J-S59024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    EARNEST N. DUKES                           :
                                               :
                       Appellant               :   No. 3626 EDA 2016

                 Appeal from the PCRA Order November 3, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0504571-1991


BEFORE:      BENDER, P.J.E., OTT, J., and FITZGERALD, J.

MEMORANDUM BY OTT, J.:                               FILED DECEMBER 19, 2017

        Earnest N. Dukes appeals, pro se, from the order entered November 3,

2016, in the Court of Common Pleas of Philadelphia County denying him relief

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

Pa.C.S. § 9540 et seq. The petition, Dukes’ fifth, was denied without a hearing,

pursuant to Pa.R.Crim.P. 907. In this timely appeal, Dukes claims the PCRA

court erred in determining, 1) his petition was untimely, 2) his petition was

meritless, and 3) his constitutional rights had not been violated. Dukes bases

his claims on the United States Supreme Court cases of Miller v. Alabama,




____________________________________________


   Former Justice specially assigned to the Superior Court.
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___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)1 and Montgomery v.

Louisiana, ___ U.S. ___, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016).2 After a

thorough review of the submissions by the parties, certified record, relevant

law, we affirm.

       The relevant underlying facts are easily related. In 1990, when he was

22 years old, Dukes shot and killed a man while robbing him of his gold chain.

In 1992, Dukes pled guilty to second-degree murder and was sentenced to a

mandatory term of life imprisonment without parole.              Following the

Montgomery decision, Dukes filed the instant PCRA petition claiming

although he was 22 years old at the time of the crime, and although Miller

only applies to those defendants who were under the age of 18 at the time of

the crime, he should be entitled to relief, as scientifically, his brain was also

immaturely developed.

       Our standard of review of the denial of a PCRA petition is limited
       to examining whether the record evidence supports the court's
       determination and whether the court's decision is free of legal
       error.

Commonwealth v. Shiloh, 170 A.3d 553, 556 (Pa. Super. 2017) (citation

omitted).



____________________________________________


1 Miller determined that mandatory sentences of life imprisonment without
parole for minors were unconstitutional, due to the immaturity of a minor’s
brain development.

2Montgomery determined that the Miller decision was entitled to retroactive
application on collateral review.

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        Here, the PCRA court determined the instant petition was untimely and

therefore the court had no jurisdiction to address the merits of Dukes’ claim.

Clearly, the instant petition is facially untimely; Dukes pled guilty in 1992, this

petition was not filed until 2016. The PCRA allows a petitioner one year from

the date his or her judgment of sentence became final to file a PCRA petition.

Dukes’ judgment of sentence became final in October of 1993. See PCRA

Court opinion, at 1. Accordingly, the instant petition is approximately 23 years

too late.

        The timeliness of a post-conviction petition is jurisdictional.
        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 one of the three exceptions to the time
        limitations for filing the petition set forth in Section 9545(b)(1) of
        the statute. See 42 Pa.C.S. § 9545(b). 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 651-52; see also 42 Pa.C.S. § 9545(b)(2).

Commonwealth v. Furgess, 149 A.3d 90, 92-93 (Pa. Super. 2016).

        Here, Dukes asserts the combination of the U.S. Supreme Court

decisions of Miller and Montgomery satisfy the timeliness exception found

at 42 Pa.C.S. § 9545(b)(1)(iii), “a constitutional right that was recognized by

the U.S Supreme Court or the Supreme Court of Pennsylvania after the time

period provided in this section and has been held to apply retroactively.” As

noted    above,    Dukes    has   claimed   entitlement   to   the   application   of




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Miller/Montgomery because, at 22 years old at the time of his crime, his

brain was immaturely developed as described by the Supreme Court in Miller.

     This argument was rejected by previous decision by our Court,

specifically Commonwealth v. Furgess, supra, and Commonwealth v.

Cintora, 69 A.3d 759 (Pa. Super. 2013). In Furgess, our Court held:

     Appellant argues that he nevertheless may invoke Miller because
     he was a “technical juvenile,” and he relies on neuroscientific
     theories regarding immature brain development to support his
     claim that he is eligible for relief. But, rather than presenting an
     argument that is within the scope of the Miller decision, this
     argument by Appellant seeks an extension of Miller to persons
     convicted of murder who were older at the time of their crimes
     than the class of defendants subject to the Miller holding. See
     Appellant's Brief at 3-7.

     We rejected reliance on this same argument for purposes of
     Section 9545(b)(1)(iii) in Commonwealth v. Cintora, 69 A.3d
     759 (Pa. Super. 2013). The defendants in Cintora were 19 and
     21 years old at the times of their crimes, but they argued that
     Miller should apply to them and others “whose brains were not
     fully developed at the time of their crimes.” Id. at 764. We stated
     that “[a] contention that a newly-recognized constitutional right
     should be extended to others does not render [a] petition
     [seeking such an expansion of the right] timely pursuant to
     section 9545(b)(1)(iii).” Id. (emphasis in original).

     We also pointed out in Cintora that the right recognized in Miller
     had not been held to apply retroactively at the time of that
     decision and that its non-retroactivity would have been an
     alternative basis for denial of relief. 69 A.3d at 764 n. 4. Because
     the U.S. Supreme Court in Montgomery has since held that
     Miller does apply retroactively, this second reason stated in the
     Cintora opinion is no longer good law. However, nothing in
     Montgomery undermines Cintora’s holding that petitioners who
     were older than 18 at the time they committed murder are not
     within the ambit of the Miller decision and therefore may not rely
     on that decision to bring themselves within the time-bar exception
     in Section 9545(b)(1)(iii). Accordingly, Cintora remains


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      controlling on this issue, and Appellant's assertion of the time-bar
      exception at Section 9545(b)(1)(iii) must be rejected.

      In sum, the PCRA court correctly concluded that it lacked
      jurisdiction to consider Appellant's untimely PCRA petition. We
      therefore affirm the PCRA court's order denying Appellant post-
      conviction relief.

Commonwealth v. Furgess, 149 A.3d at 94.

      The certified record supports the PCRA court’s conclusion that the

petition was untimely and that it lacked jurisdiction to consider the merits.

Pursuant to Furgess and Cintora, we affirm the PCRA court’s order denying

Dukes relief.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2017




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