Com. v. Ramzee, M.

Opinion

J-S27012-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : MYLES RAMZEE : : Appellant : No. 3224 EDA 2016

Appeal from the PCRA Order September 15, 2016 In the Court of Common Pleas of Carbon County Criminal Division at No(s): CP-13-CR-0000047-1998

BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*

JUDGMENT ORDER BY GANTMAN, P.J.: FILED MAY 02, 2017

Appellant, Myles Ramzee, appeals from the order of the Carbon County

Court of Common Pleas, which dismissed as untimely his serial petition filed

under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-

9546. On March 19, 1999, a jury convicted Appellant of first-degree

murder, robbery, aggravated assault, and conspiracy. The court sentenced

Appellant on May 17, 1999, to life imprisonment without the possibility of

parole for the murder conviction plus a consecutive term of 12½ to 25 years’

imprisonment. This Court affirmed the judgment of sentence on April 19,

2000, and our Supreme Court denied allowance of appeal on November 14,

2000. See Commonwealth v. Ramzee, 758 A.2d 724 (Pa.Super. 2000),

appeal denied, 568 Pa. 659, 795 A.2d 974 (2000). Appellant sought no

_____________________________

*Retired Senior Judge assigned to the Superior Court. J-S27012-17

further review. From 2001 to 2012, Appellant filed numerous unsuccessful

petitions for collateral relief.

Appellant filed the current pro se PCRA petition on March 23, 2016,

seeking relief under Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183

L.Ed.2d 407 (2012) and Montgomery v. Louisiana, ___ U.S. ___, 136

S.Ct. 718, 193 L.Ed.2d 599 (2016). The court appointed counsel, who filed

a motion to withdraw and Turner/Finley1 no-merit letter on July 18, 2016.

The court issued Pa.R.Crim.P. 907 notice on July 27, 2016. Appellant

responded pro se on August 3, 2016, and for the first time, raised Alleyne

v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).

On September 15, 2016, the court denied PCRA relief and allowed counsel to

withdraw. Appellant timely filed a pro se notice of appeal on October 5,

2016. On October 17, 2016, the court ordered Appellant to file a concise

statement per Pa.R.A.P. 1925(b); Appellant did not comply.2

The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA

petition, including a second or subsequent petition, shall be filed within one

____________________________________________

1 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). 2 We observe Appellant is proceeding pro se on appeal but failed to file a court-ordered Rule 1925(b) statement. See Commonwealth v. Castillo, 585 Pa. 395, 403, 888 A.2d 775, 780 (2005) (deeming issues waived per Rule 1925(b)).

-2- J-S27012-17

year of the date the underlying judgment of sentence becomes final. 42

Pa.C.S.A. § 9545(b)(1). A judgment of sentence is deemed final “at the

conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the 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; a petitioner

asserting a timeliness exception must file a petition within 60 days of when

the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(1-2).

Instantly, Appellant’s judgment of sentence became final on or about

February 12, 2001, following the 90-days for filing a petition for certiorari

with the United States Supreme Court. See U.S.Sup.Ct. Rule 13. Appellant

filed the current pro se PCRA petition on March 23, 2016, more than 15

years after his judgment of sentence became final, which is patently

untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant attempts to invoke the

“new constitutional right” exception per Section 9545(b)(1)(iii), insisting

Miller/Montgomery afford him relief. Nevertheless, Appellant admits he

was 23 years old at the time of his offenses. Thus, Miller/Montgomery

relief does not apply to Appellant. Moreover, this Court has rejected

Appellant’s argument that Miller/Montgomery relief should be extended to

those under 25 years old because the brain is not developed fully until that

age. See Commonwealth v. Furgess, 149 A.3d 90 (Pa.Super. 2016)

-3- J-S27012-17

(holding 19-year-old appellant was not entitled to relief under

Miller/Montgomery on collateral review; rejecting argument that he

should be considered “technical juvenile”). Likewise, Alleyne law affords

Appellant no relief. See Commonwealth v. Washington, ___ Pa. ___,

142 A.3d 810 (2016) (holding new constitutional rule announced in Alleyne

is not substantive or watershed procedural rule that warrants retroactive

application to collateral attacks on mandatory minimum sentences where

judgment of sentence became final before Alleyne was decided).3 Thus,

Appellant’s current petition remains untimely. Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/2/2017

3 Appellant also did not satisfy the 60-day rule regarding his Alleyne issue. See 42 Pa.C.S.A. § 9545(b)(2).

-4-