J-S27035-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ROBERT T. NAUSS,

                            Appellant                No. 2947 EDA 2016


               Appeal from the PCRA Order September 19, 2016
               in the Court of Common Pleas of Delaware County
               Criminal Division at No.: CP-23-CR-0003770-1977


BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED MAY 12, 2017

        Appellant, Robert T. Nauss, appeals, pro se, from the order of

September 19, 2016, dismissing, without a hearing, his serial petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. Because the petition is untimely without an applicable exception, we

affirm.

        We take the underlying facts and procedural history in this matter

from our independent review of the certified record and this Court’s

November 10, 1998 memorandum denying Appellant’s first PCRA petition.

        On December 9, 1977, a jury found Appellant, who was nineteen years

old at the time of the incident, guilty of murder in the first degree. Following
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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the denial of post-trial motions, the trial court sentenced him to a term of

life imprisonment. On December 17, 1981, the Pennsylvania Supreme Court

affirmed the judgment of sentence. (See Commonwealth v. Nauss, 442

A.2d 661 (Pa. 1981)).

       Appellant escaped from prison in 1982. He remained a fugitive until

his capture in late 1990. On January 15, 1997, Appellant filed his first pro

se PCRA petition. The PCRA court appointed counsel who filed an amended

petition.   Following a hearing on the merits, the PCRA court denied the

petition on December 31, 1997. On November 10, 1998, this Court affirmed

the dismissal of the PCRA petition. (See Commonwealth v. Nauss, 734

A.2d 438 (Pa. Super. 1998)). On June 3, 1999, the Pennsylvania Supreme

Court denied leave to appeal. (See Commonwealth v. Nauss, 739 A.2d

542 (Pa. 1999)).

       On March 28, 2016, Appellant filed the instant pro se PCRA petition.1

On May 20, 2016, the PCRA court issued notice of its intent to dismiss the

petition pursuant to Pennsylvania Rule of Criminal Procedure 907.         See

Pa.R.Crim.P. 907(1). Appellant did not file a response. On September 19,

2016, the PCRA court dismissed the petition as untimely.

____________________________________________


1
   The record reflects that the PCRA court initially mistakenly filed this case
under one of Appellant’s other cases. However, Appellant notified the court
of the error in his notice of appeal. The PCRA court redocketed all of the
proceedings under the correct case number, but did not preserve the original
filing dates.



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       Appellant subsequently filed a timely pro se notice of appeal.2        The

PCRA court did not order Appellant to file a concise statement of errors

complained of on appeal, but did issue an opinion on October 14, 2016. See

Pa.R.A.P. 1925.

       Appellant raises two questions on appeal:

       I.     Did the [PCRA] court err[] in failing to acknowledge as
              newly discovered scientific evidence brought forth “timely”
              from [and] in the scientific language relied upon by the
              United States Supreme Court in deciding their January
              25[], 2016 case of Montgomery [v. Louisiana, 136 S.Ct.
              718 (2016)]?

       II.    Did the [PCRA] court err[] by failing to mention, address or
              even rule upon Appellant’s secondary sentencing issue in
              its opinion, totally unrelated to issue [one] above, where it
              appears that [] Appellant was [in 1979] sentenced illegally
              under a repealed non-existent statute that was twice, in
              years prior to sentencing, ruled by the [Pennsylvania]
              Supreme Court as being unconstitutional?

(Appellant’s Brief, at iii) (unnecessary capitalization and emphasis omitted).

       Appellant appeals from the denial of his PCRA petition. To be eligible

for relief pursuant to the PCRA, Appellant must establish that his conviction

or sentence resulted from one or more of the enumerated errors or defects

found in 42 Pa.C.S.A. § 9543(a)(2). He must also establish that the issues

raised in the PCRA petition have not been previously litigated or waived.

____________________________________________


2
  Again, because of the docketing error, Appellant filed his notice of appeal
after the court dismissed the PCRA petition under the incorrect docket
number, but slightly before the court issued a second order dismissing it
under the correct docket number.



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See 42 Pa.C.S.A. § 9543(a)(3).       An allegation of error “is waived if the

petitioner could have raised it but failed to do so before trial, during unitary

review, on appeal or in a prior state postconviction proceeding.”            42

Pa.C.S.A. § 9544(b).      Our standard of review for an order denying PCRA

relief is well settled:

              This Court’s standard of review regarding a PCRA court’s
        order is whether the determination of the PCRA court is
        supported by the evidence of record and is free of legal error.
        Great deference is granted to the findings of the PCRA court, and
        these findings will not be disturbed unless they have no support
        in the certified record. . . .

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a

trial court has no jurisdiction to entertain the petition.” Commonwealth v.

Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).

        In the instant matter, Appellant filed his PCRA petition on March 28,

2016.     The PCRA provides that “[a]ny petition under this subchapter,

including a second or subsequent petition, shall be filed within one year of

the date the judgment becomes final[.]”       42 Pa.C.S.A. § 9545(b)(1).      A

judgment becomes final for PCRA purposes “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.” 42 Pa.C.S.A. § 9545(b)(3).

        Here, the Pennsylvania Supreme Court affirmed the judgment of

sentence on December 17, 1981.           Therefore, Appellant’s judgment of

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sentence became final on February 15, 1982, after the sixty-day period to

file a petition for a writ of certiorari with the United States Supreme Court

expired. See U.S.Sup.Ct.R. 20 (former).

      Because Appellant did not file his petition until March 28, 2016, the

petition is facially untimely. Thus, to obtain PCRA relief, he must plead and

prove that his claim falls under one of the statutory exceptions to the one-

year time bar provided at section 9545(b).             See 42 Pa.C.S.A. §

9545(b)(1)(i)-(iii).

      Section 9545 provides that the court can still consider an untimely

petition where the petitioner successfully pleads and proves that:

            (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.

      Further, a petitioner who wishes to invoke any of the above exceptions

must file the petition “within [sixty] days of the date the claim could have

been presented.”       Id. at § 9545(b)(2).   The Pennsylvania Supreme Court

has repeatedly stated that it is an appellant’s burden to plead and prove that

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one   of   the    above-enumerated     exceptions    applies.     See,    e.g.,

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert.

denied, 555 U.S. 916 (2008).

      Here, Appellant seeks to invoke the newly-discovered facts exception,

(see Appellant’s Brief, at 1-5), codified at 42 Pa.C.S.A. § 9545(b)(1)(ii), and

discussed in the Pennsylvania Supreme Court’s decision in Commonwealth

v. Bennett, 930 A.2d 1264 (Pa. 2007), which held that this exception refers

not to after-discovered evidence, but to facts that were previously unknown

to the petitioner. See Bennett, supra at 1270. The Court in Bennett also

held, in accord with the statutory language, that an appellant must prove

that the facts upon which the claim is predicated could not have been

ascertained earlier through the exercise of due diligence. See id. at 1272;

see also Commonwealth v. Taylor, 933 A.2d 1035, 1040-41 (Pa. Super.

2007), appeal denied, 951 A.2d 1163 (Pa. 2008).

      Specifically, Appellant asserts that scientific studies discussed in the

United States Supreme Court’s decision in Miller v. Alabama, 132 S.Ct.

2455 (2012), are newly discovered evidence that he “suffered from a

lessened state of culpability at nineteen [] years of age due to his mental

infirmities and was no different than a [seventeen] year old offender.”

(Appellant’s Brief, at 4).

      However, in a recent decision, Commonwealth v. Furgess, 149 A.3d

90 (Pa. Super. 2016), a panel of this Court rejected this theory, albeit in the


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context of a claim raised under 42 Pa.C.S.A. § 9545(b)(1)(iii) rather than

(ii). We stated:

           Appellant argues that he[, despite being nineteen years old
     at the time of the murder,] 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.

            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)[, appeal denied, 81 A.3d 75 (Pa.
     2013)]. The defendants in Cintora were [nineteen] and [twenty-
     one] 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 such an expansion of the right] timely
     pursuant to section 9545(b)(1)(iii).” Id. [].

Furgess, supra at 94 (record citation and emphasis omitted).

     While, as noted, Furgess concerned a claim brought under 42

Pa.C.S.A. § 9545(b)(1)(iii), we see no reason that its holding is not equally

applicable to a claim brought under Section 9545(b)(1)(ii).            See id.

Appellant likewise attempts to extend the holdings in Montgomery and

Miller to individuals over age eighteen based upon scientific studies

regarding brain maturation and we have held such a claim cannot succeed.

Appellant’s argument must fail.




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      Appellant also challenges the legality of his sentence. (See Appellant’s

Brief, at 6-8).   However, this does not allow him to evade the PCRA’s

timeliness requirements. In Commonwealth v. Fahy, 737 A.2d 214 (Pa.

1999), the Pennsylvania Supreme Court rejected this contention. The Fahy

Court stated, “[a]lthough legality of sentence is always subject to review

within the PCRA, claims must still first satisfy the PCRA’s time limits or one

of the exceptions thereto.” Id. at 223 (citation omitted). Thus, Appellant

cannot elude the PCRA’s timeliness requirements based on a claim of an

illegal sentence. See id.

      Therefore, because the record demonstrates that Appellant’s PCRA

petition is untimely with none of the statutory exceptions to the time bar

proven, we affirm the order of the court dismissing Appellant’s serial PCRA

petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/12/2017




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