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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
TYRONE RICHARDSON,
Appellant No. 3430 EDA 2016
Appeal from the PCRA Order Entered September 30, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0412141-1984
BEFORE: BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 06, 2017
Appellant, Tyrone Richardson, appeals pro se from the post-conviction
court’s September 30, 2016 order dismissing, as untimely, his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-
9546. Because we lack jurisdiction due to the untimeliness of Appellant’s
petition, we affirm.
We briefly describe the procedural history underlying this appeal as
follows. On August 1, 1984, following a jury trial, Appellant was convicted of
first degree murder, robbery, and possession of an instrument of crime. On
April 19, 1985, Appellant was sentenced to life imprisonment for his
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conviction of first degree murder.1 On May 7, 1985, Appellant filed a timely
notice of appeal to this Court. This Court affirmed Appellant’s judgment of
sentence on June 23, 1987. Commonwealth v. Richardson, 1199
Philadelphia 1985 (Pa. Super. 1987) (unpublished memorandum). Appellant
did not file a petition for allowance of appeal with our Supreme Court.
Therefore, his judgment of sentence became final on July 23, 1987. See 42
Pa.C.S. § 9545(b)(3) (stating that judgment of sentence becomes final at
the conclusion of direct review or the expiration of the time for seeking the
review); Pa.R.A.P. 1113(a) (“[A] petition for allowance of appeal shall be
filed with the Prothonotary of the Supreme Court within 30 days after the
entry of the order of the Superior Court or the Commonwealth Court sought
to be reviewed.”).
On August 22, 2012, Appellant filed, pro se, the PCRA petition at issue,
which was his first petition under the PCRA or its predecessor, the Post
Conviction Hearing Act.2 In that petition, Appellant — who was 23 years old
at the time he committed the underlying crimes — asserted, pursuant to
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1
He received a consecutive sentence of 2½ to 5 years’ imprisonment for his
robbery conviction, and a concurrent sentence of 2½ to 5 years’
imprisonment for his possession of an instrument of crime conviction.
2
This Court and the PCRA court have both acknowledged that there appears
to be no evidence in the certified record of a prior post-conviction relief
petition filed by Appellant. See Commonwealth v. Richardson, 2719 EDA
2014, judgment order per curiam at 2 n.2 (Pa. Super. filed July 30, 2015);
PCRA Court Opinion (PCO), 11/21/2016, at 1 n.1.
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Miller v. Alabama, 132 S.Ct. 2455 (2012), that “mandatory-life-without
parole terms for individuals 18 to 25 years of age in homicide cases”
violates, inter alia, the United States Constitution’s Eighth and Fourteenth
Amendments. See PCRA Petition, 8/22/2012, at 1-7 (unnecessary
capitalization omitted). On August 12, 2014, the PCRA court dismissed
Appellant’s petition as untimely, and Appellant subsequently filed a timely
notice of appeal. On July 30, 2015, in a judgment order per curiam, this
Court vacated the PCRA court’s order and remanded the matter because the
PCRA court had failed to appoint counsel to represent Appellant on his first
PCRA petition. Richardson, 2719 EDA 2014, judgment order per curiam at
2-3.
Thereafter, the PCRA court appointed Attorney Stephen O’Hanlon to
represent Appellant. On June 1, 2016, Attorney O’Hanlon filed a
Turner/Finley3 “no-merit” letter and a motion to withdraw as counsel. In
his no-merit letter, Attorney O’Hanlon explained that Miller, 132 S.Ct. at
2460 (stating that “mandatory life without parole for those under the age of
18 at the time of their crimes violates the Eighth Amendment’s prohibition
on ‘cruel and unusual punishments’”), and Montgomery v. Louisiana, 136
S.Ct. 718 (2016) (holding that Miller applies retroactively), do not apply to
Appellant, as he was 23 years old at the time he committed the underlying
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3
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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crimes and, consequently, Appellant does not meet a timeliness exception
under 42 Pa.C.S. § 9545(b)(1). On July 22, 2016, the PCRA court gave
notice pursuant to Pa.R.Crim.P. 907 that it intended to dismiss Appellant’s
petition. Appellant did not respond. On September 30, 2016, the PCRA
court dismissed the petition and granted Attorney O’Hanlon’s motion to
withdraw as counsel of record. The PCRA court explained that “[Appellant],
who was 23 years old at the time of the murder, was over the age of 18
years old when he committed the crime that resulted in his incarceration,
which puts him outside the reach of the Supreme Court’s Miller decision”
and, therefore, he was not entitled to relief. PCO at 4.
On October 25, 2016, Appellant filed a timely, pro se appeal from the
PCRA court’s September 30, 2016 order. On appeal, he raises the following
issues for our review:
I. Did the lower court err in not granting a hearing to
Appellant to determine whether mandatory life-without-
parole terms for individuals 18 to 25 years of age in
homicide cases violates the United States Constitution’s
Fourteenth Amendment Equal Protection Clause and
Pennsylvania’s Constitution’s Article 1 § 25?
II. Did the lower court err in not granting a hearing to
Appellant to determine whether mandatory life-without-
parole terms for individuals 18 to 25 years of age in
homicide cases violates the United States Constitution’s
Eighth Amendment’s Cruel and Unusual Punishment and
Pennsylvania’s Constitution’s Article I § 13?
Appellant’s Brief at 2 (unnecessary capitalization omitted).
At the outset, we note that our standard of review regarding an order
denying post-conviction relief is whether the findings of the court are
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“supported by the record and free of legal error.” Commonwealth v.
Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (citations omitted). We must
begin by addressing the timeliness of Appellant’s petition because “[t]he
PCRA’s time restrictions are jurisdictional in nature. … Without jurisdiction,
we simply do not have the legal authority to address the substantive
claims.” Id. (citations omitted). With respect to timeliness, the PCRA
provides, in pertinent part, the following:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition
alleges and the petitioner proves that:
(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.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the
claim could have been presented.
42 Pa.C.S. § 9545(b)(1)-(2).
In this case, as stated above, Appellant’s judgment of sentence
became final on July 23, 1987. Therefore, his present petition, filed on
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August 22, 2012, is plainly untimely, and Appellant must meet one of the
exceptions to the timeliness requirement set forth in section 9545(b)(1)(i)-
(iii), supra. Appellant contends that, based on the Supreme Court’s holding
in Miller, he satisfies both the ‘governmental interference’ exception of 42
Pa.C.S. § 9545(b)(1)(i) and the ‘retroactive constitutional right’ exception of
section 9545(b)(1)(iii). See Appellant’s Brief at 4.4 In Miller, as mentioned
supra, the Supreme Court established a new constitutional right by holding
“that mandatory life without parole for those under the age of 18 at the
time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel
and unusual punishments.’” Miller, 132 S.Ct. at 2460 (emphasis added).
After Miller, the United States Supreme Court issued Montgomery,
clarifying that Miller applies retroactively. Montgomery, 136 S.Ct. at 735-
36.
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4
It is not clear to this Court how the Supreme Court’s holding in Miller
relates to governmental interference under 42 Pa.C.S. § 9545(b)(1)(i). As
the PCRA court observed, Appellant “only relied on a general Miller claim in
seeking relief in his PCRA petition.” PCO at 4 n.2. See also
Commonwealth’s Brief at 8 n.2 (“[Appellant] also asserts that he satisfies
the requirements of [42 Pa.C.S.] § 9545(b)(1)(i), which concerns unlawful
interference with the presentation of claims by government officials. He fails
to identify any government official who purportedly interfered with his
presentation of his claim, let alone anything even remotely suggesting
unlawful governmental interference.”) (citation omitted). Because Appellant
has failed to develop this claim, we conclude it is waived. See Albrecht,
994 A.2d at 1095 (determining that the appellant did not sufficiently develop
his claim of governmental interference and noting that a failure to develop a
claim waives it) (citation omitted).
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Initially, Appellant has complied with the 60-day rule of section
9545(b)(2), as his August 22, 2012 petition was filed 58 days after Miller
was decided on June 25, 2012.5 Notwithstanding, Appellant has not shown
that the rule created in Miller applies to him. Our review of the record
reveals that Appellant was born on February 4, 1960, and he committed the
offenses for which he is now imprisoned on December 11, 1983.
Accordingly, Appellant was 23 years old at the time of the underlying
crimes.6
Nevertheless, on appeal, Appellant argues that “[i]t is clear that based
on the growing findings and developments in neuroscience[,] … Appellant’s
brain was not fully formed.” Appellant’s Brief at 5. He claims that “although
the United States Supreme Court dealt with the diminished culpability of
those under 18 years of age[,] it is evident that the Court’s rationales and
conclusions [] should be equally applied in this case[,]” and “to not consider
or bar relief where an individual is similarly situated is denial of equal
protection of the law and cruel and unusual punishment.” Id.
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5
This Court has “interpret[ed] Montgomery as making retroactivity under
Miller effective as of the date of the Miller decision.” Commonwealth v.
Secreti, 134 A.3d 77, 82 (Pa. Super. 2016). Thus, “the Miller rule of law
‘has been held’ to be retroactive for purposes of collateral review as of the
date of the Miller decision on June 25, 2012.” Id.
6
Appellant does not contend that he was under 18 at the time he committed
his crimes. See Appellant’s Brief at 5 “(In the instant case, Appellant was
23 years old at the time of the crime.”).
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We disagree, and have already denied such claims. Specifically, in
Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013), the co-
appellants, who were 19 and 21 years old at the time of their crimes,
likewise argued that Miller applied to them because a human brain does not
fully develop until the age of 25, and because “it would be a violation of
equal protection for the courts to treat them[,] or anyone else with an
immature brain, as adults.” Cintora, 69 A.3d at 764. In rejecting these
arguments, this Court stressed that the co-appellants’ “contention that a
newly-recognized constitutional right should be extended to others does not
render their petition timely pursuant to section 9545(b)(1)(iii).” Id.
(emphasis in original).
We recently reaffirmed Cintora’s holding in Commonwealth v.
Furgess, 149 A.3d 90 (Pa. Super. 2016). In that case, the appellant — who
was 19 years old when he committed his crimes — contended that he “may
invoke Miller because he was a ‘technical juvenile’” based on
“neuroscientific theories regarding immature brain development….” Id. at
94. Relying on Cintora, we restated 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).” Id.
In light of Cintora and Furgess, it is well-established that the rule
announced in Miller cannot apply to Appellant, who was 23 years old when
he committed the offenses for which he is now incarcerated. Appellant’s
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arguments that Miller should apply to his case do not satisfy the timeliness
exceptions of either section 9545(b)(1)(i) or section 9545(b)(1)(iii).
Therefore, after our review of the record and Appellant’s claims, we conclude
that Appellant’s PCRA petition is time-barred and was properly dismissed.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2017
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Com. v. Richardson, T.
Combined Opinion