Com. v. richko, D. (judgment order)

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J-S82045-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DANIEL SCOTT PETRICHKO, Appellant No. 837 MDA 2016 Appeal from the PCRA Order May 4, 2016 in the Court of Common Pleas of Schuylkill County Criminal Division at No.: CP-54-CR-0000803-1996 BEFORE: OTT, J., DUBOW, J., and PLATT, J.* JUDGMENT ORDER BY PLATT, J.: FILED DECEMBER 08, 2016 Appellant, Daniel Scott Petrichko, appeals pro se from the denial of his third serial petition for relief pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541–9546 (PCRA), as untimely. sentence of life without parole for murder Appellant argues that his of the first degree is unconstitutional under Miller v. Alabama, 132 S. Ct. 2455 (2012), applied retroactively under Montgomery v. Louisiana, 136 S. Ct. 718 (2016), as revised (Jan. 27, 2016). We affirm. Appellant was twenty years old at the time he committed the murder. He argues, in effect, that Miller should be applied to him as an “emerging adult[ ] who struggle[s] with the same problems as those under the age of ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-S82045-16 [eighteen].” (Appellant’s Brief, at x).1 We note that Appellant has previously litigated his Miller claim. (See Commonwealth v. Petrichko, No. 1901 MDA 2012, 2013 WL 11254771, at *5 (Pa. Super. filed Sept. 4, 2013) (unpublished memorandum)). On appeal from the denial of PCRA relief, our standard and scope of review is limited to determining whether the PCRA court’s findings are supported by the record and without legal error. Our review of questions of law is de novo. See Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013), cert. denied, 134 S. Ct. 639 (2013). To prove this exception to the PCRA time-bar, Appellant had to assert a constitutional right, recognized by the United States Supreme Court or the Pennsylvania Supreme Court and held by that court to apply retroactively. See 42 Pa.C.S.A. § 9545(b)(1)(iii). Miller applies only to juveniles under the age of eighteen. supra at 2460. See Miller, The issue of where to draw the line has already been addressed by the United States Supreme Court in Roper v. Simmons, 543 U.S. 551, 574 (2005). The PCRA court properly determined that no statutory exception to the time-bar applied. Lacking jurisdiction, the court correctly declined to review the merits of Appellant’s issues. Order affirmed. ____________________________________________ 1 Appellant’s non-compliant and erratically paginated brief does not include a statement of questions involved. -2- J-S82045-16 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/8/2016 -3-

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