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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LEWIS JERRY HARE
Appellant No. 792 MDA 2016
Appeal from the PCRA Order April 22, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0000709-1974
BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.
JUDGMENT ORDER BY LAZARUS, J.: FILED NOVEMBER 30, 2016
Lewis Jerry Hare appeals, pro se, from the trial court’s order
dismissing his untimely third petition filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.
In 1979, Hare was convicted, after a jury trial, of first-degree murder.
The court sentenced Hare to life in prison without the possibility of parole.
Hare was 19 years old at the time he committed the offenses.
On appeal, Hare contends that his mandatory sentence of life without
parole is unconstitutional under the Eighth Amendment to the United States
Constitution and Article I, § 13 of the Pennsylvania Constitution as
expressed in Miller v. Alabama, 132 S. Ct. 2455 (2012). In Miller, the
United States Supreme Court held that sentencing a juvenile convicted of a
homicide offense to mandatory life imprisonment without parole violates the
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Eighth Amendment’s prohibition on cruel and unusual punishment. Id. at
2464. Accordingly, such sentences cannot be imposed unless a judge or
jury first considers mitigating circumstances. Id. at 2475. The holding in
Miller, however, was limited to those offenders who were under the age of
18 at the time they committed their crimes. Id. at 2460.
Subsequently, in Montgomery v. Louisiana, 136 S. Ct. 718 (2016),
the Supreme Court held that “Miller announced a substantive rule of
constitutional law,” id. at 736, and that “Miller is retroactive because ‘it
necessarily carr[ies] a significant risk that a defendant’ . . . faces a
punishment that the law cannot impose upon him.” Id. at 734. Therefore,
under Montgomery, Miller is to be applied retroactively to cases on state
collateral review through the PCRA’s retroactivity exception, 42 Pa.C.S. §
9545(b)(1)(iii). Montgomery, supra at 736.
Because Hare was 19 years old at the time he committed the
underlying offenses, the holdings in both Miller and Montgomery are
inapplicable and he is not entitled to relief.1 Van Horn, supra.
To the extent that Hare claims that he should benefit from the Miller
and Montgomery decisions because research indicates that “the human
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1
We note that on October 15, 2012, effective immediately, the Pennsylvania
Legislature amended 18 Pa.C.S.A. § 1102(a)(1) (first-degree murder) and
(b) (second-degree murder) to provide sentencing standards for juvenile
offenders convicted of first- and second-degree murder after June 24, 2012,
so as to comport with Miller.
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mind does not fully develop or mature until the age of 25[,]” Appellant’s
Brief, at 6, he is entitled to no relief. Rather than presenting an argument
that is within the scope of the Miller decision, Hare asks us to extend
Miller’s holding to persons convicted of murder who were over 18 at the
time of their crimes. We rejected this argument in Commonwealth v.
Furgess, 2016 PA Super 219 (Pa. Super. 2016). See id. (court failed to
extend Miller holding and apply PCRA’s newly-recognized constitutional right
exception to 19-year-old defendant convicted of homicide; defendant
claimed he was “technical juvenile” and relied on neuroscientific theories
regarding immature brain development to support claim). Neither federal
nor state case law deems a life sentence without parole unconstitutional for
individuals who may have had a diminished mental capacity when they
committed the offenses. See also Commonwealth v. Lesko, 15 A.3d 345,
408 n.31 (Pa. 2011) (noting U.S. Supreme Court has chosen “strictly
chronological, hard lines” in cases involving age as disqualifying
constitutional factor for eligibility of life without parole sentences; those over
defined-age get no benefit from constitutional decisions, irrespective of
subjective "psychological and emotional age and level of maturity.”).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2016
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