J-S64016-16
2016 PA Super 219
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ROBERT FURGESS
Appellant No. 448 EDA 2016
Appeal from the Order Dated January 6, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0132171-1989
BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*
OPINION BY SOLANO, J.: FILED SEPTEMBER 28, 2016
Appellant, Robert Furgess, appeals pro se from the order dismissing
his second petition filed pursuant to the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546. The PCRA court found Appellant’s petition to be
untimely and therefore not within its jurisdiction. Upon review, we affirm.
At the conclusion of a bench trial on October 27, 1989, Appellant was
convicted of first-degree murder and possession of an instrument of crime
(PIC).1 The trial court sentenced Appellant to life imprisonment for the
murder conviction, and a concurrent term of one to two years’ imprisonment
for the PIC conviction. Appellant filed a timely appeal, and this Court
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2502(a);18 Pa.C.S. § 907(b).
J-S64016-16
affirmed his judgment of sentence on October 9, 1991. Commonwealth v.
Furgess (Pa. Super. Oct. 9, 1991) (unpublished memorandum). Appellant
did not file a petition for allowance of an appeal by the Supreme Court of
Pennsylvania.2
Appellant unsuccessfully sought post-conviction relief in his first PCRA
petition filed on December 10, 1996.3 Appellant filed the PCRA petition at
issue in this appeal on August 8, 2012. On December 4, 2015, the PCRA
court issued a Criminal Rule 907 notice of intent to dismiss this petition on
the basis that it was untimely and Appellant had failed to plead an exception
to the PCRA’s time bar. Appellant did not file a response. By an order
entered on January 6, 2016, the PCRA court denied Appellant’s petition.
This appeal followed.
On appeal, Appellant raises one issue for our review:
____________________________________________
2
Appellant states “Allocatur was denied.” Appellant’s Brief at vii.
Conversely, the Commonwealth states that Appellant “did not seek allocatur
in the Supreme Court of Pennsylvania.” Commonwealth’s Brief at 6. Our
review of the certified record discloses that the Commonwealth is correct,
and Appellant did not seek allocatur.
3
Initially, the PCRA court denied relief, Appellant appealed, and this Court
issued a decision reversing and remanding so that Appellant’s counsel could
“review appellant’s amended PCRA petition and submit an amended ‘no
merit’ letter or, alternatively, an amended PCRA petition.” Commonwealth
v. Furgess (Pa. Super. July 20, 1999) (unpublished memorandum). After
remand, the PCRA court denied Appellant’s petition without a hearing,
Appellant appealed, and this Court affirmed. Commonwealth v. Furgess
(Pa. Super. May 21, 2001) (unpublished memorandum).
-2-
J-S64016-16
DID THE PCRA COURT COMMIT AN ERROR OF LAW WHERE IT
FAILED TO CONCLUDE THAT PETITIONER’S MANDATORY
SENTENCE OF LIFE WITHOUT PAROLE IS UNCONSTITUTIONAL
UNDER THE 8TH AMENDMENT TO THE UNITED STATES
CONSTITUTION AS EXPRESSED IN MILLER V. ALABAMA?
Appellant’s Brief at vi.
Before considering the merits of Appellant’s claims, we must first
determine whether the PCRA court correctly concluded that because
Appellant’s second PCRA petition was not filed within the time limits required
by the PCRA, the court lacked jurisdiction to consider the petition. See
PCRA Court Opinion, 1/6/16, at 2-3.
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
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
is final unless the petition alleges and the petitioner proves one of the three
exceptions to the time limitations for filing the petition set forth in Section
9545(b)(1) of the statute.4 See 42 Pa.C.S. § 9545(b). A PCRA petition
____________________________________________
4
The three exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference of 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.
(Footnote Continued Next Page)
-3-
J-S64016-16
invoking one of these statutory exceptions must “be filed within 60 days of
the date the claims could have been presented.” See Hernandez, 79 A.3d
at 651-52; see also 42 Pa.C.S. § 9545(b)(2). Asserted exceptions to the
time restrictions for the PCRA must be included in the petition, and may not
be raised for the first time on appeal. Commonwealth v. Burton, 936
A.2d 521, 525 (Pa. Super. 2007). This Court’s standard of review regarding
an order dismissing a petition under the PCRA is “to determine whether the
determination of the PCRA court is supported by the evidence of record and
is free of legal error.” Commonwealth v. Barndt, 74 A.3d 185, 191-92
(Pa. Super. 2013) (citations omitted).
Here, Appellant’s judgment of sentence became final on November 8,
1991, when the thirty-day time period for filing an allocatur petition with our
Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3). As Appellant filed
the PCRA petition at issue here on August 8, 2012 — more than twenty
years after his judgment of sentence became final — it is patently untimely
_______________________
(Footnote Continued)
(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. § 9545(b)(1).
-4-
J-S64016-16
unless he has satisfied his burden of pleading and proving that one of the
enumerated exceptions applies. See Hernandez, 79 A.3d at 651.5
In this PCRA petition, Appellant acknowledged the statutory time bar
and conceded that his petition is untimely if no exception applies. PCRA
Petition, 8/12/12, at 2-3. However, Appellant asserted an exception to the
time bar under 42 Pa.C.S. § 9545(b)(1)(iii), which provides that a petitioner
may seek relief when there is “a constitutional right that was recognized by
the U.S. Supreme Court 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. In his petition, Appellant relied on the U.S. Supreme
Court’s decision in Miller v. Alabama, 132 S. Ct. 2455, 2460 (2012), which
held that a sentence of life imprisonment without the possibility of parole is
unconstitutionally cruel and unusual punishment when imposed upon
defendants convicted of murder who were “under the age of 18 at the time
of their crimes.” Similarly, in his brief to this Court, Appellant invokes
Section 9545(b)(1)(iii), based on his contention that he is entitled to relief
under Miller and the Supreme Court’s recent decision in Montgomery v.
Louisiana, 136 S. Ct. 718 (2016), which held that its decision in Miller
____________________________________________
5
Because his judgment of sentence became final prior to the 1995
amendments to the PCRA, which added the time restrictions, Appellant was
permitted to file his first PCRA petition by January 16, 1996. See
generally Commonwealth v. Crawley, 739 A.2d 108 (Pa. 1999).
-5-
J-S64016-16
applies retroactively to cases on state collateral review. Appellant’s Brief at
1-9.6
To invoke any of the time bar exceptions in Section 9545(b)(1),
Appellant was required to file his petition relying on that exception “within
60 days of the date the claim [under the exception] could have been
presented.” 42 Pa. C.S. § 9545(b)(2). Here, if Appellant’s petition actually
presented a valid claim under Miller v. Alabama, Appellant would have met
that 60-day deadline because Miller was decided on June 25, 2012, and
Appellant filed his PCRA petition less than 60 days later, on August 8, 2012.
See generally Commonwealth v. Secreti, 134 A.3d 77, 82 (Pa. Super.
2016). But even though he filed within 60 days of the Miller decision,
Appellant’s petition did not satisfy the jurisdictional requirements of Section
9545 because the petition did not present a claim falling within the ambit of
the Supreme Court’s decision in Miller and therefore does not fall under the
“newly recognized constitutional right” exception in Section 9545(b)(1)(iii).
The Miller decision applies to only those defendants who were “under
the age of 18 at the time of their crimes.” 132 S. Ct. at 2460. Both
Appellant’s PCRA petition and his appellate brief acknowledge that Appellant
“was 19 years old at the time of his offenses.” See PCRA Petition, 8/8/12,
____________________________________________
6
The PCRA Court issued its decision three weeks before the U.S. Supreme
Court decided Montgomery.
-6-
J-S64016-16
at 4; Appellant’s Brief at vii. In this regard, the PCRA court noted that
Appellant’s birth date is December 3, 1968, and the murder occurred on
August 28, 1988, “making him nineteen years old on the date of the
murder.” PCRA Court Opinion, 1/6/16, at 2, n.3. The PCRA court therefore
concluded that Appellant’s “reliance on the Miller case for relief is
misplaced” because Appellant, “[b]y his own admission, was nineteen years
old when he committed the crime.” Id. at 3. We agree.
Appellant argues that he 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. See Appellant’s Brief
at 3-7.
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). The defendants in Cintora were 19 and 21 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
-7-
J-S64016-16
such an expansion of the right] timely pursuant to section 9545(b)(1)(iii).”
Id. (emphasis in original).
We also pointed out in Cintora that the right recognized in Miller had
not been held to apply retroactively at the time of that decision and that its
non-retroactivity would have been an alternative basis for denial of relief.
69 A.3d at 764 n.4. Because the U.S. Supreme Court in Montgomery has
since held that Miller does apply retroactively, this second reason stated in
the Cintora opinion is no longer good law. However, 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).
Accordingly, Cintora remains controlling on this issue, and Appellant’s
assertion of the time-bar exception at Section 9545(B)(1)(iii) must be
rejected.
In sum, the PCRA court correctly concluded that it lacked jurisdiction
to consider Appellant’s untimely PCRA petition. We therefore affirm the
PCRA court’s order denying Appellant post-conviction relief.
Order affirmed.
-8-
J-S64016-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2016
-9-