J-S04039-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHAEL LEE BOURGEOIS, :
:
Appellant : No. 1248 MDA 2014
Appeal from the PCRA Order Entered July 7, 2014
in the Court of Common Pleas of Lancaster County,
Criminal Division, at No(s): CP-36-CR-0004224-2001
and CP-36-CR-0004975-2001
BEFORE: BOWES, ALLEN, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 31, 2015
Michael Lee Bourgeois (Appellant) appeals from the July 7, 2014 order
which dismissed his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
When Appellant was 17 years old, he killed Terry and Lucy Smith. In
2003, Appellant entered into a negotiated guilty plea whereby he pled guilty
to, inter alia, two counts of first-degree murder, and he received consecutive
sentences of life imprisonment without possibility of parole. He filed no
direct appeal and was denied relief on his first two PCRA petitions.
In 2012, Appellant filed the instant PCRA petition, which the PCRA
court dismissed as untimely filed by order of July 7, 2014. Appellant timely
filed a notice of appeal. The PCRA court did not require Appellant to file a
*Retired Senior Judge assigned to the Superior Court.
J-S04039-15
statement of errors complained of on appeal, and none was filed. The PCRA
court has filed an opinion pursuant to Pa.R.A.P. 1925(a).
Appellant presents three questions for this Court’s review:
A. Whether the [PCRA] court erred in denying Appellant’s
PCRA petition as untimely where Miller v. Alabama[1]
should be applied retroactively to [Appellant] where he is
proceeding under the [PCRA].
B. Whether Pennsylvania’s mandatory life without parole
sentencing scheme for juveniles convicted of murder (first
or second degree) is unconstitutional under the U.S. and
Pennsylvania Constitutions.
C. Whether [Appellant] should be re-sentenced under Act 204
of 2012.
Appellant’s Brief at 4 (unnecessary capitalization, suggested answers, and
trial court answers omitted).
Before we consider the merits of Appellant’s arguments, we must
determine whether his PCRA petition was timely filed. “[T]he timeliness of a
PCRA petition is a jurisdictional requisite.” Commonwealth v. Williams,
35 A.3d 44, 52 (Pa. Super. 2011). “Generally, to obtain merits review of a
PCRA petition filed more than one year after a petitioner’s sentence became
final, the petitioner must allege and prove at least one of the three
timeliness exceptions.” Id.
1
132 S.Ct. 2455 (2012), wherein the United States Supreme Court held that
the federal Constitution prohibits the mandatory imposition on juveniles of
life sentences without possibility of parole.
-2-
J-S04039-15
Here, Appellant attempted to invoke the timeliness exception found at
42 Pa.C.S. § 9545(b)(1)(iii). PCRA Petition, 8/9/2012, at 3-4. That
subsection provides that a petition may be filed more than one year after a
judgment becomes final if a petitioner pleads and proves that “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)(iii). Appellant claims that in Miller,
the United States Supreme Court recognized a new right under the United
States Constitution that must be applied retroactively. Appellant’s Brief at
10. In the alternative, Appellant argues that Article I, Section 13 of the
Pennsylvania Constitution provides an independent basis for relief. Id. at
12. We disagree.
Subsection (iii) of Section 9545[(b)(1)] has two requirements.
First, it provides that 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 provided
in this section. Second, it provides that the right “has been
held” by “that court” to apply retroactively. Thus, a petitioner
must prove that there is a “new” constitutional right and that the
right “has been held” by that court to apply retroactively. The
language “has been held” is in the past tense. These words
mean that the action has already occurred, i.e., “that court” has
already held the new constitutional right to be retroactive to
cases on collateral review. By employing the past tense in
writing this provision, the legislature clearly intended that the
right was already recognized at the time the petition was filed.
-3-
J-S04039-15
Commonwealth v. Seskey, 86 A.3d 237, 242-43 (Pa. Super. 2014)
(quoting Commonwealth v. Copenhefer, 941 A.2d 646, 649–50 (Pa.
2007)).
The United States Supreme Court did not indicate in Miller whether its
decision applies retroactively. In Commonwealth v. Cunningham, 81
A.3d 1 (Pa. 2013), cert. denied, 134 S.Ct. 2724 (2014), our Supreme Court
held that the right recognized in Miller does not apply retroactively. Thus,
Appellant cannot use the Miller decision to satisfy the requirements of
subsection 9545(b)(1)(iii).
Further, Appellant cites to no case in which our Supreme Court has
recognized a new, retroactively-applicable right under Article I, Section 13 of
the Pennsylvania Constitution. Therefore, Appellant cannot use this claim to
sustain his burden as to subsection 9545(b)(1)(iii). See Seskey, 86 A.3d at
243 (holding that it could not consider the substance of the appellant’s
claims under Article I, Section 13 of the Pennsylvania Constitution given the
language of subsection 9545(b)(1)(iii) and Cunningham).
Because Appellant did not plead facts that would establish an
exception to the PCRA’s timeliness requirements, the PCRA court lacked
jurisdiction to address the merits of his petition and properly dismissed it
without a hearing.
Order affirmed.
-4-
J-S04039-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/31/2015
-5-