J-S05021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

FRANCIS E. VANDERPOOL

                            Appellant                  No. 1152 MDA 2016


                    Appeal from the PCRA Order July 1, 2016
               In the Court of Common Pleas of Bradford County
              Criminal Division at No(s): CP-08-CR-0000003-1965
                                          CP-08-MD-0000209-2012


BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.

MEMORANDUM BY PANELLA, J.                        FILED FEBRUARY 24, 2017

        Appellant, Francis E. Vanderpool, appeals pro se from the order

entered in the Bradford County Court of Common Pleas on July 1, 2016,1

dismissing his serial Post Conviction Relief Act (“PCRA”) petition as untimely.

We affirm.




____________________________________________



    Retired Senior Judge assigned to Superior Court.
1
  Appellant purports to appeal from the PCRA court’s order dated June 27,
2016. See Notice of Appeal, filed 7/14/16. “In a criminal case, the date of
entry of an order is the date the clerk of courts enters the order on the
docket, furnishes a copy of the order to the parties, and records the time
and manner of notice on the docket.” Commonwealth v. Jerman, 762
A.2d 366, 368 (Pa. Super. 2000) (citations omitted). That date, in this case,
is July 1, 2016.
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      The relevant facts and procedural history of this case may be

summarized as follows. On January 21, 1966, Appellant entered a guilty plea

to murder generally, for the shooting death of his pregnant wife. Appellant

was 18 years old at the time of the murder. The trial court accepted the plea

and held a degree of guilt hearing, at which time the court deemed Appellant

guilty of first-degree murder. The court sentenced him to the statutorily

mandated term of life incarceration without parole.

      In   the   years   following   Appellant’s   conviction,   he   filed   several

unsuccessful petitions for collateral relief. Appellant filed the instant petition

on March 28, 2016. The PCRA court issued Rule 907 notice, and later

dismissed Appellant’s petition. Appellant filed a timely notice of appeal.

      The timeliness of a post-conviction petition is jurisdictional. See

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

subsequent petition, must be filed within one year of the date the judgment

is final unless the petition alleges, and the petitioner proves, an exception to

the time for filing the petition is met. See 42 Pa.C.S.A. § 9545(b)(1)(i), (ii),

and (iii). A PCRA petition invoking one of these statutory exceptions must

“be filed within 60 days of the date the claims could have been presented.”

See Hernandez, 79 A.3d at 652 (citations omitted). See also 42 Pa.C.S.A.

§ 9545(b)(2).

      “[A] contention that a newly-recognized constitutional right should be


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extended to others does not render [a] petition [seeking such an expansion

of the right] timely pursuant to section 9545(b)(1)(iii).” Commonwealth v.

Furgess, 149 A.3d 90, 94 (Pa. Super. 2016) (citation omitted; brackets

added and in original; emphasis in original).

      Appellant did not file a direct appeal; therefore, his judgment of

sentence became final in 1966. Despite the half-century lapse between his

judgment of sentence and his current petition, Appellant attempts to avoid

the PCRA’s time bar by invoking the new constitutional rule exception.

Appellant     cites   Miller    v.     Alabama,       132   S.Ct.   2455   (2012),   and

Montgomery v. Louisiana, 136 S.Ct. 718 (2016).

      In    Miller,    the     Court    held   that    “mandatory    life-without-parole

sentences for juveniles violate the Eighth Amendment.” Id., at 2464. In

Montgomery, the Court found that Miller recognized “a new substantive

rule of constitutional law” and should apply retroactively. 136 S.Ct. at 729.

      Appellant was 18 when he murdered his pregnant wife. He cites Miller

and Montgomery for the novel premise that the Supreme Court’s rulings

include those who were 18 at the time they committed their crimes. Miller,

however, applies to “juveniles,” id., at 2464, that is, only to those

defendants who were “under the age of 18 at the time of their crimes,” id.,

at 2460. Appellant’s reliance on Miller and Montgomery for retroactive

relief from a crime he committed when he was legally an adult is simply

inapposite.


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      We further note that this Court has flatly rejected Appellant’s brain

development argument. See, e.g., Furgess, 149 A.3d at 94.

      Appellant’s petition is patently untimely and does not fall into any of

the exceptions enumerated in 42 Pa.C.S.A. § 9545(b); consequently, the

PCRA court lacked jurisdiction to consider it. Thus, the PCRA court properly

dismissed Appellant’s petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2017




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