J-S76033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    ANTHONY HENRY,

                             Appellant                 No. 824 EDA 2017


                 Appeal from the PCRA Order February 17, 2017
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-1000081-1996


BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                           FILED JANUARY 09, 2018

        Appellant, Anthony Henry, appeals pro se from the order dismissing his

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

Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

        We take the following facts and procedural history of this case from our

independent review of the certified record. On February 26, 1999, Appellant

was convicted by a jury of first-degree murder and abuse of a corpse. The

charges arose from Appellant’s strangulation of his then-girlfriend to death

with a telephone cord in March of 1994. Appellant was twenty-five years old

at the time of the murder. The trial court sentenced Appellant to an aggregate

term of life imprisonment.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       This Court affirmed the judgment of sentence on July 18, 2001. (See

Commonwealth v. Henry, 782 A.2d 1054 (Pa. Super. 2001) (unpublished

memorandum)). Our Supreme Court denied Appellant’s petition for allowance

of appeal on December 4, 2001. (See Commonwealth v. Henry, 793 A.2d

905 (Pa. 2001)).         Appellant litigated three unsuccessful PCRA petitions

thereafter, filed on June 3, 2002, October 27, 2008, and October 11, 2011.

       On March 14, 2016, Appellant filed the instant pro se PCRA petition,

claiming a right to relief predicated on the United States Supreme Court’s

decision in Miller v. Alabama, 132 S.Ct. 2455 (2012).1 (See PCRA Petition,

3/14/16, at 3-4, 8 (arguing that mandatory sentences of life without parole

for individuals over the age of seventeen are also unconstitutional)).    The

PCRA court issued notice of its intent to dismiss the petition without further

proceedings on January 6, 2017. See Pa.R.Crim.P. 907(1). It entered its

order dismissing Appellant’s PCRA petition on February 17, 2017. This timely

appeal followed.2


____________________________________________


1 The Miller Court held that it is unconstitutional for states to sentence
juvenile homicide defendants to mandatory sentences of life imprisonment
without the possibility of parole. See Miller, supra at 2460. In Montgomery
v. Louisiana, 136 S.Ct. 718 (2016), the Court determined that its Miller
holding constituted a new substantive rule of constitutional law that must be
applied retroactively to cases on collateral review. See Montgomery, supra
at 736.
2 Appellant filed a timely, court-ordered concise statement of errors
complained of on appeal on May 1, 2017. The PCRA court entered an opinion
on June 22, 2017. See Pa.R.A.P. 1925.



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       On appeal, Appellant argues for an extension of the precepts set forth

in Miller to adult offenders. (See Appellant’s Brief, at 3, 10-18).3

            Our standard of review of an order denying PCRA relief is
       whether the record supports the PCRA court’s determination, and
       whether the PCRA court’s determination is free of legal error. The
       PCRA court’s findings will not be disturbed unless there is no
       support for the findings in the certified record.

Commonwealth v. Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citations

omitted).

       We begin by addressing the timeliness of Appellant’s petition.

             The PCRA provides eligibility for relief in conjunction with
       cognizable claims, . . . and requires petitioners to comply with the
       timeliness restrictions. . . . [A] PCRA petition, including a second
       or subsequent petition, must be filed within one year of the date
       that judgment becomes final. A judgment becomes final for
       purposes of the PCRA at the conclusion of direct review, including
       discretionary review in the Supreme Court of the United States
       and the Supreme Court of Pennsylvania, or at the expiration of
       time for seeking the review.

              It is well-settled that the PCRA’s time restrictions are
       jurisdictional in nature. As such, this statutory time-bar implicates
       the court’s very power to adjudicate a controversy and prohibits
       a court from extending filing periods except as the statute
       permits. Accordingly, the period for filing a PCRA petition is not
       subject to the doctrine of equitable tolling; instead, the time for
       filing a PCRA petition can be extended only by operation of one of
       the statutorily enumerated exceptions to the PCRA time-bar.

              The exceptions to the PCRA time-bar are found in Section
       9545(b)(1)(i)–(iii) (relating to governmental interference, newly
       discovered facts, and newly recognized constitutional rights), and
       it is the petitioner’s burden to allege and prove that one of the
____________________________________________


3 We have summarized Appellant’s issues for ease of disposition; his brief is
difficult to follow and nearly unintelligible. However, it is clear that the crux
of his claim is that Miller must be applied in this case.

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      timeliness exceptions applies. Whether a petitioner has carried
      his burden is a threshold inquiry that must be resolved prior to
      considering the merits of any claim. . . .

Commonwealth v. Robinson, 139 A.3d 178, 185–86 (Pa. 2016) (quotation

marks and citations omitted).

      Here, Appellant’s judgment of sentence became final on March 4, 2002,

ninety days after our Supreme Court denied allowance of appeal. See U.S.

Sup.Ct. R. 13; 42 Pa.C.S.A. § 9545(b)(3).        Therefore, Appellant had until

March 4, 2003, to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1).

Because Appellant filed the instant petition on March 14, 2016, it is untimely

on its face, and the PCRA court lacked jurisdiction to review it unless he

pleaded and proved one of the statutory exceptions to the time-bar. See 42

Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      Section 9545 of the PCRA provides only three limited exceptions that

allow for review of an untimely PCRA petition:

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

Id.




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      Any petition invoking an exception must “be filed within 60 days of the

date the claim could have been presented.”       Id. at § 9545(b)(2).    “If the

[PCRA] petition is determined to be untimely, and no exception has been pled

and proven, the petition must be dismissed without a hearing because

Pennsylvania courts are without jurisdiction to consider the merits of the

petition.” Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa. Super. 2011),

appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted).

      Here, Appellant invokes the newly recognized and retroactively applied

constitutional right exception at 42 Pa.C.S.A. § 9545(b)(1)(iii), by arguing

that his life sentence should be considered unconstitutional pursuant to Miller

and Montgomery. (See Appellant’s Brief, at 10-16; see also PCRA Petition,

at 3-4, 8). We disagree.

      This Court has expressly “[held] 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).”       Commonwealth v.

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

Therefore, Appellant, as an adult offender, falls outside the ambit of Miller,

and his arguments predicated on an extension of Miller and Montgomery

fail. See id.

      In sum, we conclude Appellant has not met his burden of proving that

his untimely PCRA petition fits within one of the three exceptions to the PCRA’s




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time-bar. See Robinson, supra at 185-86. Accordingly, we affirm the order

of the PCRA court.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/9/18




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