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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN F. NOLE
Appellant No. 744 EDA 2015
Appeal from the PCRA Order March 2, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0915321-1969
BEFORE: DONOHUE, J., MUNDY, J., and MUSMANNO, J.
JUDGMENT ORDER BY MUNDY, J.: FILED NOVEMBER 24, 2015
Appellant, John F. Nole, appeals pro se from the March 2, 2015 order
denying as untimely his seventh petition for relief filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful
review, we affirm.
On March 31, 1971, the trial court imposed an aggregate sentence of
life imprisonment without the possibility of parole for first-degree murder1
and other offenses, committed by Appellant when he was 17-years-old, in
the course of a robbery and murder of an 81-year-old man. Our Supreme
Court affirmed Appellant’s judgment of sentence on July 11, 1972.
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1
18 Pa.C.S.A. § 2502(a).
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Commonwealth v. Nole, 292 A.2d 331 (Pa. 1972). Thereafter, Appellant
filed six PCRA petitions between 1972 and 2008. See Commonwealth v.
Nole, 965 A.2d 299 (Pa. Super. 2008) (affirming the PCRA court’s dismissal
of Appellant’s sixth PCRA as untimely, and setting forth a full factual and
procedural history of Appellant’s PCRA claims), appeal denied 973 A.2d 1006
(Pa. 2009).
On July 12, 2010, Appellant filed, pro se, a patently untimely PCRA
petition that is the subject of this appeal. See 42 Pa.C.S.A. § 9545(b)(1)
(providing that a PCRA petition must be filed within one year of the date the
judgment becomes final). After a series of amended petitions, the PCRA
court issued a notice to dismiss the petition without a hearing pursuant to
Pennsylvania Rule of Criminal Procedure 907 on December 12, 2014.
Appellant did not file a response. On March 2, 2015, the PCRA court denied
Appellant’s PCRA petition as untimely. Appellant timely filed, pro se, a
notice of appeal on March 9, 2015.2
Here, the PCRA court lacked jurisdiction to consider the merits of
Appellant’s untimely PCRA petition unless one “of the three limited
exceptions to the time for filing the petition, set forth at 42 Pa.C.S.A.
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2
The PCRA court did not order Appellant to file a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). The PCRA court adopted its March 2, 2015 opinion for
purposes of Rule 1925(a).
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§ 9545(b)(1)(i), (ii), and (iii), [apply].” Commonwealth v. Lawson, 90
A.3d 1, 5 (Pa. Super. 2014) (citation omitted). In an attempt to plead one
of the time-bar exceptions, Appellant argues that the United States Supreme
Court’s decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), applies
retroactively to his case. Appellant’s Brief at 10. Even if we were to
construe this issue as arguing that a time-bar exception applies, our
Supreme Court has rejected this retroactivity argument.3 See generally 42
Pa.C.S.A. § 9545(b)(1)(iii); Commonwealth v. Cunningham, 81 A.3d 1,
11 (Pa. 2013), cert. denied, Cunningham v. Pennsylvania, 134 S. Ct.
2724 (2014). As a result, the PCRA court lacked jurisdiction to consider the
merits of Appellant’s claims.
Based on the foregoing, we conclude the PCRA court properly
dismissed Appellant’s seventh PCRA petition as untimely. Accordingly, the
PCRA court’s March 2, 2015 order is affirmed.
Order affirmed.
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3
On March 23, 2015, the Supreme Court granted certiorari in Montgomery
v. Louisiana, 135 S. Ct. 1546 (2015), which presents the Miller
retroactivity question. Nonetheless, until the United States Supreme Court
issues its decision, Cunningham remains dispositive of the issue in
Pennsylvania.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/24/2015
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