Appeal from the PCRA Order January 9, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0015444-1996
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and OTT, J.
John Lane appeals, pro se, from the order entered January 9, 2013, in the Allegheny County Court of Common Pleas denying him relief on his fifth petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. Lane seeks relief from the judgment of sentence of an aggregate 19 to 38 years' imprisonment imposed on April 9, 2001, following his jury conviction of aggravated assault, robbery and conspiracy. On appeal, Lane argues that the decision in Miller v. Alabama, __U.S.__, 132 S.Ct. 2455 (2012), requires this Court to vacate his sentence and remand for resentencing. For the reasons set forth below, we affirm.
The facts underlying Lane's arrest and conviction are summarized in the memorandum decision of this Court affirming the denial of his first PCRA petition, and we need not reiterate them herein. See Commonwealth v. Lane, 890 A.2d 1101 (Pa.Super. 2005) (unpublished memorandum at 1-4), appeal denied, 906 A.2d 1196 (Pa. 2006). Suffice it to say that on November 26, 1996, Lane and an accomplice beat and robbed one of their high school teachers in his classroom. Lane was 16 years old at the time he committed the offense. He proceeded to a jury trial and, on December 17, 1997, was convicted of one count each of aggravated assault and robbery, and two counts of conspiracy (murder and robbery). The jury acquitted him of the crime of attempted murder. He was originally sentenced on January 27, 1998 to an aggregate term of imprisonment of 20 to 40 years' incarceration. However, following a successful direct appeal, in part, he was resentenced on April 9, 2001, to a term of 19 to 38 years' imprisonment.
Lane's first PCRA petition was denied by the PCRA court on May 5, 2004, and the order denying relief was affirmed by this Court on September 21, 2005. Lane, supra. He filed a second PCRA petition on April 18, 2007, which, again, was denied by the PCRA court on April 11, 2008. This Court affirmed the order denying relief on July 15, 2009. Commonwealth v. Lane, 981 A.2d 925 [774 WDA 2008] (Pa.Super. 2009) (unpublished memorandum). While that appeal was pending, Lane filed a third PCRA petition on December 2, 2008, which the PCRA court promptly dismissed for lack of jurisdiction.
On April 1, 2010, Lane filed a Motion for Postconviction DNA testing pursuant to 42 Pa.C.S. § 9543.1, his fourth petition for collateral relief. The PCRA court denied the motion and Lane's appeal to this Court was dismissed when he failed to file a docketing statement. See Pa.R.A.P. 3517.
Finally, on August 20, 2012, Lane filed the instant PCRA petition, his fifth, contending that the decision of the United States Supreme Court in Miller v. Alabama, supra, created a new constitutional right under the Eight Amendment that required the PCRA court to vacate his sentence and resentence him pursuant to the dictates of Miller. On September 13, 2012, the PCRA court issued notice, pursuant to Pa.R.Crim.P. 907, of its intention to dismiss the petition without first conducting an evidentiary hearing. Although Lane filed a pro se response to the court's Rule 907 notice, on January 9, 2013, the PCRA court entered an order dismissing Lane's fifth PCRA petition as untimely filed. This appeal followed.
Lane concedes that his PCRA petition was untimely filed. We note that the timeliness requirements are jurisdictional in nature, and that we may not consider the substantive merits of an untimely appeal unless the petitioner pleads and proves an exception to the time bar. See Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (citations omitted); 42 Pa.C.S. § 9545(b)(1). Here, Lane argues that the Miller decision "announce[d] a new Eighth Amendment right to the individualized mitigation of sentences" with respect to juvenile defendants. Lane's Brief at 1. Therefore, he contends his petition meets the newly recognized constitutional right exception to the time-bar.
Pursuant to 42 Pa.C.S. § 9545, an otherwise untimely petition is not time-barred if a petitioner can plead and prove that, inter alia,
the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.
42 Pa.C.S. § 9545(b)(1)(iii). Further, any petition invoking this exception must be filed "within 60 days of the date the claim could have been presented." Id. at § 9545(b)(2).
Lane filed his present petition on August 20, 2012, less than 60 days after the Miller decision was filed on June 25, 2012. Therefore, we must determine whether the United States Supreme Court in Miller recognized a new constitutional right, and held that the decision should apply retroactively. See Commonwealth v. Garcia, 23 A.3d 1059, 1063 (Pa.Super. 2011) (To obtain relief pursuant to Section 9545(b)(1)(iii), "a petitioner must prove that there is a 'new' constitutional right and that the ...