J-S45026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GARY GULLY                                 :
                                               :
                       Appellant               :   No. 2232 EDA 2018

               Appeal from the PCRA Order Entered July 13, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0119352-1986


BEFORE:      BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.:                              FILED AUGUST 16, 2019

        Gary Gully (Appellant) appeals pro se from the order denying his

untimely petition filed pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541-9546. We affirm.

        For more than 30 years, Appellant has been serving a life sentence,

imposed on January 6, 1988, after a jury convicted him of second degree

murder, criminal conspiracy, kidnapping, and robbery; this Court affirmed the

judgment of sentence on direct appeal. Commonwealth v. Gully, 549 A.2d

1339 (Pa. Super. Aug. 15, 1988) (unpublished memorandum).              Appellant

petitioned for allowance of appeal, which the Pennsylvania Supreme Court

denied on January 24, 1989. Commonwealth v. Gully, 557 A.3d 342 (Pa.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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1989).    Appellant did not seek a writ of certiorari with the United States

Supreme Court.

       On January 17, 1996, Appellant filed his first PCRA petition. The PCRA

court dismissed the petition on October 26, 1996. Appellant sought relief with

this   Court   and    the   Supreme      Court.   He   was   unsuccessful.   See

Commonwealth v. Gully, 716 A.2d 1248 (Pa. 1998) (denying Appellant’s

petition for allowance of appeal).

       On August 21, 2012, Appellant filed the underlying pro se PCRA

petition, his second. After providing notice of intent to dismiss the petition

pursuant to Pennsylvania Rule of Criminal Procedure 907 on May 30, 2018,

the PCRA court dismissed the petition on July 13, 2018.1 Appellant filed this

appeal on July 27, 2018.

       We begin with the untimeliness of Appellant’s petition. “Pennsylvania

law makes clear no court has jurisdiction to hear an untimely PCRA petition.”

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa. Super. 2010)

(quoting Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)).

A petitioner must file a PCRA petition within one year of the date on which the

petitioner’s judgment of sentence became final, unless one of the three

statutory exceptions applies:




____________________________________________


1 We bolded these dates to reflect the nearly six (6) year lapse between
Appellant’s filing of the PCRA petition in 2012 and the PCRA court’s disposition
in 2018. There is no explanation for the delay in the record.

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       (i) the failure to raise the claim previously was the result of
       interference by government officials with the presentation of the
       claim in violation of the Constitution or laws of this Commonwealth
       or the Constitution or laws of the United States;

       (ii) the facts upon which the claim is predicated were unknown to
       the petitioner and could not have been ascertained by the exercise
       of due diligence; or

       (iii) 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.A. § 9545(b)(1). A petitioner must file a petition invoking one of

these exceptions within one year of the date the claim could have been

presented. 42 Pa.C.S.A. § 9545(b)(2).2 If a petition is untimely, and the

petitioner has not pled and proven an exception, “‘neither this Court nor the

trial court has jurisdiction over the petition. Without jurisdiction, we simply

do not have the legal authority to address the substantive claims.’”

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

       As noted above, the trial court sentenced Appellant in 1988, this Court

affirmed the judgment of sentence, and the Supreme Court denied Appellant’s



____________________________________________


2 Or in Appellant’s case, 60 days. Act 146 of 2018 amended 42 Pa.C.S.A.
§9545(b)(2), effective December 2017, and now provides that a PCRA petition
invoking a timeliness exception be filed within one year of the date the claim
could have been presented; the prior law required that the petition be filed
within 60 days. The amendment does not apply to Appellant, who filed his
petition on August 21, 2012.


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petition for allowance of appeal. See Commonwealth v. Gully, 549 A.2d

1339    (Pa.   Super.    Aug.    15,   1988)    (unpublished     memorandum);

Commonwealth v. Gully, 557 A.3d 342 (Pa. 1989). Appellant did not seek

a writ of certiorari with the United States Supreme Court.            Appellant’s

judgment of sentence is obviously untimely. See 42 Pa.C.S.A. § 9545(b)(3)

(“a judgment becomes 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.”).

       Appellant does not contest the untimeliness of his PCRA petition, which

he filed on August 21, 2012, approximately two months after the United States

Supreme Court, on June 25, 2012, decided Miller v. Alabama, 567 U.S. 460

(2012) (holding that mandatory life imprisonment without parole for those

under the age of 18 at the time of their crimes violates the Eighth

Amendment’s prohibition on cruel and unusual punishments).                Rather,

Appellant claims he is entitled to relief under the newly discovered facts and

constitutional right exceptions to the PCRA’s time bar, 42 Pa.C.S.A. §

9545(b)(1)(ii) and (iii). See PCRA Petition, 8/21/12, 3-9; Appellant’s Brief at

3, 7-24. Appellant cites Miller, which was made retroactive by Montgomery

v. Louisiana, 136 S. Ct. 718 (2016) (announcing new substantive

constitutional rule that the holding in Miller was retroactive on state collateral

review).


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      Pertinently, Appellant concedes he was born on February 11, 1964, and

was 21 years old when he committed the crimes of which he was convicted.

He nonetheless asserts that he is eligible for relief because he possessed “an

under-developed brain at the time of the crime, which is supported by science

and social science in Miller.” See PCRA Petition, 8/12/12, at 3. This Court

has repeatedly found this argument to lack merit.

      Recently, this Court considered a similar claim in Commonwealth v.

Lee, 206 A.3d 1 (Pa. Super. 2019) (en banc). In Lee, the defendant, Ms.

Lee, was 18 years and nine-months old when she was involved in a robbery

that resulted in the death of the victim. Id. at 3. Following the United States

Supreme Court’s decisions in Miller and Montgomery, Ms. Lee filed a PCRA

petition arguing that she was a “virtual minor” at the time of the crime and

“the rationale underlying the Miller holding, including consideration of

characteristics of youth and age-related facts identified as constitutionally

significant by the Miller Court, provides support for extending the benefit of

Miller to her case.” Id. This Court concluded that Ms. Lee did not qualify for

an exception to the PCRA’s time bar. We opined:

      It is not this Court’s role to override the gatekeeping function of
      the PCRA time-bar and create jurisdiction where it does not exist.
      The PCRA’s time limitations “are mandatory and interpreted
      literally; thus, a court has no authority to extend filing periods
      except as the statute permits.” Commonwealth v. Fahy, [737
      A.2d 214, 222 (Pa. Super.] 1999). The period for filing a PCRA
      petition “is not subject to the doctrine of equitable tolling.” Id.

      We recognize the vast expert research on this issue. If this matter
      were one of first impression and on direct appeal, we might

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     expound differently. However, we are an error-correcting court.
     Until the United States Supreme Court or the Pennsylvania
     Supreme Court recognizes a new constitutional right in a non-
     juvenile offender, we are bound by precedent. We conclude, as
     we did in Commonwealth v. Montgomery [181 A.3d 359 (Pa.
     Super. 2018)], [Commonwealth v. Furgess, 149 A.3d 90 (Pa.
     Super. 2016)], and [Commonwealth v. Cintora, 69 A.3d 759
     (Pa. Super. 2013) abrogation on other grounds recognized in
     Furgess, supra, at 94], that age is the sole factor in determining
     whether Miller applies to overcome the PCRA time-bar and we
     decline to extend its categorical holding.

Lee, 206 A.3d at 11 (footnote omitted).

     Based on the foregoing, Appellant, like Ms. Lee, has failed to successfully

plead or prove that he qualifies for an exception to the PCRA’s time bar. We

therefore affirm the PCRA court.

     Order affirmed.

     Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/19




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