Com. v. Mayo, M.

• Court: Superior Court of Pennsylvania
• Decided: May 6, 2019
• Docket: 3369 EDA 2018
• Status: Unpublished

Opinion

J-S24014-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL MAYO : : Appellant : No. 3369 EDA 2018

Appeal from the PCRA Order Entered November 6, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0738801-1990

BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

JUDGMENT ORDER BY LAZARUS, J.: FILED MAY 06, 2019

Michael Mayo appeals from the order, entered in the Court of Common

Pleas of Philadelphia County, dismissing as untimely his petition filed under

the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

On March 19, 1990, Mayo, in concert with others, shot and killed an

employee during the robbery of a jewelry store in Philadelphia. Mayo entered

a plea of guilty, but mentally ill, to first-degree murder, robbery, and

possessing instruments of crime. On October 16, 1992, the trial court

sentenced him to a term of life imprisonment for murder, plus a consecutive

aggregate term of 25 to 50 years’ incarceration on the other convictions. At

the time of his crimes, Mayo was 22 years old. Mayo filed no direct appeal

and his judgment of sentence became final on November 16, 1992.

Mayo filed the instant PCRA petition on August 23, 2012, nearly 20 years

after his judgment of sentence became final. Mayo claimed the United States

____________________________________ * Former Justice specially assigned to the Superior Court. J-S24014-19

Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012), should

be extended to defendants who were between the ages of 18 and 25 at the

time of their crimes, and that Miller should be applied in his case on Eighth

Amendment and equal protection grounds. In Miller, the Supreme Court

recognized a constitutional right for individuals under the age of 18, holding

that “mandatory life without parole for those under the age of 18 at the time

of their crimes violates the Eighth Amendment’s prohibition against ‘cruel and

unusual punishments.’” Miller, 567 U.S. at 465. In Montgomery v.

Louisiana, 136 S. Ct. 718 (2016), the Court made its holding in Miller

retroactive.

On August 17, 2018, the PCRA court issued notice of its intent to dismiss

Mayo’s petition as untimely filed. Mayo filed no response and, on November

6, 2018, the PCRA court dismissed Mayo’s petition. Mayo timely filed the

instant appeal.

Recently, this Court has rejected the claims raised by Mayo. See

Commonwealth v. Lee, 219 PA Super 64 (Pa. Super. 2019) (en banc)

(holding defendant, who was over age 18 at the time of her offense, could not

invoke Miller to overcome the PCRA time-bar); see also Commonwealth v.

Montgomery, 181 A.3d 359, 366 (Pa. Super. 2018) (en banc) (“Neither the

Supreme Court of the United States nor our Supreme Court has held that

Miller announced a new rule under the Equal Protection Clause.”).

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The PCRA court, therefore, properly rejected Mayo’s effort to extend

Miller to satisfy the new constitutional rule exception to the PCRA time-bar.

42 Pa.C.S.A. § 9545(b)(1)(iii). We find no error.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/6/19

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