Com. v. Mayo, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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