Com. v. Russell, S.

• Court: Superior Court of Pennsylvania
• Decided: August 7, 2017
• Docket: Com. v. Russell, S. No. 111 WDA 2017
• Status: Unpublished

Opinion

J-S49039-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA v.

STEPHEN JAMES RUSSELL

Appellant No. 111 WDA 2017

Appeal from the PCRA Order December 12, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0014840-1994, CP-02-CR-0016481-1994

BEFORE: DUBOW, SOLANO, and FITZGERALD,* J

MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 07, 2017

Appellant, Stephen James Russell, appeals from the order entered in

the Allegheny County Court of Common Pleas dismissing his Post Conviction

Relief Act1 (“PCRA”) petition as untimely. Appellant claims that his petition

was timely filed in light of Montgomery v. Louisiana, 136 S. Ct. 718

(2016), and Miller v. Alabama, 132 S. Ct. 2455 (2012). We affirm.

We adopt the facts and procedural history set forth by the PCRA

court’s opinion. See PCRA Ct. Op., 4/3/17, at 1-2. Appellant raises the

following issues for review:

I. Is [Appellant’s] PCRA petition timely filed?

* Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. J-S49039-17

II. Did [Appellant’s] mandatory sentence of life without parole, imposed for acts committed at the age of nineteen (19), violate the eighth amendment of the United States Constitution, as well as the equal protection clause of the fourteenth amendment to the U.S. Constitution and article 1, § 26 of the Pennsylvania constitution?

III. Did [Appellant’s] sentence violate the eighth amendment’s prohibition of mandatory life without parole for youthful offenders as Miller and Montgomery prohibit the mandatory imposition of life without parole sentences upon offenders who possess characteristics of youth that render them categorically less culpable under the eighth amendment?

IV. [Did Appellant’s] conviction for second-degree felony murder render him categorically less culpable and is he therefore entitled to relief under Miller and Montgomery?

V. Does Pennsylvania law that permits mandatory sentences of life without parole for crimes committed by 19-year olds lack a rational basis in light of Miller’s prohibition against such sentences for offenders aged 17 and younger in violation of the equal protection clauses of the Pennsylvania and U.S. Constitution?

VI. Have the issues raised herein been previously litigated nor waived?

VII. Have the issues raised herein met the Lawson standard for a second or subsequent PCRA petition?

Appellant’s Brief at 3.

Appellant argues that Miller and Montgomery provide him relief from

the PCRA time bar under 42 Pa.C.S. § 9545(b)(1)(iii). He specifically avers

that because he was 19 years old at the time the crimes in question

occurred, “he was experiencing the transitory phases of a developing

-2- J-S49039-17

adolescent and lacked the ability to assess consequences as outlined and

discussed in [Miller and Montgomery].” Appellant’s Brief at 10.

“Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and free of legal error.” Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).

As our Supreme Court has explained:

the PCRA timeliness requirements are jurisdictional in nature and, accordingly, a PCRA court is precluded from considering untimely PCRA petitions. We have also held that even where the PCRA court does not address the applicability of the PCRA timing mandate, th[e] Court will consider the issue sua sponte, as it is a threshold question implicating our subject matter jurisdiction and ability to grant the requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (citations

omitted).

After careful consideration of Appellant’s brief, the record, and the

decision of the PCRA court, we affirm on the basis of the PCRA court’s

opinion. See PCRA Ct. Op. at 2-4 (holding: Appellant’s current PCRA

petition, filed five years after his was judgment of sentence became final in

2003, was patently untimely; Appellant has not proven any of the timeliness

exceptions because Miller and Montgomery do not provide him relief from

the PCRA time bar under 42 Pa.C.S. § 9545(b)(1)(iii) where Appellant was

19 years old at the time of the commission of the crimes at issue; the PCRA

court lacks jurisdiction to address the merits of Appellant’s claims).

-3- J-S49039-17

Accordingly, we affirm the PCRA court’s dismissal of Appellant’s petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/7/2017

-4- Circulated 07/21/2017 03:52 PM