J.A22041/14 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF 

 : PENNSYLVANIA 

Appellee : 

: 

 v. : 

 : 

 : 

DARON NESBIT, : 

 : 

 Appellant : No. 2162 MDA 2013 

Appeal from the PCRA Order November 4, 2013 

In the Court of Common Pleas of York County 

Criminal Division No(s).: CP-67-CR-0002131-1997 

BEFORE: PANELLA, SHOGAN, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED JULY 29, 2014 

Appellant, Daron l. Nesbit, takes this counseled appeal from the order 

entered in the York County Court of Common Pleas denying his third petition 

filed pursuant to the Post Conviction Relief Act1

(“PCRA”). Appellant 

contends the PCRA court erred in denying his petition without a hearing 

because his sentence of life without the possibility of parole was 

unconstitutional under Miller v. Alabama, 132 S. Ct. 2455 (2012), and 

under Article I, Section 13 of the Pennsylvania Constitution. We affirm. 

 

*

 Former Justice specially assigned to the Superior Court. 

1

 42 Pa.C.S. §§ 9541-9546.
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A prior panel of this Court stated the facts and procedural posture of 

this case as follows: 

On March 8, 1997, Paul Smith went out with some friends 

and relatives to celebrate his cousin’s birthday. After

going to a bar, the group proceeded to the Majestic 

Restaurant, where Smith went inside to purchase some 

beer. As Smith left the restaurant, he encountered Melisha 

Grimes, and the two stopped to talk. They returned to the 

restaurant so that Grimes could write down her pager 

number for Smith and, while inside, Appellant, then 16 

years old, approached them and a verbal altercation 

occurred. Soon, the confrontation moved out into the 

parking lot and Appellant and Smith began to fight. 

Appellant pulled out a gun and fired two shots at Smith, 

killing him, and then fled. 

 Appellant was charged with first-degree murder, thirddegree murder, voluntary manslaughter, and involuntary 

manslaughter. On November 13, 1997, he was convicted 

of first-degree murder. On December 29, 1997, he was 

sentenced to life imprisonment without parole. His 

judgment of sentence was affirmed by this Court on March 

31, 1999 and his petition for allowance of appeal to our 

Supreme Court was denied on October 5, 1999. 

 On December 21, 2000, Appellant filed a PCRA petition 

and the PCRA court granted a new trial. On November 20, 

2001, following a second jury trial, Appellant was again 

convicted of first-degree murder and sentenced on that 

date by the trial court to a term of life imprisonment. 

Appellant filed a direct appeal to this Court on December 

3, 2001, which affirmed Appellant’s judgment of sentence 

on November 12, 2002. On June 26, 2003, our Supreme 

Court denied Appellant’s petition for allowance of appeal.

 On February 5, 2004, Appellant filed a pro se PCRA 

petition and JoAnne Floyd, Esquire, was appointed to

represent him. On March 26, 2004, [she] filed an 

amended PCRA petition and the PCRA court conducted an 

evidentiary hearing on July 19, 2004. On September 17, 

2004, the PCRA court denied Appellant’s petition and this 

Court affirmed that order on August 8, 2005. On January 
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20, 2006, our Supreme Court denied Appellant’s petition 

for allowance of appeal. 

 That same day, Appellant filed a second pro se PCRA 

petition in which he alleged that Attorney Floyd was

ineffective for failing to call trial counsel, Mark S. 

Greenberg, and Brian A. March, Ph.D., to testify at the July 

19, 2004 PCRA evidentiary hearing. On March 13, 2006, 

Judge Blackwell, sitting as the PCRA court, appointed Heidi 

R. Freese, Esquire as PCRA counsel. On April 11, 2006,

Judge Blackwell issued notice pursuant to Rule 907 of the 

Pennsylvania Rules of Criminal Procedure of her intention 

to dismiss Appellant’s PCRA petition as untimely. . . . [O]n 

June 16, 2006, [the PCRA court] entered an order 

dismissing Appellant’s petition as untimely.

 Appellant timely appealed pro se . . . 

Commonwealth v. Nesbit, 1351 MDA 2006, 1365 MDA 2006 (unpublished 

memorandum at 2-5) (Pa. Super. Sept. 26, 2007). 

This Court affirmed on September 26, 2007. Id. at 7. On July 18, 

2008, the Pennsylvania Supreme Court denied Appellant’s petition for 

allowance of appeal. Commonwealth v. Nesbit, 953 A.2d 541 (Pa. 2008). 

On August 1, 2012, Appellant filed the instant pro se PCRA petition. 

On August 28, 2012, present counsel entered his appearance. On October 

9, 2012, and December 12, 2012, the PCRA court stayed the matter pending 

the decisions by the Pennsylvania Supreme Court in Commonwealth v. 

Batts, 66 A.3d 286 (Pa. 2013), and Commonwealth v. Cunningham, 81 

A.3d 1 (Pa. 2013). On November 4, 2013, the PCRA court denied the 

petition. On November 26, 2013, the PCRA court denied Appellant’s motion 

for reconsideration. This timely counseled appeal followed. Appellant filed a 
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timely court-ordered Pa.R.A.P. 1025(b) statement of errors complained of on 

appeal. On March 17, 2013 the PCRA court filed a Pa.R.A.P. 1925(a) 

opinion. 

On appeal, Appellant raises the following issue for our review: 

Whether the PCRA court erred by dismissing the petition

without a hearing because one of the issues raised, 

namely, the constitutionality of sentencing juvenile to life 

without the possibility of parole under Article I, Section 13 

of the Pennsylvania Constitution, was of merit and requires 

factual development and/or credibility determinations to be 

properly adjudicated? 

Appellant’s Brief at 4.2

Before examining the merits of Appellant’s claims, we consider 

whether the PCRA court had jurisdiction to entertain the underlying PCRA 

 

2

 We note in Commonwealth v. Seskey, 86 A.3d 237 (Pa. Super. 2014), 

the appellant argued 

that his life sentence, which was imposed upon him when

he was a juvenile, violates his right to be free from cruel 

and unusual punishment. It is well-established that such a 

claim constitutes a nonwaivable challenge to the legality of 

the sentence. . . . 

However, the fact that these claims are not waived 

does not mean that we have jurisdiction to review them. 

Waiver and jurisdiction are separate matters. “Though not 

technically waivable, a legality [of sentence] claim may 

nevertheless be lost should it be raised for the first time in 

an untimely PCRA petition for which no time-bar exception 

applies, thus depriving the court of jurisdiction over the 

claim.” 

Id. at 241 (citations omitted). 
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petition. On appellate review of a PCRA ruling, “we determine whether the 

PCRA court’s ruling is supported by the record and free of legal error.” 

Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008) (citation 

omitted). 

We . . . turn to the time limits imposed by the PCRA,

as they implicate our jurisdiction to address any and all of 

Appellant’s claims. To be timely, a PCRA petition must be 

filed within one year of the date that the petitioner’s 

judgment of sentence became final, unless the petition 

alleges and the petitioner proves one or more of the 

following statutory exceptions: 

(i) the failure to raise the claim previously 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). 

We emphasize that it is the petitioner who bears the 

burden to allege and prove that one of the timeliness 

exceptions applies. In addition, a petition invoking any of 

the timeliness exceptions must be filed within 60 days of 

the date the claim first could have been presented. 42 

Pa.C.S. § 9545(b)(2). . . . 

Id. at 719-20 (some citations omitted) (emphasis added). 

Our Supreme Court has stated: 
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This Court has repeatedly stated that the PCRA timeliness 

requirements are jurisdictional in nature and, accordingly, 

a PCRA court cannot hear untimely PCRA petitions. In 

addition, we have noted that the PCRA confers no 

authority upon this Court to fashion ad hoc equitable 

exceptions to the PCRA time-bar in addition to those

exceptions expressly delineated in the Act. We have also 

recognized that the PCRA’s time restriction is 

constitutionally valid. 

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations 

and quotation marks omitted). 

 In the instant case, Appellant was sentenced on November 20, 2001. 

This Court affirmed his judgment of sentence on November 12, 2002. On 

June 26, 2003, our Supreme Court denied Appellant’s petition for allowance 

of appeal. Appellant’s judgment of sentence became final on September 24, 

2003, ninety days after the Pennsylvania Supreme Court denied his petition 

for allowance of appeal. See 42 Pa.C.S. § 9545(b)(3) (providing “a 

judgment 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[ ]”); U.S.Sup.Ct.R. 13 (providing, “[A] petition for a writ of certiorari

seeking review of a judgment of a lower state court that is subject to 

discretionary review by the state court of last resort is timely when it is filed 

with the Clerk within 90 days after entry of the order denying discretionary 
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review[ ]”). Appellant thus had until September 25, 20043 to file a PCRA 

petition. See 42 Pa.C.S. § 9545(b)(1) (providing that PCRA petition must be 

filed within one year of date judgment becomes final). Appellant filed the 

instant petition on August 1, 2012; therefore, it is patently untimely. Thus, 

we review whether his petition alleges and proves, as Appellant contends, 

the exception at Section 9545(b)(1)(iii). See 42 Pa.C.S. § 9545(b)(1)(iii); 

Robinson, 837 A.2d at 1161. 

 Appellant avers that his PCRA petition was timely filed on August 1, 

2012, because it was filed within sixty days of the United States Supreme 

Court’s decision in Miller. Appellant’s Brief at 6.

In Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), cert. 

den., ___ S. Ct. ___, 2014 WL 797250 (Jun. 9, 2014), our Supreme Court 

held that Miller was not retroactive and opined: 

Here, applying settled principles of appellate review, 

nothing in [the a]ppellant’s arguments persuades us that 

Miller’s proscription of the imposition of mandatory lifewithout-parole sentences upon offenders under the age of 

eighteen at the time their crimes were committed must be 

extended to those whose judgments of sentence were final

as of the time of Miller’s announcement. 

Id. at 11. 

 The PCRA court reasoned that “[g]iven the Supreme Court of 

Pennsylvania decision in Commonwealth v. Cunningham, this Court must 

 

3

 September 24, 2004 fell on a Sunday. Therefore, Appellant had until 

September 25, 2004 to file his PCRA petition. See 1 Pa.C.S. § 1908. 
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issue the following ruling. [Appellant’s PCRA] petition is denied.” PCRA Ct. 

Op., 11/4/13, at 2. We agree. 

 Our Pennsylvania Supreme Court specifically held that Miller did not 

apply retroactively. See Cunningham, 81 A.3d at 11. Therefore, the 

Section 9545(b)(1)(iii) exception to the PCRA’s time restrictions is 

unavailing. Thus, the PCRA court lacked jurisdiction to consider Appellant’s 

claims. See Robinson, 837 A.2d at 1161. The PCRA court’s ruling is free 

of legal error. See Marshall, 947 A.2d at 719. 

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 7/29/2014