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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37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. :
:
LARRY STEPHENSON, :
:
Appellant : 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 filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. 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 murder. On April 25,
1975, Appellant was sentenced to life imprisonment without 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 pursuant to Pa.R.Crim.P.
907. Appellant responded, and the petition was dismissed by order of
February 4, 2014.
*Retired Senior Judge assigned to the Superior Court.
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Appellant timely filed a notice of appeal. Both Appellant and the PCRA
court complied with Pa.R.A.P. 1925. Appellant presents three questions to
this Court on appeal.
I. Did the [PCRA] court err in not granting a resentencing
mandatory life-without-parole terms for adults in non-
homicide and homicide cases violate state and federal
equal protection clauses, as well as Art. 7 of the Universal
Declaration of Human Rights?
II. Did the [PCRA] court err in not granting a resentencing
mandatory life-without-parole terms for individuals over
age 17 but below age 25 violates the United States
C
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 resentencing
er whether a
-
age changes the possible punishment for first/second
degree murder?
ard of
review.
On appeal from the denial of PCRA relief, our standard of review
calls for us to determine whether the ruling of the PCRA 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 court's factual
determinations are entitled to deference, but its legal
determinations are subject to our plenary review.
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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 jurisdictional.
Commonwealth v. Robinson, 12 A.3d 477, 479 (Pa. Super. 2011).
Generally, a petition for relief under the PCRA, including 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
untimely: his judgment of sentence became final in 1998.1 Appellant alleges
that his petition is timely based upon the United States Supreme Cour
holding in Miller v. Alabama, 132 S.Ct. 2455 (2013). Presumably,
Appellant is asserting that the Miller decision satisfies the following
recognized by the Supreme Court of the United States or the Supreme Court
1
became final on January 5, 1998, when the 90 day period expired in which
Appellant had to file a writ of certiorari to the United States Supreme Court
after our Supreme Court affirmed his judgment of sentence.
Commonwealth v. Stephenson, 764 A.2d 1129 (Pa. Super. 2000)
(unpublished memorandum at 5).
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of Pennsylvania after the time period provided in this section and has been
9545(b)(iii).
petition. First, the holding of Miller
sentencing scheme that mandates life in prison without possibility of parole
for juvenile Miller, 132 S.Ct. at 2469 (emphasis added).
Appellant was not a juvenile at the time this incident occurred.
Furthermore, in Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013),
cert. denied, 134 S.Ct. 2724 (2014), our Supreme Court held that the United
Miller does not apply retroactively. Thus,
even if Appellant were a juvenile at the time of the murder, Miller would not
entitle him to relief.2
Because Appellant did not plead facts that would establish an
dismissed Ap
Order affirmed.
2
Because Appellant untimely filed his petition, we need not address his third
issue, where App -
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2014
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