J-S31030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 TERRELL FAULCON                          :
                                          :
                    Appellant             :   No. 3269 EDA 2017

              Appeal from the PCRA Order September 12, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0308001-1995


BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                            FILED JUNE 12, 2018

      Terrell Faulcon appeals, pro se, from the order of the Court of Common

Pleas of Philadelphia County dismissing as untimely his petition under the Post

Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”). We affirm.

      On September 25, 1996, a jury convicted Faulcon of one count each of

first-degree murder, conspiracy and possession of instruments of crime

(“PIC”). Faulcon was sentenced to a mandatory term of life imprisonment for

the murder conviction, followed by consecutive terms of imprisonment of five

to ten years for conspiracy and two to five years for PIC. This Court affirmed

his judgment of sentence on April 6, 2000.      On November 21, 2000, our

Supreme Court denied Faulcon’s application for permission to file a petition

for allowance of appeal nunc pro tunc.

      Faulcon filed a pro se PCRA petition on April 9, 2001. Counsel filed an

amended petition on October 22, 2001, which was denied by the PCRA court
J-S31030-18



on June 17, 2002. This Court affirmed the PCRA court’s order on June 18,

2003, and our Supreme Court denied allowance of appeal on March 30, 2004.

       Faulcon filed the instant PCRA petition, pro se, on August 20, 2012. On

June 20, 2017,1 the PCRA court issued a notice of intent to dismiss pursuant

to Pa.R.Crim.P. 907. Faulcon filed objections to the court’s Rule 907 notice.

The court dismissed Faulcon’s petition on September 12, 2017. This timely

appeal follows, in which Faulcon asserts that the PCRA court erred in

dismissing his petition as untimely.2

       We begin by noting that:

       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 evidence of record and is free of legal error.
       In evaluating a PCRA court’s decision, our scope of review is
       limited to the findings of the PCRA court and the evidence of
       record, viewed in the light most favorable to the prevailing party
       at the trial level.

Commonwealth v. Weatherill, 24 A.3d 435, 438 (Pa. Super. 2011).

       A PCRA petition, including a second or subsequent petition, must be filed

within one year of the date the underlying judgment of sentence becomes

final. See 42 Pa.C.S.A. § 9545(b)(1); see also Commonwealth v. Bretz,

830 A.2d 1273, 1275 (Pa. Super. 2003). A judgment is deemed final “at the

conclusion of direct review, including discretionary review in the Supreme
____________________________________________


1It is unclear from the certified record why the PCRA court took nearly five
years to rule on Faulcon’s petition.

2The PCRA court did not order Faulcon to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal and he did not do so.


                                           -2-
J-S31030-18



Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3); see also

Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super. 2006). Here,

Faulcon’s’ judgment of sentence became final on or about May 6, 2000, upon

the expiration of time for seeking allowance of appeal to the Pennsylvania

Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113(a). Thus,

Faulcon had one year from that date, or until May 6, 2001, to file a timely

PCRA petition. See 42 Pa.C.S.A. § 9545(b). Faulcon did not file the instant

petition, his second, until August 20, 2012, more than twelve years after his

judgment of sentence became final.             Accordingly, the PCRA court had no

jurisdiction to entertain Faulcon’s petition unless he pleaded and proved one

of the three statutory exceptions to the time bar.3           See 42 Pa.C.S.A. §

9545(b)(1). A petition invoking one of the exceptions must be filed within

____________________________________________


3   The statutory exceptions to the time bar are as follows:

        (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.A. § 9545(b)(1)(i)-(iii).

                                           -3-
J-S31030-18



sixty days of the date the claim could have been presented. 42 Pa.C.S.A. §

9545(b)(2).

      Faulcon attempts to circumvent the time bar by asserting the “newly

recognized constitutional right” exception under subsections 9545(b)(1)(iii).

Specifically, Faulcon asserts that he is entitled to relief pursuant to

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

567 U.S. 460 (2012). In Miller, the Supreme Court held that mandatory life

imprisonment without parole for those under the age of 18 at the time of their

crimes violates the Eighth Amendment’s prohibition on cruel and unusual

punishment. In Montgomery, the Court held that Miller announced a new

substantive constitutional rule that applied retroactively on state collateral

review. Although Faulcon concedes that he was over the age of 18 at the time

he committed his crime, he claims that Miller should apply to him on equal

protection grounds, arguing that

      [e]veryone with an immature brain is similarly situated in
      comparison to adults with mature brains. Therefore, it would be
      a violation of equal protection for the courts to treat anyone with
      an immature brain as an adult, whether their brain is immature
      because they are 17, 24, or if their maturity has been delayed
      beyond age 25 by chronic traumatic abuse.

Brief of Appellant, at 9.   Faulcon is not entitled to relief.

      It is undisputed that Faulcon committed his crime at the age of 24. The

Supreme Court’s ruling in Miller applies solely to defendants who had not

reached the age of majority, or eighteen years of age, at the time they

committed their crime.      Accordingly, on its face, Miller is inapplicable to


                                        -4-
J-S31030-18



Faulcon’s case. Moreover, we have previously rejected an equal protection

claim identical to that proffered by Faulcon, concluding that a “contention that

a newly-recognized constitutional right should be extended to others does not

render   [a]    petition   timely   pursuant   to   section    9545(b)(1)(iii).”

Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super. 2013). See also

Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016) (“nothing in

Montgomery undermines Cintora's holding 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)”).

Because Faulcon has not established one of the exceptions to the PCRA time

bar, the PCRA court properly dismissed his petition as untimely.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/18




                                     -5-
