NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

Transcription

1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA v. MICHAEL P. MINERD, No WDA 2012 Appellant Appeal from the PCRA Order, November 13, 2012, in the Court of Common Pleas of Westmoreland County Criminal Division at No. CP-65-CR BEFORE FORD ELLIOTT, P.J.E., WECHT AND STRASSBURGER,* JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E. FILED November 15, 2013 Appellant appeals from the order denying relief on appellant s fourth petition brought pursuant to the Post Conviction Relief Act ( PCRA ), 42 Pa.C.S.A Finding no error, we affirm. On May 10, 1996, a jury found appellant guilty of first degree murder and a related firearms offense in connection with the shooting death of his paramour s estranged husband in Smithton on January 11, Immediately following the verdict, appellant was sentenced to life imprisonment. On May 23, 1997, this court affirmed the judgment of sentence; on March 6, 1998, our supreme court denied allowance of appeal; and on October 5, 1998, the United States Supreme Court denied certiorari. Commonwealth v. Minerd, 698 A.2d 1347 (Pa.Super. 1997) * Retired Senior Judge assigned to the Superior Court

2 (unpublished memorandum), appeal denied, 552 Pa. 694, 716 A.2d 1248 (1998), cert. denied, Minerd v. Pennsylvania, 525 U.S. 844 (1998). On October 4, 1999, with the assistance of counsel, appellant filed his first PCRA petition. A hearing was held on November 24, 1999, and the petition was denied February 2, On June 5, 2001, this court affirmed the decision, and on February 1, 2002, our supreme court denied appeal. Commonwealth v. Minerd, 779 A.2d 1220 (Pa.Super. 2001) (unpublished memorandum), appeal denied, 568 Pa. 681, 796 A.2d 315 (2002). On June 28, 2002, appellant filed his second PCRA petition pro se, and requested the appointment of counsel. On July 11, 2002, the court entered notice, pursuant to Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A., of its intention to dismiss the petition without hearing. On August 13, 2002, the court denied appellant s PCRA petition and his request for appointment of counsel. On August 14, 2003, this court affirmed the decision; and on March 17, 2004, our supreme court denied appeal. Commonwealth v. Minerd, 833 A.2d 1148 (Pa.Super. 2003) (unpublished memorandum), appeal denied, 577 Pa. 714, 847 A.2d 1282 (2004). On December 8, 2008, appellant filed his third PCRA petition pro se. On December 10, 2008, the court issued Rule 907 notice; and on December 29, 2008, appellant filed a response. On January 8, 2009, the court denied the petition; and on November 13, 2009, this court affirmed the decision

3 Commonwealth v. Minerd, 988 A.2d 725 (Pa.Super. 2009) (unpublished memorandum). On August 20, 2012, appellant filed the instant PCRA petition pro se, his fourth. The court issued Rule 907 notice on October 24, 2012; appellant responded on November 9, 2012; and on November 13, 2012, the court denied the petition. Appellant now brings this timely appeal. Our standard of review for an order denying post-conviction relief is whether the record supports the PCRA court s determination, and whether the PCRA court s determination is free of legal error. Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court s findings will not be disturbed unless there is no support for the findings in the certified record. Id. A PCRA petition must be filed within one year of the date that the judgment of sentence becomes final. 42 Pa.C.S.A. 9545(b)(1). This time requirement is mandatory and jurisdictional in nature, and the court may not ignore it in order to reach the merits of the petition. Commonwealth v. Taylor, 933 A.2d 1035, 1038 (Pa.Super. 2007), appeal denied, 597 Pa. 715, 951 A.2d 1163 (2008). Appellant s judgment of sentence became final on October 5, 1998, when the United States Supreme Court denied certiorari following his direct appeal. The instant petition, filed August 20, 2012, is manifestly untimely - 3 -

4 and cannot be reviewed unless appellant invokes a valid exception to the time bar of the PCRA. See 42 Pa.C.S.A. 9545(b)(1)(i-iii). Appellant has invoked the after-recognized constitutional right exception, 42 Pa.C.S.A. 9545(b)(1)(iii), predicated on the United States Supreme Court s June 25, 2012 decision in Miller v. Alabama, 132 S.Ct (2012). Essentially, Miller held that mandatory life imprisonment 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 punishment. The problem for appellant is, as he admits in his PCRA petition, he was 26 years old at the time he committed this murder. (PCRA petition, 8/20/12 at page 4, paragraph 11.) In order to avoid this unfortunate and disqualifying factor, appellant attempts to fabricate some absurd equal protection construct whereby those persons who were over the age of 18 at the time of their crimes may also benefit from the considerations of Miller. We find appellant s argument to be specious. The United States Supreme Court clearly limited the application of Miller to persons under the age of 18. Miller, 132 S.Ct. at Appellant cannot invoke this exception based upon Miller. Accordingly, having found no merit to the issues on appeal, we will affirm the order of the PCRA court. Order affirmed

5 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date 11/15/