J-S46035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES INGE,                                :
                                               :
                       Appellant.              :   No. 3980 EDA 2017


                Appeal from the PCRA Order, November 3, 2017,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0902201-1973.


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                          FILED OCTOBER 10, 2018

       James Inge appeals from the order denying his second petition for post-

conviction relief filed pursuant to the Post Conviction Relief Act (“PCRA”). 42

Pa.C.S.A. §§ 9541-46. We affirm.

       The pertinent facts and procedural history may be summarized as

follows: On April 3, 1974, a jury convicted Inge of first-degree murder and

robbery. At the time of the victim’s murder, Inge claims he was nineteen

years old.1 On January 9, 1975, the trial court sentenced him to an aggregate

term of life in prison without the possibility of parole. Inge filed an appeal to

____________________________________________


1 The Commonwealth disputes Inge’s statement that his birthday is in March
1953, and refers to electronic records from the case which indicate that his
birthday is in March 1950. See Commonwealth’s Brief at 2. As shall be
discussed below, this discrepancy does not affect our conclusion that Inge is
not entitled to post-conviction relief.
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our Supreme Court and, on May 12, 1976, the Court affirmed his judgment of

sentence. Commonwealth v. Inge, 356 A.2d 771 (Pa. 1976). Inge did not

seek further review.

       Inge filed a petition for relief under the former Post Conviction Hearing

Act in 1978, the trial court denied the petition, and our Supreme Court

affirmed    the   denial    of   post-conviction   relief   on   October   16,   1981.

Commonwealth v. Inge, 435 A.2d 179 (Pa. 1981).

       On August 21, 2012, Inge filed the PCRA at issue, his second, seeking

relief pursuant to the United States Supreme Court’s recent decision in Miller

v. Alabama, 567 U.S. 460 (2012). On July 24, 2017, the PCRA court issued

Pa.R.Crim.P. 907 notice of intent to dismiss Inge’s petition without a hearing.2

Inge filed his response on August 1, 2017. By order entered November 3,

2017, the PCRA court denied Inge’s petition as untimely. This appeal follows.

The PCRA court did not require Pa.R.A.P. 1925 compliance.

       Inge raises the following issues:

           I.     Did the PCRA court err in rejecting [Inge’s] claim that
                  Miller v. Alabama’s constitutional requirement of
                  consideration of age-related factors prior to imposing
                  life without parole sentences applies to [Inge] who
                  [possessed] those characteristics of youth identified
                  as constitutionally significant for sentencing purposes
                  by the U.S. Supreme Court?


____________________________________________


2 It is not clear from the record why an almost five-year delay occurred
between the time Inge filed his second petition and the PCRA court issued its
Rule 907 notice.


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          II.    Did the PCRA court err in rejecting [Inge’s] claim that
                 Pennsylvania law permitting mandatory sentences of
                 life without parole for crimes committed by 19 year-
                 olds lacks a rationale [basis] in light of Miller’s
                 prohibition against such sentences for [offenders]
                 aged 17 and younger and therefore violates the equal
                 protection clauses of the United States and
                 Pennsylvania Constitutions?

          III.   Did the PCRA court abuse its discretion in failing to
                 hold an evidentiary hearing where [Inge] had raised
                 issues of material fact that entitle him to relief?

Inge’s Brief at 4 (excess capitalization omitted).3

       This Court’s standard of review regarding an order dismissing a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.       Commonwealth v.

Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not

be disturbed unless there is no support for the findings in the certified record.

Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001). Moreover,

a PCRA court may decline to hold a hearing on the petition if the PCRA court

determines that petitioner’s claim is patently frivolous and is without a trace

of support in either the record or from other evidence. Commonwealth v.

Jordan, 772 A.2d 1011, 1104 (Pa. Super. 2001).


____________________________________________


3 In a letter received by this Court on July 23, 2018, Inge stated that he wished
to “waive” his second issue. In addition, we reject Inge’s assertion that,
because he is proceeding pro se, we apply a “less stringent standard.” Inge’s
Brief at 2. See generally Commonwealth v. Freeland, 106 A.2d 768 (Pa.
Super. 2014)



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        Before addressing the issues raised by Inge, we must first determine

whether the PCRA court correctly concluded that Inge’s PCRA petition is

untimely.

        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, that an exception

to the time for filing the petition, set forth at 42 Pa.C.S.A. sections

9545(b)(1)(i), (ii), and (iii), is met.4 42 Pa.C.S.A. § 9545. 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


____________________________________________


4   The 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.

        (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)(i), (ii), and (iii).


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651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2).         Finally,

exceptions to the PCRA’s time bar must be pled 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); see also Pa.R.A.P. 302(a) (providing that issues

not raised before the lower court are waived and cannot be raised for the first

time on appeal).

      Inge’s judgment of sentence became final over thirty years ago.        As

Inge filed the instant petition in 2012, it is patently untimely unless he has

satisfied his burden of pleading and proving that one of the enumerated

exceptions applies. See Hernandez, supra.

      Inge has failed to establish any exception to the PCRA’s time bar. He

asserts that the PCRA court erred in denying him post-conviction relief

because he had satisfied the “newly-established constitutional right” exception

pursuant to the United States Supreme Court’s opinion in Miller v. Alabama,

supra. As acknowledged by Inge, the high court in Miller held that a statute

requiring a mandatory life sentence without possibility of parole for a juvenile

convicted of first or second-degree murder violates the Eighth Amendment’s

prohibition against cruel and unusual punishment. Our review of the record

in this case, however, supports the PCRA court’s conclusion that Miller is

inapplicable to Inge because he was over the age of eighteen at the time he

committed the murder. See PCRA Court Opinion, 11/28/17, at 1.

      Moreover, although Inge presents a lengthy discussion claiming that he

was “developmentally an adolescent,”       See Inge’s Brief at 11-37, to date

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Pennsylvania precedent has rejected this argument as an unwarranted

extension of Miller.5 See Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.

Super. 2016) (rejecting petitioner’s claim that, based upon “neuroscientific

theories regarding immature brain development, he was a “technical

juvenile”). As this Court recognized in Furgess, “[a] contention that a newly-

recognized constitutional right should be extended to other[s] does not

render [a] petition [seeking such an expansion of the right] timely pursuant

to Section 9545(b)(1)(iii). Id. (citing Commonwealth v. Cintora, 69 A.3d

759, 764 (Pa. Super. 2013).6

       In sum, because Inge was at least nineteen years old when he

committed the murder, the PCRA court correctly concluded that he could not

meet the “new constitutional right” exception to the PCRA’s time bar. Thus,

it lacked jurisdiction to consider Inge’s claims, and we affirm the order denying

post-conviction relief.

____________________________________________


5 Inge attaches an amicus curiae brief filed in another case to support his
assertion that “there is a very clear national consensus trending toward
restricting mandatory life without [parole] sentences, especially in the case
where defendants are eighteen (18) and nineteen year olds [adolescents].”
Inge’s Reply Brief at 1. As this is not proper material for a reply brief, we will
not consider it. See Pa.R.A.P. 2113 (“the appellant may file a brief in reply to
matters raised by appellee’s brief . . . No further briefs may be filed except
with leave of court”).

6Inge argues that Cintora and Furgess should be overruled. Inge’s Brief at
11. We disagree. Moreover, even if we were to agree with Inge, as a three-
member panel, we are unable to do so. See Commonwealth v. Taggert,
997 A.2d 1189, 1201 n.16 (Pa. Super. 2010) (noting that one three-judge
Superior Court panel cannot overrule another panel).


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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/18




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