township and that 

### he followed in the Pontiac. 

### Once there, 

### according to Dyson, Sessa dragged the body 

### out 

### of the truck 

### and into the woods where it, was ultimately found. They then drove 

### the truck to 

### Trenton where they abandoned it. 

### By Dyson's statement, the two then 

### drove 

### back to Bucks County, and on the way 

### back, Sessa threw the keys out

2

### of the 

### window into 

### the Delaware River. The two 

### of them then divided the marijuana. 

### During the execution 

### of a search warrant on Dyson's residence 

### on October 

### 28,1992, marijuana wasfound in Dyson's bedroom. On 

### that same date, 

### the murder weapon was recovered at Dyson's place 

### of employment where it had been concealed. The police were led to that location as a 

### result 

### of a 

### letter written by Dyson to 

### his brother. 

### In thatletter, Dyson asked his brother to ask a specified person to testify 

### to certain facts, and further, to proceed to the place where the gun was hidden.in order to 

### retrieve an unidentified item and to 

### dispose 

### ofit. The .25 caliber pistol which the police:recovered from that hiding;place 

### had been given to Dyson 

### during the 

### summer 

### of 1992. A 

### Breams expert 

### from the Pennsylvania State 

### Police examined the pistol and concluded that the bullets removed from the victim, and the 

### casings recovered from the victim's truck, were fired from 

### that pistol. The offenses underling his conviction were committed on October 16,:1992. 

### Appellant's date 

### ofbirth is 

### August 21, 1974. Therefore, Appellant was eighteen (18) years 

### of age at the time the offenses 

### were committed. As detailed in 

### our Notice 

### ofIntent to Dismiss Pursuant to Pennsylvania Rule 

### ofCriminal Procedure 907, filed 

### June 14, 2016, the relevant procedural history is as follows: 

### On March 10, 1993, [Appellant] entered an open guilty 

### plea to 

### the above charges. 

### Following a 

### degree

### -of -guilt hearing, the Court found [Appellant] guilty 

### of first -degree murder. On 

### June 24, 1993, [Appellant] was 

### sentenced to a mandatory 

### period of 

### life imprisonment on the first- degree murder charge, with a 

### concurrent term 

### ofimprisonment 

### of ten (10) to twenty (20) years 

### on the remaining charges. [Appellant] did 

### not file a direct appeal to the 

### Superior Court. [Appellant] filed 

### a PCRA Petition on July 6, 1994. 

### After several ancillary issues were resolved, this Court denied the Petition, [Appellant] appealed and the Superior Court affirmed 

### in all aspects except 

### with respect to his claim 

### that prior counsel was 

### ineffective for not filing a direct appeal. The 

### Superior Court remanded to this Court to 

### conduct an evidentiary

### hearing.n that issue alone. On 

### April 16, 2001, this Court determined 

### that [Appellant] was entitled to 

### relief and, by 

### order dated April 20, 

### 2001, reinstated 

### [Appellant's] rights to direct appeal mine 

### pro tunc. On May 1, 

### 2001, [Appellant] filed a Notice 

### ofAppeal from the

### judgment 

### of sentence 

### imposed in 1993 following his guilty plea. On October 30, 

### 2001, the

3Superior 

### Court affirmed the.judgment 

### ofsentence 

### of this Court. [Appellant] filed a timely 

### petition for allowance 

### of appeal with the Pennsylvania Supreme Court, which was denied. On 

### August 19, 2003, [Appellant] filed a 

### pro se 

### petition for writ 

### of habeas corpus with this Court. This Court treated the writ 

### of habeas corpus as 

### [Appellant's] second PCRA petition, which was 

### then dismissed without a hearing as untimely. [Appellant] appealed to the Superior Court. On August 25, 2004, the Superior 

### Court issued a non-precedential 

### decision remanding the 

### matter back to this 

### Court to decide the merits 

### of the writ 

### ofhabeas corpus, as the Superior Court found

### the filing 

### of the

### writ 

### ofhabeas corpus to be 

### [Appellant's] first PCRA petition. This 

### Court held a 

### hearing on February :25, 2005, and denied 

### the petition on 

### September 7, 2005. [Appellant] filed a Notice 

### ofAppeal to the 

### Superior Court on October 3, 2005. 

### On August 16, 2007, the Superior Court affirmed this 

### Court's decision. [Appellant] 

### then filed 

### what was considered a second PCRA Petition on August 24, 

### 2012, and 

### an Amended Petition on August 19, 2013. 

### On January 3, 2014, [Appellant] filed 

### an "Amended Petition 

### far Habeas Corpus 

### Relief" On January 16, 

### 2014, this Court sent Defendant a 

### Notice 

### ofIntent to 

### Dismiss without Hearing 

### pursuant to 

### Pennsylvania Rule 

### of Criminal Procedure 907. [Appellant] filed a 

### response on February 7, 2014. On February 12, 2014, this Court dismissed the Petitions as the issues raised were time.barredand this Court lacked jurisdiction. On 

### March 13, 2014, [Appellant] filed 

### a timely Notice 

### of Appeal to 

### the Superior Court. On 

### November 14, 2014, the Superior Court issued a nonprecedential decision affirming this 

### Court's February 12, 2014, 

### Order dismissing [Appellant's] PCRA Petition. On March 30, 2015, the 

### Pennsylvania Supreme Court denied 

### [Appellant's] Petition for Allowance 

### ofAppeal. On March 22, 2016, 

### Appellant filed 

### the instant PCRA petition. On June 20, 2016, this Court entered an 

### Order notifying Appellant 

### of our intent to dismiss his PCRA petition without a hearing 

### pursuant to Pennsylvania Rule

### ofCriminal Procedure 907. On 

### August 16, 2016, Appellant filed objections to 

### this 

### Court's Rule 907 notice .6 On September 14, 2016, 

### this Court entered an

6 Appellant's counsel was retained after issuance ofour 907 Notice ofIntent toDismiss. Therefore, on June 29, 2016, this Court granted counsel for Appellant's request for an extension of time to file objections to this Court's 907 notice, thereby rendering the objections dueon. orbefore July 19, 2016. On July 15, 2016, Appellant again requested, and this Court granted, an extension oftime to fileobjections to the 907 notice, thereby rendering the objections due on or before August 6, 2016. Finally, on August4 2016, this Court granted Appellant's third request for an extensionof time to file objections to the 907 notice, thereby rending the:objections due on or before August 15, 2016. 4Order denying 

### Appellant's Motion for Post Conviction Relief. Appellant filed a 

### timely Notice 

### of Appeal to the Superior Court on October 4, 2016.
11. 

### STATEMENT OF MATTERS COMPLAINED OF ON 

### APPEAL On October 5, 2016, this Court issued an Order pursuant to Pa.R.A.P. 1925(b) directing Appellant to file a 

### Concise Statement 

### ofMatters Complained 

### ofon. Appeal 

### within twenty-one (21) days. On 

### October 24, 2016, Appellant filed 

### his Concise Statement raising the following issues, verbatim:

1 

### Petitioner's sentence 

### is unconstitutional because age was never considered by the 

### legislature in 

### determining whether a mandatory life sentence should be given for all those in excess 

### of18 years 

### ofage Thus, the mandatory life sentence violates both the Eighth and 

### Fourteenth Amendments as the life sentence imposed in 

### this case was cruel and unusual under 

### Miller v. 

### Alabama, 567 U.S.

, 132 S.Ct. 2455 (2012) and Montgomery v. 

### Louisiana, 577 U.S. 

# -, 136 S.Ct. 718 (Jan. 25, 2016), especially since,Mr. Dyson was a mere 18 years and 55 days old when 

### he committed this crime. This ground provided a basis for 

### either PCRA or habeas corpus relief. 2. 

### Petitioner's sentence is 

### unconstitutional because Pennsylvania law,permits imposition 

### of mandatory life 

### without parole sentences on 18 

### year olds, even 

### for those who are merely one day over 

### that bright line, when such a sentence is now prohibited for 17 years old with whom 

### he is 

### similarly situated. See, 

### Miller and Montgomery. 

### Based on the scientific evidence and those cases, 

### an automatic sentence 

### of life 

### without the possibility 

### ofparole for Mr. 

### Dyson lacks 

### a rational basis and therefore violates 

### his equal 

### protectionrights under the 

### US. and 

### Pennsylvania constitutions. Alternatively, imPosition 

### ofthis sentence violates 

### the strict 

### scrutiny 

### test because the restriction 

### ofliberty is a fundamental right. These grounds also 

### provided a 

### basis for either PCP_A. or habeas relief: 3, 

### Petitioner was denied substantive and procedural due process 

### under the Fifth and 

### FourteenthAmendments, and correspondingPennsylvania Constitutional provisions, since he was 

### unable to present the factors 

### ofage, extreme childhood abuse and other mitigating factors to 

### attempt to 

### lessen his sentence 

### of life without parole. Accordingly, the PCRA Petition should have been granted to 

### permithim to do so. 4. 

### Petitioner's sentence was also unconstitutional as applied for the reasons set forth above, 

### which are 

### hereby incorporated by reference. 

### At the very least, 

### Petitioner should have been 

### permitted:the opportunity to demonstrate,in a hearing 

### that there

### is a rebuttable presumption 

### under the 

### principles 

### ofMiller and Montgomery and cases cited 

### therein 

### that he should not have 

### been sentenced 

### to a period 

### ofmandatory life without 

### parole based on all the factors stated above.

55, 

### Petitioner's sentence was unconstitutional under Article 1, Sections 1, 9, 13 and 26 

### ofthe 

### Pennsylvania Constitution for the reasons set forth above in the corresponding federal constitutional violations, which are hereby incorporated by reference. This ground also provided a 

### basis for relief_
6. 

### Pursuant to 

### 42 Pa.C.S. §9545(b)(1)(iii), Petitioner is entitled to have his sentence vacated as 

### Miller and Montgomery created a new constitutional right 

### that has been applied retroactively and should be applied to Mr. Dyson as well because he is similarly situated to those 

### under age 18. This ground should have also provided for PCRA and/or habeas relief.
7. 

### Alternatively, 

### if Petitioner is ineligible to obtain 

### relief under the Post-conviction 

### Relief Act, 42 

### Pa.CS. §9541 et seq. and more panicularly under 

### §9545(b)(I)(iii), he is entitled to 

### relief under the Pennsylvania and United States habeas corpus statutes for the various reasons stated above. 

### Under Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638, 640 (1998), 

### habeas 

### reliefexists where there is no remedy under the PCRA. See also, Article 1, Section 14 

### ofthe Pennsylvania Constitution. Accordingly, 

### it is 

### respectfully submitted 

### if relief cannot be had 

### under the. PCRA, then the Court should have granted him a hearing 

### and/or 

### reliefunder habeas corpus.
8. 

### IfPetitioner is not 

### entitled to 

### utilize either PCRA or habeas corpus remedies where there 

### appear to be 

### violations 

### of equal protection, substantive and 

### procedural.due process, and/or 

### the cruel and unusual 

### punishment clause 

### ofthe Eighth Amendment as stated above, then the 

### PCRA and/or habeas corpus procedural and substantive remedies under both the 

### Pennsylvania statutes and constitution are unconstitutional as applied to him. 

### Petitioner was accordingly, entitled

### to 

### a hearing to determinewhetherthe

### protections 

### ofMiller should be extended to him.
9. 

### Petitioner was denied 

### both the substantive and procedural due process rights 

### to have access to, and 

### prosecute, his 

### claims in the Pennsylvania courts. 

### III. DISCUSSION
In his 

### objections to our Rule 

### of Criminal Procedure 907 Notice 

### of Intent to Dismiss, 

### Appellant argues he is entitled to 

### relief under the PCRA as a result 

### of the United States Supreme 

### Court's decisions in 

### Miller v. 

### Alabama, 132 S. Ct. 2455 (2012), and 

### Montgomery v. 

### Louisiana, 136 S. Ct. 718 (2016). 

### Appellant also argues that 

### ifhis claim is time barred under 

### the PCRA, he is entitled to 

### relief outside the PCRA under 

### a writ 

### of habeas corpus. For the reasons discussed below, we 

### find Appellant is 

### not entitled to 

### reliefoutside 

### the PCRA, and that because his PCRA Petition is untimely, this Court lacks

### jurisdiction to 

### reach his claims on the merit.

6a. 

### Habeas Relief Outside the PCRA Appellant contends he is entitled to 

### habeas reliefoutside the PCRA. Appellant argues that 

### ifhe is 

### not entitled to 

### reliefunderthe PCRA due to timeliness, he has no grounds for 

### reliefunder the PCRA and is 

### therefore entitled to a hearing to address his claims on 

### the merits under a writ 

### of habeas corpus. We disagree. The 

### Pennsylvania Supreme Court has held the 

### PCRA "subsumes the writ 

### ofhabeas corpus in circumstances 

### where the PCRA provides a remedy 

### for the 

### claim." Commonwealth v. 

### Hackett, 956 

### A.2d 978, 985 (Pa. 

### 2008); Commonwealth v. Taylor, 65 

## Aid 462, 465 (Pa. Super. Ct. 2013) (citing Commonwealth v, 

### Fahy, 737 

## Aid 214, 223-24). By its 

### own text, it is well -settled that the PCRA is 

### intended to be the sole means 

### for collaterally 

### attacking 

### a conviction or sentence: * **
The action 

### established in this subchapter shall be 

### the sole means 

### of obtaining collateral 

### reliefand encompasses all other common law and 

### statutory remedies for 

### the same 

### purpose that 

### exist when this subchapter takes effect, 

### including habeas corpus and coram nobis.

42 Pa.C.S. § 

### 9542; see Taylor, 65 

### A.3d 

### at 465. It is significant to note 

### the habeas corpus statute provides, "where a person is 

### restrained by virtue 

### ofsentence after conviction for a. criminal offense, the writ 

### ofhabeas corpus shall 

### not be available 

### if a remedy may be 

### had by 

### post-conviction hearing proceedings authorized by law," 42 Pa.C.S, § 6503(b), The 

### PCRA allows numerous grounds for collateral relief, including where the conviction
or sentence 

### resulted from the

### imposition 

### ofa sentence greater 

### thanthe lawful maximum. 42 Pa.C.S. § 9543(a)(2)(vii). 

### Therefore, claims challenging, the 

### legality 

### ofa sentence are cognizable under 

### the PCRA. See 

### Commonwealth v. Infante, 63 A.3d 358; 365 (Pa, Super. Ct. 2013) ("Although legality 

### ofsentence is always subject to review within the PCRA, claims must still first satisfy the

7

### PCRA's time limits 

### or one 

### ofthe exceptions thereto."); Commonwealth v. 

### Fahy, 737 

### A.2d 214, 223 (Pa. 1999) (same). 

### Appellant's petition challenges his sentence 

### pursuant to Miller. 

### Appellant argues his life sentence 

### without the possibility 

### of parole violates his right to be free from cruel and unusual punishment. It 

### is well-established that a claim, such as that under 

### Miller, constitutes a challenge
to the legality 

### ofthe sentence. See Commonwealth v. Brown, 71 A.3d 1009, 1010 (Pa. Super. Ct. 2013) (citations 

### omitted); Commonwealth v. Howard, 540 

## Aid 960, 961 (Pa. Super. Ct. 1988). Therefore, 

### Appellant's claim falls squarely within the parameters 

### of the PCRA, and we find 

### he is not entitled to seek 

### habeas reliefoutside the PCRA. b. 

### Timeliness 

### ofPCRA Petition Having first determined 

### Appellant's claims fall 

### squarely within the PCRA, we 

### note the instant Petition is untimely 

### and Appellant has failed to plead and prove any 

### of the timeliness exceptions. Therefore, we 

### consider only the narrow issue 

### ofthis Court's lack 

### of jurisdiction to adjudicate the merits 

### ofAppellant's claims. Pennsylvania.law makes clear 

### that thetimeliness 

### ofa 

### PCRA petition is a

### jurisdictional threshold and may 

### not be 

### disregarded in order to reach the merits 

### of

### the claims raised in a PCRA 

### petition that is untimely. Commonwealth v. Abunfamal, 833 A.2d 719, 723-24 (Pa. 

### 2003) (citations omitted); Commonwealth v. 

### Murray, 753 A.2d 201, 203 (Pa. 2000). A 

### PCRA petition must be filed within one year 

### of the date the 

### judgment 

### of sentence becomes final. 42 

### Pa.C.S.A. § 9545(b)(3). In 

### the instant matter, Appellant was sentenced on June. 24, 1993, and 

### the Superior Court affirmed 

### the

### judgment 

### of sentence on October 30, 2001. 

### The Pennsylvania Supreme Court denied 

### allocator on 

### June 12, 2002. Therefore, 

### Appellant's judgment 

### of sentence became final on September 10, 2002, 

### when the'period for Appellant to file .a 

### petition for 

### writ 

### of certiorari in the

8United States Supreme Court expired. See 42 Pa.C.S.A, § 9545(b)(3) (stating, 

### "a judgment becomes final at the 

### conclusion 

### of direct review, including discretionary review in the Supreme Court 

### ofthe United States and the Supreme Court 

### ofPennsylvania, or at the expiration 

### oftime for seeking the review"). 

### Therefore, Appellant had until September 10, 2003, to timely file his PCRA petition. As the instant petition was filed. March 22, 2016, 

### it is patently untimely. However, an 

### untimely petition may be received by 

### this Court 

### when the petition alleges, and the 

### petitioner proves, that any 

### ofthe three limited exceptions to 

### the time for 

### filing the petition applies. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Therefore, to reach themerits 

### ofAppellant's claim, he 

### must plead and 

### prove one 

### ofthe following exceptions: (i) the failure to 

### raise the claim previously was the 

### result 

### of interference by 

### government officials with'the presentation,of the claim 

### m violation 

### ofthe Constitution or laws 

### ofthis Commonwealth or the Constitution or laws 

### of the 

### United States; (ii) the facts upon 

### which 

### the

### claimis predicated were

### unknown to the defendant 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 

### ofPennsylvania 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). It is the 

### petitioner's burden to 

### prove the applicability 

### of an exception. Commonwealth v. Beasley, 741 A.2d 1258, 1261 (Pa. 1999); Commonwealth v. 

### Greer, 936 A.2d 1075, 1077 (Pa. Super. Ct. 2007). Additionally, 

### any petition invoking one 

### of these exceptions 

### must be filed within sixty days 

### of the date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2). Here, 

### Appellant fails to 

### pleadand prove any 

### ofthe exceptions to 

### the timeliness requirement 

### permitted under section 9$42(b), which he is required to do to invoke an exception. See Commonwealth v. Beasley, 741 A.2d 1358 

### (Pa 1999); 

### Commonwealth v. Ciandy, 38 A.3c1899 (Pa.

9Super. Ct. 2012); Commonwealth v. Williamson, 21 A.34 236 (Pa. Super. Ct. 2011); Commonwealth v. Burton, 936 A,2d 521 

### (Pa Super. Ct. 2007). Rather, Appellant engages in 

### a lengthy discussion 

### of the purported merits 

### of his claims, which do 

### not implicate a statutory exception. 

### Appellant does 

### not-and cannot-allege-any interference from government officials. See 42 Pa.C.S

### A. § 9545(b)(1)(i). Moreover, Appellant fails to demonstrate that his Petition relies upon facts 

### that were previously unknown to him, and could not have been 

### ascertained by the exercise 

### ofdue 

### diligence. See42 Pa.C.S.A. § 9545(b)(1)(ii). Although 

### Appellantdiscusses Miller and 

### Montgomety in his objections to our 907 Notice, these cases do not qualify as 

### "facts" for the 

### purpose 

### of section 9545(b)(1)(ii). See Commonwealth v. 

### Gintora, 69 A.3d 759, 763 (Pa. Super. Ct. 2013) 

### (holding 

### judicial decisions cannot be considered newly-discovered facts which would invoke the 

### protections afforded by section 9545(b)(1)(ii)); Commonwealth v. Watts, 23 A.3d 980 (Pa. 2011) 

### (holding, 

### a judicial opinion does not qualify as a 

### previously unknown "fact" capable 

### of triggering the timeliness exception set forth in section 9545(b)(1)(ii) 

### of the PCRA; "section 

### 9545(b)(1)00 applies only 

### if the petition has uncovered facts that Could 

### not have, been ascertained 

### through due 

### diligence, and

### judicial determinations are 

### not facts"); Commonwealth v. 

### Brandon, 51 A.3d 231, 235 (Pa. Super, Ct. 2012) (same). 

### Although not:expressly stated, our 

### review

### ofthe record reflects 

### Appellant has attempted to invoke the third 

### exception to the PCRA timeliness requirements, i.e., 

### "the right asserted is a constitutional right that was 

### recognized by the Supreme Court 

### ofthe 

### United States or the Supreme 

### Court

### ofPennsylvania after thetime period provided

### in this section and has beenheld by 

### that court to apply 

### retroactively," with reliance on the United States Supreme 

### Court decisions in 

### Miller v. 

### Alabama, 132 S. Ct. 2455 (2012), and Montgomery v. 

### Louisiana, 136 S. Ct. 718 (2016). Specifically, 

### Appellant engages in a lengthy discussion 

### ofMiller V. 

### Alabama, 132 S. Ct. 2455

10(2012), and argues his sentence constitutes "cruel and unusual 

### punishment and a denial 

### of equal protection" and 

### "that the protections offered to those 

### under 18 in [Miller) should be extended to him since he was a 

### mere 18 years and 55 days old when his crime was committed." See 

### Appellant's Memorandum 

### ofLaw in Support 

### of Objections to 907 Notice 

### of Intent to Dismiss, filed August 

### 16,2016. First, it 

### should be 

### noted Appellant correctly states the Court in Montgomery v. 

### Louisiana, 136 S. Ct. 718 (2016), held that because Miller announced 

### anew substantive rule 

### ofconstitutional law, 

### it should be given retroactive effect to cases on collateral review. In Miller, the Court held that mandatory life imprisonment without the possibility 

### of parole for those under the age 

### of eighteen 

### at the 

### time 

### of their crimes violates the. Eighth 

### Amendment's prohibition on cruel and unusual 

### punishment 132 S. Ct. at 2463. The holding 

### in Miller, 

### however, was limited to those offenders who ere 

### under eighteen at the 

### time they committed 

### their crimes, and no court to date has held 

### Miller applies to individuals over eighteen years 

### of age, 

### or that a sentence 

### of life imprisonment 

### without the possibility 

### of parole for those over 

### the age 

### of eighteen is unconstitutional. In Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super. Ct. 2013), the Superior Court held 

### Miller is 

### not an exception under section 

### 9545(b)(000 to those over the age 

### of eighteen 

### at the 

### time they committed 

### their crimes. Here, because Appellant was over eighteen

at the 

### time he 

### committed the underlying crimes in this 

### matter, Miller is inapplicable and he is not entitled to 

### relief on thisbasis. Similarly, Montgomery is inapplicable to 

### Appellant's case, as it was limited solely to 

### application 

### ofthe Miller decision. 

### Appellant 

### next contends Montgomery's holding indicates Alleyne v. United States, 133 S. Ct. 2151 (2013), 

### must be given retroactive 

### effect! First, the court 

### inMontgomery did not address

7 Although Appellant raised this argument in his PCRA petition, it appears heabandoned this claim in his objections to our 907 notice.
11Alleyne, and 

### therefore this claim is wholly rneritless. Additionally, neither Alleyne 

### nor any case interpreting Alleyne 

### has held it is retroactive to cases on collateral review. See Commonwealth v. Riggle, 119 A.3d 1058, 1064 (Pa. Super. Ct. 2015) (declining to construe the decision in Alleyne applies 

### retroactively to cases during 

### PCRA review). Accordingly, Appellant does not meet the 

### section 9545(b)(1)(iii) 

### exception wider

### this theory either. 

### "Ifthe 

### petition is 

### determined to be untimely, and no exception has been pled or proven, the petition 

### must be 

### dismissed 

### without a

### hearing because Pennsylvania courts are without

### jurisdiction to 

### consider the 

### merits 

### ofthe

### petition." Commonwealth v. Gandy, 38 

## Aid 899, 903 (Pa. Super. Ct. 2012) (citing 

### Commonwealth v. 

### Perrin, 947 A.2d 1284, 1285 (Pa. Super. Ct. 2008)); Commonwealth v. 

### Fairiror, 809 A.2d 396, 398 (Pa. Super. Ct. 2002) 

### (holding that PCRA court 

### lacks.jurisdiction to 

### hear untimely petition). We determined 

### Appellant did not plead and prove an exception to the 

### timeliness requirement 

### ofthe PCRA, and as such, we did 

### nothavejurisdiction to consider

### the merits 

### of his Petition. IV. 

### CONCLUSION For the foregoing reasons, we 

### perceive the issues which Appellant has complained in this Appeal are 

### without merit. Accordingly, this Court's September 14, 

### 2016, Order denying Post Conviction 

### Reliefwas supportedby both the law and record in

### this case.

DATE: 

# f

# if0/ 0147 RY THE COURT: 

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# M SAW, 

# Ufa. OND F. 

### MCHUGH, S.

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