Com. v. Zanders, V. ( 2017 )

J-S67041-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
VICTOR ZANDERS :
:
Appellant : No. 2890 EDA 2016
Appeal from the PCRA Order August 9, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0409031-1995
BEFORE: GANTMAN, P.J., MUSMANNO, J., and STEVENS*, P.J.E.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED OCTOBER 19, 2017
Appellant, Victor Zanders, appeals pro se from the order entered in the
Philadelphia 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 March 15, 1996, a jury convicted Appellant of
second-degree murder, robbery, conspiracy, aggravated assault, and
possessing instruments of crime. The court sentenced Appellant on July 15,
1996, to life imprisonment for the murder conviction and imposed
concurrent sentences for some of the other offenses. This Court affirmed
the judgment of sentence on June 11, 1998, and our Supreme Court denied
allowance of appeal on March 9, 2000. See Commonwealth v. Zanders,
723 A.2d 239 (Pa.Super. 1998), appeal denied, 562 Pa. 670, 753 A.2d 818(2000).
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S67041-17
On May 7, 2001, Appellant timely filed a pro se PCRA petition. The
court appointed counsel on February 22, 2002, who subsequently filed a
motion to withdraw and “no-merit” letter per Commonwealth v. Turner,
518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550
A.2d 213 (Pa.Super. 1988) (en banc). The court issued appropriate notice
per Pa.R.Crim.P. 907 on March 21, 2003, and denied PCRA relief on April 16,
2003. Appellant did not appeal that decision.
Appellant filed the current pro se PCRA petition on July 23, 2012,
claiming relief under Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183
L.Ed.2d 407 (2012) (holding sentence of mandatory life imprisonment
without possibility of parole, for those under age of 18 at time of their
crimes, violates Eighth Amendment’s prohibition on cruel and unusual
punishments). On October 12, 2012, Appellant filed a motion to stay the
proceedings pending a decision on whether Miller applies retroactively to
cases on collateral review.1 Appellant amended his petition on May 19,
2016, relying on Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718,
193 L.Ed.2d 599 (2016) (holding Miller applies retroactively to cases on
state collateral review). The court issued Rule 907 notice on June 7, 2016,
and dismissed the petition as untimely on August 9, 2016. Appellant timely
filed a pro se notice of appeal on August 31, 2016. No Pa.R.A.P. 1925(b)
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1 The record shows the court held the petition in abeyance.
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statement was ordered or filed.
Preliminarily, 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 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 under which the late filing of a petition will be excused; 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 June 7,
2000, upon expiration of the time for filing a petition for writ of certiorari
with the U.S. Supreme Court. See U.S.Sup.Ct.R. 13. Appellant filed the
current PCRA petition on July 23, 2012, which is patently untimely. See 42
Pa.C.S.A. § 9545(b)(1). On appeal, Appellant attempts to invoke the “new
constitutional right” exception to the statutory time-bar per Section
9545(b)(1)(iii), claiming he is entitled to relief under Miller and
Montgomery. Nevertheless, Appellant admits he was 20 years old at the
time of the offenses at issue. Thus, Miller and Montgomery do not apply.
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This Court has previously rejected the argument that relief under Miller and
Montgomery should be extended to individuals 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) (holding appellant who was 19
years old at time of offenses was not entitled to relief under Miller and
Montgomery on collateral review; rejecting “technical juvenile” argument).
Therefore, the court properly dismissed Appellant’s petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2017
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