Commonwealth v. FurgessCommonwealth v. Furgess
Appellant, Robert Furgess, appeals pro se from the order dismissing his second petition filed pursuant to the Post Conviction Relief Act (PCRA),
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’ imрrisonment for the PIC conviction. Appellant filed a timely appeal, and this Court affirmed his judgment of sentence on Octo
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 dеnied Appellant‘s petition. This appeal followed.
On appeal, Appellant raises one issue for our review:
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 cоncluded 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 thе 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) оf the statute.4 See
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
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 thе time bar under
To invoke any of the time bar exceptions in Sectiоn 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.”
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, 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 dаte 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 nеwly-recognized constitutional right should be extended to others does not render [a] petition [seeking 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 сourt 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.
Notes
(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;
(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 hаs been held by that court to apply retroactively.