J-S64016-16

                                   2016 PA Super 219

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

ROBERT FURGESS

                            Appellant                  No. 448 EDA 2016


                  Appeal from the Order Dated January 6, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0132171-1989


BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

OPINION BY SOLANO, J.:                           FILED SEPTEMBER 28, 2016

        Appellant, Robert Furgess, appeals pro se from the order dismissing

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

42 Pa.C.S. §§ 9541-9546. The PCRA court found Appellant’s petition to be

untimely and therefore not within its jurisdiction. Upon review, we affirm.

        At the conclusion of a bench trial on October 27, 1989, Appellant was

convicted of first-degree murder and possession of an instrument of crime

(PIC).1    The trial court sentenced Appellant to life imprisonment for the

murder conviction, and a concurrent term of one to two years’ imprisonment

for the PIC conviction.        Appellant filed a timely appeal, and this Court

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*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(a);18 Pa.C.S. § 907(b).
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affirmed his judgment of sentence on October 9, 1991. Commonwealth v.

Furgess (Pa. Super. Oct. 9, 1991) (unpublished memorandum). Appellant

did not file a petition for allowance of an appeal by the Supreme Court of

Pennsylvania.2

       Appellant unsuccessfully sought post-conviction relief in his first PCRA

petition filed on December 10, 1996.3 Appellant filed the PCRA petition at

issue in this appeal on August 8, 2012. On December 4, 2015, the PCRA

court issued a Criminal Rule 907 notice of intent to dismiss this petition on

the basis that it was untimely and Appellant had failed to plead an exception

to the PCRA’s time bar.         Appellant did not file a response.   By an order

entered on January 6, 2016, the PCRA court denied Appellant’s petition.

This appeal followed.

       On appeal, Appellant raises one issue for our review:


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2
   Appellant states “Allocatur was denied.”       Appellant’s Brief at vii.
Conversely, the Commonwealth states that Appellant “did not seek allocatur
in the Supreme Court of Pennsylvania.” Commonwealth’s Brief at 6. Our
review of the certified record discloses that the Commonwealth is correct,
and Appellant did not seek allocatur.
3
  Initially, the PCRA court denied relief, Appellant appealed, and this Court
issued a decision reversing and remanding so that Appellant’s counsel could
“review appellant’s amended PCRA petition and submit an amended ‘no
merit’ letter or, alternatively, an amended PCRA petition.” Commonwealth
v. Furgess (Pa. Super. July 20, 1999) (unpublished memorandum). After
remand, the PCRA court denied Appellant’s petition without a hearing,
Appellant appealed, and this Court affirmed. Commonwealth v. Furgess
(Pa. Super. May 21, 2001) (unpublished memorandum).



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        DID THE PCRA COURT COMMIT AN ERROR OF LAW WHERE IT
        FAILED TO CONCLUDE THAT PETITIONER’S MANDATORY
        SENTENCE OF LIFE WITHOUT PAROLE IS UNCONSTITUTIONAL
        UNDER THE 8TH AMENDMENT TO THE UNITED STATES
        CONSTITUTION AS EXPRESSED IN MILLER V. ALABAMA?

Appellant’s Brief at vi.

        Before considering the merits of Appellant’s claims, we must first

determine whether the PCRA court correctly concluded that because

Appellant’s second PCRA petition was not filed within the time limits required

by the PCRA, the court lacked jurisdiction to consider the petition.               See

PCRA Court Opinion, 1/6/16, at 2-3.

        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.4           See 42 Pa.C.S. § 9545(b).      A PCRA petition




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4
    The three exceptions to the timeliness requirement are:

        (i) the failure to raise the claim previously was the result of
        interference of 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.

(Footnote Continued Next Page)


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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). Asserted exceptions to the

time restrictions for the PCRA must be included in the petition, and may not

be raised for the first time on appeal.           Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007). This Court’s standard of review regarding

an order dismissing a petition under the PCRA is “to determine whether the

determination of the PCRA court is supported by the evidence of record and

is free of legal error.”      Commonwealth v. Barndt, 74 A.3d 185, 191-92

(Pa. Super. 2013) (citations omitted).

      Here, Appellant’s judgment of sentence became final on November 8,

1991, when the thirty-day time period for filing an allocatur petition with our

Supreme Court expired.          See 42 Pa.C.S. § 9545(b)(3).   As Appellant filed

the PCRA petition at issue here on August 8, 2012 — more than twenty

years after his judgment of sentence became final — it is patently untimely

                       _______________________
(Footnote Continued)

      (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. § 9545(b)(1).



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unless he has satisfied his burden of pleading and proving that one of the

enumerated exceptions applies. See Hernandez, 79 A.3d at 651.5

       In this PCRA petition, Appellant acknowledged the statutory time bar

and conceded that his petition is untimely if no exception applies.        PCRA

Petition, 8/12/12, at 2-3. However, Appellant asserted an exception to the

time bar under 42 Pa.C.S. § 9545(b)(1)(iii), which provides that a petitioner

may seek relief when there is “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 by that court to apply

retroactively.”    Id.    In his petition, Appellant relied on the U.S. Supreme

Court’s decision in Miller v. Alabama, 132 S. Ct. 2455, 2460 (2012), which

held that a sentence of life imprisonment without the possibility of parole is

unconstitutionally cruel and unusual punishment when imposed upon

defendants convicted of murder who were “under the age of 18 at the time

of their crimes.”        Similarly, in his brief to this Court, Appellant invokes

Section 9545(b)(1)(iii), based on his contention that he is entitled to relief

under Miller and the Supreme Court’s recent decision in Montgomery v.

Louisiana, 136 S. Ct. 718 (2016), which held that its decision in Miller


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5
  Because his judgment of sentence became final prior to the 1995
amendments to the PCRA, which added the time restrictions, Appellant was
permitted to file his first PCRA petition by January 16, 1996.       See
generally Commonwealth v. Crawley, 739 A.2d 108 (Pa. 1999).



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applies retroactively to cases on state collateral review. Appellant’s Brief at

1-9.6

        To invoke any of the time bar exceptions in Section 9545(b)(1),

Appellant was required to file his petition relying on that exception “within

60 days of the date the claim [under the exception] could have been

presented.” 42 Pa. C.S. § 9545(b)(2). Here, if Appellant’s petition actually

presented a valid claim under Miller v. Alabama, Appellant would have met

that 60-day deadline because Miller was decided on June 25, 2012, and

Appellant filed his PCRA petition less than 60 days later, on August 8, 2012.

See generally Commonwealth v. Secreti, 134 A.3d 77, 82 (Pa. Super.

2016). But even though he filed within 60 days of the Miller decision,

Appellant’s petition did not satisfy the jurisdictional requirements of Section

9545 because the petition did not present a claim falling within the ambit of

the Supreme Court’s decision in Miller and therefore does not fall under the

“newly recognized constitutional right” exception in Section 9545(b)(1)(iii).

        The Miller decision applies to only those defendants who were “under

the age of 18 at the time of their crimes.”       132 S. Ct. at 2460.     Both

Appellant’s PCRA petition and his appellate brief acknowledge that Appellant

“was 19 years old at the time of his offenses.” See PCRA Petition, 8/8/12,

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6
 The PCRA Court issued its decision three weeks before the U.S. Supreme
Court decided Montgomery.




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at 4; Appellant’s Brief at vii.   In this regard, the PCRA court noted that

Appellant’s birth date is December 3, 1968, and the murder occurred on

August 28, 1988, “making him nineteen years old on the date of the

murder.” PCRA Court Opinion, 1/6/16, at 2, n.3. The PCRA court therefore

concluded that Appellant’s “reliance on the Miller case for relief is

misplaced” because Appellant, “[b]y his own admission, was nineteen years

old when he committed the crime.” Id. at 3. We agree.

      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


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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 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.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/28/2016




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