J-S18045-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

PERRY POOLE

                                  Appellant           No. 1913 EDA 2016


                   Appeal from the PCRA Order May 18, 2016
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0327791-1990

BEFORE: PANELLA, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                            FILED MAY 01, 2017

        Appellant, Perry Poole, appeals from the order dismissing his third Post

Conviction Relief Act1 (“PCRA”) petition as untimely. Appellant claims he is

entitled to relief pursuant to the United States Supreme Court’s decisions in

Montgomery v. Louisiana, 136 S. Ct. 718 (2016), and Miller v. Alabama,

132 S. Ct. 2455 (2012), even though he was over eighteen years old at the

time of the offense. We affirm.

        The PCRA court has summarized the factual and procedural history

underlying this appeal, which we adopt for the purposes of this appeal. See

PCRA Ct. Op., 8/31/16, at 1-4.      Of relevance to this appeal, we note that

Appellant was over eighteen when he committed the offenses of first-degree


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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murder, robbery, conspiracy, and possession of an instrument of crime on

December 9, 1989.2 Following a jury trial, Appellant was found guilty and

sentenced to a term of life imprisonment. This Court affirmed the judgment

of sentence on July 1, 1993, and the Pennsylvania Supreme Court denied

allowance of appeal on October 27, 1993. Appellant filed his first two PCRA

petitions on November 2, 1999, and June 28, 2006, respectively, and both

petitions were denied.

        Appellant, acting pro se, filed the instant third PCRA petition on July

13, 2010, seeking relief from the sentence of life imprisonment based on

Graham v. Florida, 560 U.S. 48 (2010).                Appellant filed pro se a

supplemental memorandum of law on July 25, 2012, discussing the United

States Supreme Court’s decision in Miller, as well as several amended

petitions.    On June 18, 2014, the PCRA court issued a Pa.R.Crim.P. 907

notice of its intent to dismiss the petition. Appellant responded pro se. On

February 16, 2016, Appellant filed a pro se supplemental petition citing the

January 25, 2016 decision of the United States Supreme Court in

Montgomery.

        On May 18, 2016, the PCRA court dismissed Appellant’s petition and

supplemental petitions as untimely. Appellant timely appealed. The court

did not order the submission of a Pa.R.A.P. 1925(b) statement.

        Appellant presents the following questions for our review:

2
    Appellant’s date of birth is listed as January 13, 1971.



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         1. Whether the PCRA Court err[ed] in denying [Appellant’s]
         PCRA [petition] without an hearing?

         2.    Whether    Appellant   is   entitled  to    have   his
         unconstitutional life sentence vacated in light of Art. 5, §
         (q)(ii),   under      Pennsylvania’s     Constitution   and
         Montgomery . . . ?

Appellant’s Brief at 4. Appellant contends that his mandatory life sentence

constitutes cruel and unusual punishment.     He further argues that Miller

and Montgomery afford him relief from the PCRA time-bar because those

decisions created a new constitutional right. Id. at 6. He claims that the

principles set forth in Miller and Montgomery should apply to him even

though he was not under eighteen when he committed the offenses. Id. at

8-10. No relief is due.

      “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

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

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).

      As our Supreme Court has explained:

         the PCRA timeliness requirements are jurisdictional in
         nature and, accordingly, a PCRA court is precluded from
         considering untimely PCRA petitions. We have also held
         that even where the PCRA court does not address the
         applicability of the PCRA timing mandate, th[e] Court will
         consider the issue sua sponte, as it is a threshold question
         implicating our subject matter jurisdiction and ability to
         grant the requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (citations

omitted).


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      A PCRA petition “must normally be filed within one year of the date the

judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-

(iii) applies and the petition is filed within 60 days of the date the claim

could have been presented.”         Commonwealth v. Copenhefer, 941 A.2d

646, 648 (Pa. 2007) (some citations and footnote omitted).          The three

exceptions to the general one-year time limitation are:

         (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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).

      Instantly, there is no dispute that Appellant’s July 13, 2010 petition

was untimely on its face.     Nevertheless, Appellant filed his supplemental

petition within sixty days of         Montgomery, which held that Miller

announced a retroactive rule of constitutional law. Montgomery, 136 S. Ct.

at 724. However, Appellant was more than eighteen years old at the time

he committed the offenses. Therefore, the right recognized by Miller and

held to be retroactive in Montgomery does not provide Appellant a basis for



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relief from the PCRA time bar.    See Miller, 132 S. Ct. at 2460 (holding

mandatory life without parole sentences for individuals under eighteen at

the time of their crimes are unconstitutional); Commonwealth v. Furgess,

149 A.3d 90, 94 (Pa. Super. 2016) (noting “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)”). Thus, no relief is

due.

Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/1/2017




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