J-S76033-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

ANTHONY HENRY,

Appellant No. 824 EDA 2017

Appeal from the PCRA Order February 17, 2017

in the Court of Common Pleas of Philadelphia County

Criminal Division at No.: CP-51-CR-1000081-1996

BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED JANUARY 09, 2018

Appellant, Anthony Henry, appeals pro se from the order dismissing his 

fourth petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 

Pa.C.S.A. §§ 9541-9546, as untimely. We affirm.

We take the following facts and procedural history of this case from our 

independent review of the certified record. On February 26, 1999, Appellant 

was convicted by a jury of first-degree murder and abuse of a corpse. The 

charges arose from Appellant’s strangulation of his then-girlfriend to death 

with a telephone cord in March of 1994. Appellant was twenty-five years old 

at the time of the murder. The trial court sentenced Appellant to an aggregate 

term of life imprisonment.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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This Court affirmed the judgment of sentence on July 18, 2001. (See 

Commonwealth v. Henry, 782 A.2d 1054 (Pa. Super. 2001) (unpublished 

memorandum)). Our Supreme Court denied Appellant’s petition for allowance 

of appeal on December 4, 2001. (See Commonwealth v. Henry, 793 A.2d 

905 (Pa. 2001)). Appellant litigated three unsuccessful PCRA petitions 

thereafter, filed on June 3, 2002, October 27, 2008, and October 11, 2011.

On March 14, 2016, Appellant filed the instant pro se PCRA petition, 

claiming a right to relief predicated on the United States Supreme Court’s 

decision in Miller v. Alabama, 132 S.Ct. 2455 (2012).1 (See PCRA Petition, 

3/14/16, at 3-4, 8 (arguing that mandatory sentences of life without parole 

for individuals over the age of seventeen are also unconstitutional)). The 

PCRA court issued notice of its intent to dismiss the petition without further 

proceedings on January 6, 2017. See Pa.R.Crim.P. 907(1). It entered its 

order dismissing Appellant’s PCRA petition on February 17, 2017. This timely 

appeal followed.2

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1 The Miller Court held that it is unconstitutional for states to sentence 

juvenile homicide defendants to mandatory sentences of life imprisonment 

without the possibility of parole. See Miller, supra at 2460. In Montgomery 

v. Louisiana, 136 S.Ct. 718 (2016), the Court determined that its Miller

holding constituted a new substantive rule of constitutional law that must be 

applied retroactively to cases on collateral review. See Montgomery, supra 

at 736.

2 Appellant filed a timely, court-ordered concise statement of errors 

complained of on appeal on May 1, 2017. The PCRA court entered an opinion 

on June 22, 2017. See Pa.R.A.P. 1925.
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On appeal, Appellant argues for an extension of the precepts set forth 

in Miller to adult offenders. (See Appellant’s Brief, at 3, 10-18).3

Our standard of review of an order denying PCRA relief is 

whether the record supports the PCRA court’s determination, and 

whether the PCRA court’s determination is free of legal error. The 

PCRA court’s findings will not be disturbed unless there is no 

support for the findings in the certified record.

Commonwealth v. Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citations 

omitted).

We begin by addressing the timeliness of Appellant’s petition. 

The PCRA provides eligibility for relief in conjunction with 

cognizable claims, . . . and requires petitioners to comply with the 

timeliness restrictions. . . . [A] PCRA petition, including a second 

or subsequent petition, must be filed within one year of the date 

that judgment becomes final. A judgment becomes final for 

purposes of the PCRA at the conclusion of direct review, including 

discretionary review in the Supreme Court of the United States 

and the Supreme Court of Pennsylvania, or at the expiration of 

time for seeking the review.

It is well-settled that the PCRA’s time restrictions are 

jurisdictional in nature. As such, this statutory time-bar implicates 

the court’s very power to adjudicate a controversy and prohibits 

a court from extending filing periods except as the statute 

permits. Accordingly, the period for filing a PCRA petition is not 

subject to the doctrine of equitable tolling; instead, the time for 

filing a PCRA petition can be extended only by operation of one of 

the statutorily enumerated exceptions to the PCRA time-bar.

The exceptions to the PCRA time-bar are found in Section 

9545(b)(1)(i)–(iii) (relating to governmental interference, newly 

discovered facts, and newly recognized constitutional rights), and 

it is the petitioner’s burden to allege and prove that one of the 

____________________________________________

3 We have summarized Appellant’s issues for ease of disposition; his brief is 

difficult to follow and nearly unintelligible. However, it is clear that the crux 

of his claim is that Miller must be applied in this case.
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timeliness exceptions applies. Whether a petitioner has carried 

his burden is a threshold inquiry that must be resolved prior to 

considering the merits of any claim. . . . 

Commonwealth v. Robinson, 139 A.3d 178, 185–86 (Pa. 2016) (quotation 

marks and citations omitted).

Here, Appellant’s judgment of sentence became final on March 4, 2002, 

ninety days after our Supreme Court denied allowance of appeal. See U.S. 

Sup.Ct. R. 13; 42 Pa.C.S.A. § 9545(b)(3). Therefore, Appellant had until 

March 4, 2003, to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). 

Because Appellant filed the instant petition on March 14, 2016, it is untimely 

on its face, and the PCRA court lacked jurisdiction to review it unless he 

pleaded and proved one of the statutory exceptions to the time-bar. See 42 

Pa.C.S.A. § 9545(b)(1)(i)-(iii).

Section 9545 of the PCRA provides only three limited exceptions that 

allow for review of an untimely PCRA petition: 

(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. 

Id.
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Any petition invoking an exception must “be filed within 60 days of the 

date the claim could have been presented.” Id. at § 9545(b)(2). “If the 

[PCRA] petition is determined to be untimely, and no exception has been pled 

and proven, the petition must be dismissed without a hearing because 

Pennsylvania courts are without jurisdiction to consider the merits of the 

petition.” Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa. Super. 2011), 

appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted).

Here, Appellant invokes the newly recognized and retroactively applied 

constitutional right exception at 42 Pa.C.S.A. § 9545(b)(1)(iii), by arguing 

that his life sentence should be considered unconstitutional pursuant to Miller

and Montgomery. (See Appellant’s Brief, at 10-16; see also PCRA Petition, 

at 3-4, 8). We disagree.

This Court has expressly “[held] 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).” Commonwealth v. 

Furgess, 149 A.3d 90, 94 (Pa. Super. 2016) (case citation omitted). 

Therefore, Appellant, as an adult offender, falls outside the ambit of Miller, 

and his arguments predicated on an extension of Miller and Montgomery

fail. See id.

In sum, we conclude Appellant has not met his burden of proving that 

his untimely PCRA petition fits within one of the three exceptions to the PCRA’s 
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time-bar. See Robinson, supra at 185-86. Accordingly, we affirm the order 

of the PCRA court.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/9/18