J-S39043-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                  Appellee                 :
          v.                               :
                                           :
RANDALL HOYT CHUMLEY,                      :
                                           :
                  Appellant                :   No. 281 WDA 2017

                  Appeal from the PCRA Order January 26, 2017,
                in the Court of Common Pleas of Lawrence County,
               Criminal Division, at No(s): CP-37-MD-0000375-1976

BEFORE:        BENDER, P.J.E., BOWES, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                         FILED JULY 07, 2017

      Randall Hoyt Chumley (Appellant) pro se appeals from the January 26,

2017 order which denied his petition for relief filed pursuant to the Post

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

      “On October 13, 1976, Appellant pleaded guilty to murder generally

and, following a degree of guilt hearing, the trial court found Appellant guilty

of second-degree murder. On November 2, 1976, the trial court sentenced

Appellant to a term of life in prison.” Commonwealth v. Chumley, 93 A.3d

501 (Pa. Super. 2013) (unpublished memorandum at 1).            “Our Supreme

Court affirmed Appellant’s judgment of sentence on November 18, 1978

and, on March 19, 1979, the United States Supreme Court denied

Appellant’s petition for writ of certiorari.” Id. See Commonwealth v.

Chumley, 394 A.2d 497 (Pa. 1978), certiorari denied, 440 U.S. 966 (1979).




*Retired Senior Judge assigned to the Superior Court.
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      On August 9, 2016, Appellant filed his fifth PCRA petition, which is the

subject of this appeal.     The PCRA court appointed counsel, who filed an

amended petition.     After giving notice of its intent to dismiss the petition

without a hearing pursuant to Pa.R.Crim.P. 907, the PCRA court dismissed

the petition by order of January 26, 2017.

      Appellant timely filed a notice of appeal, and both Appellant and the

PCRA court complied with Pa.R.A.P. 1925. On appeal, Appellant raises three

substantive claims for relief. See Appellant’s Brief at v.

      Before we may consider the merits of Appellant’s claims, we must

determine whether his PCRA petition was timely filed, as the timeliness of a

post-conviction petition is jurisdictional.   Commonwealth v. Robinson, 12

A.3d 477, 479 (Pa. Super. 2011).       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 of sentence is final unless the petition alleges,

and the petitioner proves, that an exception to the time for filing the petition

is met. 42 Pa.C.S. § 9545.

      It is clear that Appellant’s petition is facially untimely; his judgment of

sentence became final in 1979. However, Appellant alleges that his petition

is based upon a change in the law, referencing Miller v. Alabama, 567 U.S.

460, 132 S. Ct. 2455 (2012) and Montgomery v. Louisiana, 136 S.Ct. 718

(2016). Appellant’s Brief at 3. Thus, it appears that Appellant is alleging

that the following timeliness exception applies: “the right asserted is a


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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)(iii).

      In Miller, the Court held that the application of mandatory sentences

of life imprisonment without possibility of parole to individuals who were

juveniles at the time they committed homicides was unconstitutional.

Miller, 567 U.S. at __, 132 S. Ct. at 2464.          In Montgomery, the Court

determined that Miller announced a new substantive rule of law that applies

retroactively. Montgomery, 136 S. Ct. at 736.

      Appellant was not a juvenile at the time of the murder; rather, he was

19 years old. See Appellant’s Brief at 3 (“Appellant alleges that [a]lthough

19 at the time of the commission of the crime….”). Accordingly, Miller and

Montgomery       are   not     applicable     to   Appellant’s   petition.   See

Commonwealth v. Furgess, 149                A.3d 90, 94      (Pa. Super. 2016)

(“[P]etitioners 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 Appellant did not plead facts that would establish an

exception to the PCRA’s timeliness requirements, the PCRA court properly

dismissed    Appellant’s     petition   without    holding   a   hearing.    See


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Commonwealth v. Albrecht, 994 A.2d 1091, 1095 (Pa. 2010) (affirming

dismissal of PCRA petition without a hearing because the appellant failed to

meet burden of establishing timeliness exception).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/7/2017




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