J-S04039-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
MICHAEL LEE BOURGEOIS,                    :
                                          :
                 Appellant                :     No. 1248 MDA 2014


              Appeal from the PCRA Order Entered July 7, 2014
             in the Court of Common Pleas of Lancaster County,
            Criminal Division, at No(s): CP-36-CR-0004224-2001
                        and CP-36-CR-0004975-2001

BEFORE:     BOWES, ALLEN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED MARCH 31, 2015

      Michael Lee Bourgeois (Appellant) appeals from the July 7, 2014 order

which dismissed his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      When Appellant was 17 years old, he killed Terry and Lucy Smith. In

2003, Appellant entered into a negotiated guilty plea whereby he pled guilty

to, inter alia, two counts of first-degree murder, and he received consecutive

sentences of life imprisonment without possibility of parole.      He filed no

direct appeal and was denied relief on his first two PCRA petitions.

      In 2012, Appellant filed the instant PCRA petition, which the PCRA

court dismissed as untimely filed by order of July 7, 2014. Appellant timely

filed a notice of appeal. The PCRA court did not require Appellant to file a


*Retired Senior Judge assigned to the Superior Court.
J-S04039-15


statement of errors complained of on appeal, and none was filed. The PCRA

court has filed an opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant presents three questions for this Court’s review:

      A.    Whether the [PCRA] court erred in denying Appellant’s
            PCRA petition as untimely where Miller v. Alabama[1]
            should be applied retroactively to [Appellant] where he is
            proceeding under the [PCRA].

      B.    Whether Pennsylvania’s mandatory life without parole
            sentencing scheme for juveniles convicted of murder (first
            or second degree) is unconstitutional under the U.S. and
            Pennsylvania Constitutions.

      C.    Whether [Appellant] should be re-sentenced under Act 204
            of 2012.

Appellant’s Brief at 4 (unnecessary capitalization, suggested answers, and

trial court answers omitted).

      Before we consider the merits of Appellant’s arguments, we must

determine whether his PCRA petition was timely filed. “[T]he timeliness of a

PCRA petition is a jurisdictional requisite.”   Commonwealth v. Williams,

35 A.3d 44, 52 (Pa. Super. 2011). “Generally, to obtain merits review of a

PCRA petition filed more than one year after a petitioner’s sentence became

final, the petitioner must allege and prove at least one of the three

timeliness exceptions.” Id.




1
  132 S.Ct. 2455 (2012), wherein the United States Supreme Court held that
the federal Constitution prohibits the mandatory imposition on juveniles of
life sentences without possibility of parole.


                                     -2-
J-S04039-15


      Here, Appellant attempted to invoke the timeliness exception found at

42 Pa.C.S. § 9545(b)(1)(iii).      PCRA Petition, 8/9/2012, at 3-4.          That

subsection provides that a petition may be filed more than one year after a

judgment becomes final if a petitioner pleads and proves that “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)(iii). Appellant claims that in Miller,

the United States Supreme Court recognized a new right under the United

States Constitution that must be applied retroactively. Appellant’s Brief at

10.   In the alternative, Appellant argues that Article I, Section 13 of the

Pennsylvania Constitution provides an independent basis for relief.      Id. at

12. We disagree.

      Subsection (iii) of Section 9545[(b)(1)] has two requirements.
      First, it provides that 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 provided
      in this section. Second, it provides that the right “has been
      held” by “that court” to apply retroactively. Thus, a petitioner
      must prove that there is a “new” constitutional right and that the
      right “has been held” by that court to apply retroactively. The
      language “has been held” is in the past tense. These words
      mean that the action has already occurred, i.e., “that court” has
      already held the new constitutional right to be retroactive to
      cases on collateral review. By employing the past tense in
      writing this provision, the legislature clearly intended that the
      right was already recognized at the time the petition was filed.




                                     -3-
J-S04039-15


Commonwealth v. Seskey, 86 A.3d 237, 242-43 (Pa. Super. 2014)

(quoting Commonwealth v. Copenhefer, 941 A.2d 646, 649–50 (Pa.

2007)).

      The United States Supreme Court did not indicate in Miller whether its

decision applies retroactively.   In Commonwealth v. Cunningham, 81

A.3d 1 (Pa. 2013), cert. denied, 134 S.Ct. 2724 (2014), our Supreme Court

held that the right recognized in Miller does not apply retroactively. Thus,

Appellant cannot use the Miller decision to satisfy the requirements of

subsection 9545(b)(1)(iii).

      Further, Appellant cites to no case in which our Supreme Court has

recognized a new, retroactively-applicable right under Article I, Section 13 of

the Pennsylvania Constitution. Therefore, Appellant cannot use this claim to

sustain his burden as to subsection 9545(b)(1)(iii). See Seskey, 86 A.3d at

243 (holding that it could not consider the substance of the appellant’s

claims under Article I, Section 13 of the Pennsylvania Constitution given the

language of subsection 9545(b)(1)(iii) and Cunningham).

      Because Appellant did not plead facts that would establish an

exception to the PCRA’s timeliness requirements, the PCRA court lacked

jurisdiction to address the merits of his petition and properly dismissed it

without a hearing.

      Order affirmed.




                                     -4-
J-S04039-15




Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 3/31/2015




                          -5-
