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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
PERRY POOLE
Appellant No. 1913 EDA 2016
Appeal from the PCRA Order May 18, 2016
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0327791-1990
BEFORE: PANELLA, SOLANO, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 01, 2017
Appellant, Perry Poole, appeals from the order dismissing his third Post
Conviction Relief Act1 (“PCRA”) petition as untimely. Appellant claims he is
entitled to relief pursuant to the United States Supreme Court’s decisions in
Montgomery v. Louisiana, 136 S. Ct. 718 (2016), and Miller v. Alabama,
132 S. Ct. 2455 (2012), even though he was over eighteen years old at the
time of the offense. We affirm.
The PCRA court has summarized the factual and procedural history
underlying this appeal, which we adopt for the purposes of this appeal. See
PCRA Ct. Op., 8/31/16, at 1-4. Of relevance to this appeal, we note that
Appellant was over eighteen when he committed the offenses of first-degree
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
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murder, robbery, conspiracy, and possession of an instrument of crime on
December 9, 1989.2 Following a jury trial, Appellant was found guilty and
sentenced to a term of life imprisonment. This Court affirmed the judgment
of sentence on July 1, 1993, and the Pennsylvania Supreme Court denied
allowance of appeal on October 27, 1993. Appellant filed his first two PCRA
petitions on November 2, 1999, and June 28, 2006, respectively, and both
petitions were denied.
Appellant, acting pro se, filed the instant third PCRA petition on July
13, 2010, seeking relief from the sentence of life imprisonment based on
Graham v. Florida, 560 U.S. 48 (2010). Appellant filed pro se a
supplemental memorandum of law on July 25, 2012, discussing the United
States Supreme Court’s decision in Miller, as well as several amended
petitions. On June 18, 2014, the PCRA court issued a Pa.R.Crim.P. 907
notice of its intent to dismiss the petition. Appellant responded pro se. On
February 16, 2016, Appellant filed a pro se supplemental petition citing the
January 25, 2016 decision of the United States Supreme Court in
Montgomery.
On May 18, 2016, the PCRA court dismissed Appellant’s petition and
supplemental petitions as untimely. Appellant timely appealed. The court
did not order the submission of a Pa.R.A.P. 1925(b) statement.
Appellant presents the following questions for our review:
2
Appellant’s date of birth is listed as January 13, 1971.
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1. Whether the PCRA Court err[ed] in denying [Appellant’s]
PCRA [petition] without an hearing?
2. Whether Appellant is entitled to have his
unconstitutional life sentence vacated in light of Art. 5, §
(q)(ii), under Pennsylvania’s Constitution and
Montgomery . . . ?
Appellant’s Brief at 4. Appellant contends that his mandatory life sentence
constitutes cruel and unusual punishment. He further argues that Miller
and Montgomery afford him relief from the PCRA time-bar because those
decisions created a new constitutional right. Id. at 6. He claims that the
principles set forth in Miller and Montgomery should apply to him even
though he was not under eighteen when he committed the offenses. Id. at
8-10. No relief is due.
“Our standard of review of a PCRA court’s dismissal of a PCRA petition
is limited to examining whether the PCRA court’s determination is supported
by the evidence of record and free of legal error.” Commonwealth v.
Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).
As our Supreme Court has explained:
the PCRA timeliness requirements are jurisdictional in
nature and, accordingly, a PCRA court is precluded from
considering untimely PCRA petitions. We have also held
that even where the PCRA court does not address the
applicability of the PCRA timing mandate, th[e] Court will
consider the issue sua sponte, as it is a threshold question
implicating our subject matter jurisdiction and ability to
grant the requested relief.
Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (citations
omitted).
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A PCRA petition “must normally be filed within one year of the date the
judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-
(iii) applies and the petition is filed within 60 days of the date the claim
could have been presented.” Commonwealth v. Copenhefer, 941 A.2d
646, 648 (Pa. 2007) (some citations and footnote omitted). The three
exceptions to the general one-year time limitation are:
(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. § 9545(b)(1)(i)-(iii).
Instantly, there is no dispute that Appellant’s July 13, 2010 petition
was untimely on its face. Nevertheless, Appellant filed his supplemental
petition within sixty days of Montgomery, which held that Miller
announced a retroactive rule of constitutional law. Montgomery, 136 S. Ct.
at 724. However, Appellant was more than eighteen years old at the time
he committed the offenses. Therefore, the right recognized by Miller and
held to be retroactive in Montgomery does not provide Appellant a basis for
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relief from the PCRA time bar. See Miller, 132 S. Ct. at 2460 (holding
mandatory life without parole sentences for individuals under eighteen at
the time of their crimes are unconstitutional); Commonwealth v. Furgess,
149 A.3d 90, 94 (Pa. Super. 2016) (noting “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)”). Thus, no relief is
due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2017
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