J-S59024-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

EARNEST N. DUKES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3626 EDA 2016

Appeal from the PCRA Order November 3, 2016

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0504571-1991

BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.

MEMORANDUM BY OTT, J.: FILED DECEMBER 19, 2017

Earnest N. Dukes appeals, pro se, from the order entered November 3, 

2016, in the Court of Common Pleas of Philadelphia County denying him relief 

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

Pa.C.S. § 9540 et seq. The petition, Dukes’ fifth, was denied without a hearing, 

pursuant to Pa.R.Crim.P. 907. In this timely appeal, Dukes claims the PCRA 

court erred in determining, 1) his petition was untimely, 2) his petition was 

meritless, and 3) his constitutional rights had not been violated. Dukes bases 

his claims on the United States Supreme Court cases of Miller v. Alabama, 

____________________________________________

 Former Justice specially assigned to the Superior Court.
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___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)1 and Montgomery v. 

Louisiana, ___ U.S. ___, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016).2 After a 

thorough review of the submissions by the parties, certified record, relevant 

law, we affirm.

The relevant underlying facts are easily related. In 1990, when he was 

22 years old, Dukes shot and killed a man while robbing him of his gold chain. 

In 1992, Dukes pled guilty to second-degree murder and was sentenced to a 

mandatory term of life imprisonment without parole. Following the 

Montgomery decision, Dukes filed the instant PCRA petition claiming 

although he was 22 years old at the time of the crime, and although Miller

only applies to those defendants who were under the age of 18 at the time of 

the crime, he should be entitled to relief, as scientifically, his brain was also 

immaturely developed.

Our standard of review of the denial of a PCRA petition is limited 

to examining whether the record evidence supports the court's 

determination and whether the court's decision is free of legal 

error. 

Commonwealth v. Shiloh, 170 A.3d 553, 556 (Pa. Super. 2017) (citation 

omitted). 

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1 Miller determined that mandatory sentences of life imprisonment without 

parole for minors were unconstitutional, due to the immaturity of a minor’s 

brain development.

2 Montgomery determined that the Miller decision was entitled to retroactive 

application on collateral review.
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Here, the PCRA court determined the instant petition was untimely and 

therefore the court had no jurisdiction to address the merits of Dukes’ claim. 

Clearly, the instant petition is facially untimely; Dukes pled guilty in 1992, this 

petition was not filed until 2016. The PCRA allows a petitioner one year from 

the date his or her judgment of sentence became final to file a PCRA petition. 

Dukes’ judgment of sentence became final in October of 1993. See PCRA 

Court opinion, at 1. Accordingly, the instant petition is approximately 23 years

too late.

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. See 42 Pa.C.S. § 9545(b). A PCRA petition 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).

Commonwealth v. Furgess, 149 A.3d 90, 92-93 (Pa. Super. 2016).

Here, Dukes asserts the combination of the U.S. Supreme Court 

decisions of Miller and Montgomery satisfy the timeliness exception found 

at 42 Pa.C.S. § 9545(b)(1)(iii), “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 to apply retroactively.” As 

noted above, Dukes has claimed entitlement to the application of 
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Miller/Montgomery because, at 22 years old at the time of his crime, his 

brain was immaturely developed as described by the Supreme Court in Miller.

This argument was rejected by previous decision by our Court, 

specifically Commonwealth v. Furgess, supra, and Commonwealth v. 

Cintora, 69 A.3d 759 (Pa. Super. 2013). In Furgess, our Court held:

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 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 
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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 postconviction relief.

Commonwealth v. Furgess, 149 A.3d at 94.

The certified record supports the PCRA court’s conclusion that the 

petition was untimely and that it lacked jurisdiction to consider the merits. 

Pursuant to Furgess and Cintora, we affirm the PCRA court’s order denying 

Dukes relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/19/2017