J-S07037-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
WAYNE CURTIS KELLY, :
:
Appellant : No. 1480 MDA 2016
Appeal from the PCRA Order August 18, 2016
in the Court of Common Pleas of Berks County,
Criminal Division, No(s): CP-06-CR-0005141-2001
BEFORE: BOWES, LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 13, 2017
Wayne Curtis Kelly (“Kelly”), pro se, appeals from the Order dismissing
his second Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.
In 2003, a jury convicted Kelly of murder of the second degree,
criminal conspiracy, possessing an instrument of crime and robbery, for his
participation in an armed robbery at a convenience store that resulted in the
death of the store clerk. Relevant to the instant appeal, Kelly was twenty-
three years of age at the time of the crime. The trial court sentenced Kelly,
in relevant part, to life in prison for the murder conviction, applying the
mandatory life sentence found in 18 Pa.C.S.A. § 1102(b).
This Court affirmed the judgment of sentence, after which the
Supreme Court of Pennsylvania denied allowance of appeal. See
J-S07037-17
Commonwealth v. Kelly, 850 A.2d 10 (Pa. Super. 2004) (unpublished
memorandum), appeal denied, 863 A.2d 1144 (Pa. 2004).
Kelly filed his first PCRA Petition in August 2010, which the PCRA court
dismissed as being untimely filed. This Court affirmed the dismissal. See
Commonwealth v. Kelly, 100 A.3d 323 (Pa. Super. 2014) (unpublished
memorandum). Kelly did not seek allowance of appeal.
On March 28, 2016, Kelly filed the instant pro se PCRA Petition. The
PCRA court thereafter issued a Pennsylvania Rule of Criminal Procedure 907
Notice of Intent to Dismiss the Petition without an evidentiary hearing,
stating that the court lacked jurisdiction to address the Petition because it
was untimely filed. Kelly filed a pro se Response to the Rule 907 Notice. On
August 18, 2016, the PCRA court dismissed Kelly’s Petition, after which Kelly
filed a timely pro se Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b)
Concise Statement of errors complained of on appeal.
On appeal, Kelly presents the following questions for our review:
I. Did the [PCRA] court err in denying [Kelly’s] equal protection
claim since [Kelly] was an adolescent[,] age 2[3,] at the time of
the crime[,] and whether the automatic mandatory life
sentence[,] imposed [upon Kelly] without a mitigating hearing[,]
unconstitutionally subjects [Kelly] to cruel and unusual
punishment[,] in violation of the Eighth Amendment to the
United States Constitution?
II. Did the [PCRA] court err in dismissing [Kelly’s] claims of
entitlement to equal protection from prohibition against cruel
and unusual punishment[,] in light of a [United States] Supreme
Court substantive holding, as being time-barred for failure to
meet the statutory requirements of [the exception at] 42
Pa.C.S.A. § 9545(b)(1)(iii), [and] (2)?
-2-
J-S07037-17
Brief for Appellant at 3 (issues numbered, capitalization omitted). As Kelly’s
issues are related, we will address them simultaneously.
When reviewing an order dismissing a PCRA petition, we examine
whether the determination of the PCRA court is supported by the record and
free of legal error. Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.
Super. 2014). The merits of a PCRA petition cannot be addressed unless the
PCRA court has jurisdiction. Commonwealth v. Albrecht, 994 A.2d 1091,
1093 (Pa. 2010). Jurisdiction does not exist if the PCRA petition is untimely
filed. Id.
Any PCRA petition must be filed within one year of the date the
judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). Here, Kelly concedes
that his instant PCRA is facially untimely, as it was filed over ten years after
January 2005, when his judgment of sentence became final.
However, Pennsylvania courts may consider an untimely petition if the
appellant can explicitly plead and prove one of three exceptions set forth
under 42 Pa.C.S.A. § 9545(b)(1)(i)(iii). Any PCRA petition invoking one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.
Here, Kelly cites the United States Supreme Court’s decision in Miller
v. Alabama, 132 S. Ct. 2455 (2012), and invokes the newly-recognized
constitutional right exception at 42 Pa.C.S.A. § 9545(b)(1)(iii). Brief for
Appellant at 6-9. In Miller, the Court held that sentencing schemes that
-3-
J-S07037-17
mandate life in prison without parole for defendants who committed their
crimes while under the age of eighteen violate the Eighth Amendment’s
prohibition on “cruel and unusual punishments.” Miller, 132 S. Ct. at 2460.
The Court reasoned that in light of a juvenile’s diminished culpability and
heightened capacity for change, mandatory juvenile sentencing schemes
pose too great a risk of disproportionate punishment, in contravention of the
Eighth Amendment. Id. at 2469.1
Nevertheless, Kelly argues that the right espoused in Miller should
apply to him (and the lack of its application violates his right to equal
protection) because “neuroscience[-]based evidence in the Miller decision …
applies to ages ranging at least through 25-29.” Brief for Appellant at 13;
see also id. at 5 (citing a 2012 article in the Wall Street Journal, which
purportedly stated that “[t]he brain, once thought to be fully grown after
puberty, is still evolving into its adult shape well into a person’s third
decade[.]”).
This Court has already rejected this precise argument. Specifically, in
Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013), the co-
appellants, who were 19 and 21 years old, respectively, at the time of their
crimes (for which they received sentences of life in prison), argued that
Miller applied to them because the human brain does not fully develop until
1
In Montgomery v. Louisiana, 136 S. Ct. 718 (2016), the United States
Supreme Court held that its decision in Miller applies retroactively. Id. at
736.
-4-
J-S07037-17
the age of 25, and because “it would be a violation of equal protection for
the courts to treat [the co-appellants,] or anyone else with immature brains,
as adults.” Id. at 764. This Court rejected these claims, emphasizing that
the co-appellants’ “contention that a newly-recognized constitutional right
should be extended to others does not render their petition timely pursuant
to section 9545(b)(1)(iii).” Id. (emphasis in original); see also
Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016)
(reaffirming Cintora’s holding).
Accordingly, based on Cintora and Furgess, the rule announced in
Miller does not apply to Kelly, who was twenty-three years old at the time
of the murder.2 Accordingly, Kelly has failed to establish the exception of
section 9545(b)(1)(iii) to overcome the untimeliness of his second PCRA
Petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2017
2
Moreover, Kelly failed to file his Petition invoking Miller within 60 days of
June 25, 2012, the date of that decision. See 42 Pa.C.S.A. § 9545(b)(2);
Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa. Super. 2007) (stating
that the 60-day period begins to run upon the date of the underlying judicial
decision).
-5-