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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
SHAWN FREEMORE, :
:
Appellant : No. 3611 EDA 2017
Appeal from the PCRA Order October 12, 2017
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000258-2009
BEFORE: GANTMAN, P.J., OLSON, J., and STEVENS*, P.J.E.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED AUGUST 03, 2018
Appellant, Shawn Freemore, appeals pro se from the order entered in
the Franklin County Court of Common Pleas, which dismissed as untimely his
second petition filed under the Post Conviction Relief Act (“PCRA”) at 42
Pa.C.S.A. §§ 9541-9546. On February 3, 2009, Appellant fatally stabbed
Victim, when Appellant was 19 years old. On September 21, 2011, a jury
convicted Appellant of first-degree murder, conspiracy to commit murder, and
tampering with and/or fabricating physical evidence. The court sentenced
Appellant on December 12, 2011, to life imprisonment without the opportunity
of parole (“LWOP”). This Court affirmed on July 23, 2013, and our Supreme
Court denied allowance of appeal on September 2, 2014. See
Commonwealth v. Freemore, 82 A.2d 1074 (Pa.Super. 2013) (unpublished
memorandum), appeal denied, 626 Pa. 704, 99 A.3d 76 (2014). Appellant
____________________________________
* Former Justice specially assigned to the Superior Court.
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sought no further direct review, so the judgment of sentence became final on
December 1, 2014. Appellant timely filed his first pro se PCRA petition on
April 22, 2015; the PCRA court appointed counsel and later denied relief on
September 11, 2015. This Court affirmed on August 3, 2016, and our
Supreme Court denied allowance of appeal on February 15, 2017. See
Commonwealth v. Freemore, 156 A.3d 327 (Pa.Super. 2016) (unpublished
memorandum), appeal denied, ___ Pa. ___, 166 A.3d 1226 (2017).
Appellant filed his second, current pro se PCRA petition on August 25,
2017. On August 30, 2017, the PCRA court issued Rule 907 notice; Appellant
filed a pro se response on September 13, 2017. The PCRA court dismissed
Appellant’s petition on October 13, 2017. Appellant timely filed a pro se notice
of appeal on November 8, 2017, and a court-ordered Rule 1925(b) statement
on November 29, 2017.
The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA petition
must be filed within one year of the date the underlying judgment becomes
final. 42 Pa.C.S.A § 9545(b)(1). A judgment is deemed final at the conclusion
of direct review or at the expiration of time for seeking review. 42 Pa.C.S.A.
§ 9545(b)(3). The statutory exceptions to the PCRA time-bar allow for very
limited circumstances which excuse the late filing of a petition and are also
subject to a separate 60-day deadline. 42 Pa.C.S.A. § 9545(b)(1-2). To
assert the newly-created-constitutional-right exception under Section
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9545(b)(1)(iii), “a petitioner must prove that there is a new constitutional
right and that the right has been held by that court to apply retroactively.”
Commonwealth v. Chambers, 35 A.3d 34, 41 (Pa.Super. 2011), appeal
denied, 616 Pa. 625, 46 A.3d 715 (2012).
Instantly, the judgment of sentence became final on December 1, 2014,
upon expiration of the time to file a petition for writ of certiorari in the United
States Supreme Court. See U.S.Sup.Ct.R. 13. Appellant filed the current pro
se PCRA petition on August 25, 2017, which is patently untimely. See 42
Pa.C.S.A. § 9545(b)(1). Appellant attempts to invoke the “new constitutional
right” exception by citing three decisions: Miller v. Alabama, 567 U.S. 460,
132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (ruling unconstitutional mandatory
life without possibility of parole (“LWOP”) sentences for juvenile offenders);
Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718, 193 L.Ed.2d 599
(filed January 25, 2016, and revised on January 27, 2016) (holding Miller
applies retroactively to cases on collateral review); and Commonwealth v.
Batts, ___ Pa. ___, 163 A.3d 410 (2017) (“Batts II”) (providing rebuttable
presumption exists against sentencing juveniles to LWOP and explaining
Commonwealth can rebut presumption if it proves beyond reasonable doubt
that juvenile defendant cannot be rehabilitated). Appellant, however, was 19
years old at the time of his offenses. Consequently, he cannot assert
Montgomery/Miller as an exception to the PCRA timeliness requirement to
obtain resentencing under Batts II. Thus, Appellant’s petition remains time-
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barred, and the PCRA court lacked jurisdiction to review it. See Zeigler,
supra. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/3/18
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