J-S45026-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GARY GULLY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2232 EDA 2018

Appeal from the PCRA Order Entered July 13, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0119352-1986

BEFORE: BENDER, P.J.E., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY MURRAY, J.: FILED AUGUST 16, 2019

Gary Gully (Appellant) appeals pro se from the order denying his 

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

Pa.C.S.A. §§ 9541-9546. We affirm.

For more than 30 years, Appellant has been serving a life sentence, 

imposed on January 6, 1988, after a jury convicted him of second degree 

murder, criminal conspiracy, kidnapping, and robbery; this Court affirmed the 

judgment of sentence on direct appeal. Commonwealth v. Gully, 549 A.2d 

1339 (Pa. Super. Aug. 15, 1988) (unpublished memorandum). Appellant 

petitioned for allowance of appeal, which the Pennsylvania Supreme Court 

denied on January 24, 1989. Commonwealth v. Gully, 557 A.3d 342 (Pa. 

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* Retired Senior Judge assigned to the Superior Court.
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1989). Appellant did not seek a writ of certiorari with the United States 

Supreme Court.

On January 17, 1996, Appellant filed his first PCRA petition. The PCRA 

court dismissed the petition on October 26, 1996. Appellant sought relief with 

this Court and the Supreme Court. He was unsuccessful. See

Commonwealth v. Gully, 716 A.2d 1248 (Pa. 1998) (denying Appellant’s 

petition for allowance of appeal).

On August 21, 2012, Appellant filed the underlying pro se PCRA 

petition, his second. After providing notice of intent to dismiss the petition

pursuant to Pennsylvania Rule of Criminal Procedure 907 on May 30, 2018,

the PCRA court dismissed the petition on July 13, 2018.

1

 Appellant filed this 

appeal on July 27, 2018.

We begin with the untimeliness of Appellant’s petition. “Pennsylvania 

law makes clear no court has jurisdiction to hear an untimely PCRA petition.” 

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa. Super. 2010) 

(quoting Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)). 

A petitioner must file a PCRA petition within one year of the date on which the 

petitioner’s judgment of sentence became final, unless one of the three 

statutory exceptions applies:

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1 We bolded these dates to reflect the nearly six (6) year lapse between 

Appellant’s filing of the PCRA petition in 2012 and the PCRA court’s disposition

in 2018. There is no explanation for the delay in the record.
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(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.A. § 9545(b)(1). A petitioner must file a petition invoking one of 

these exceptions within one year of the date the claim could have been 

presented. 42 Pa.C.S.A. § 9545(b)(2).2 If a petition is untimely, and the 

petitioner has not pled and proven an exception, “‘neither this Court nor the 

trial court has jurisdiction over the petition. Without jurisdiction, we simply 

do not have the legal authority to address the substantive claims.’” 

Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007) 

(quoting Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006)).

As noted above, the trial court sentenced Appellant in 1988, this Court 

affirmed the judgment of sentence, and the Supreme Court denied Appellant’s 

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2 Or in Appellant’s case, 60 days. Act 146 of 2018 amended 42 Pa.C.S.A. 

§9545(b)(2), effective December 2017, and now provides that a PCRA petition 

invoking a timeliness exception be filed within one year of the date the claim 

could have been presented; the prior law required that the petition be filed 

within 60 days. The amendment does not apply to Appellant, who filed his 

petition on August 21, 2012.
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petition for allowance of appeal. See Commonwealth v. Gully, 549 A.2d 

1339 (Pa. Super. Aug. 15, 1988) (unpublished memorandum);

Commonwealth v. Gully, 557 A.3d 342 (Pa. 1989). Appellant did not seek 

a writ of certiorari with the United States Supreme Court. Appellant’s 

judgment of sentence is obviously untimely. See 42 Pa.C.S.A. § 9545(b)(3) 

(“a judgment becomes final 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.”).

Appellant does not contest the untimeliness of his PCRA petition, which 

he filed on August 21, 2012, approximately two months after the United States 

Supreme Court, on June 25, 2012, decided Miller v. Alabama, 567 U.S. 460 

(2012) (holding that mandatory life imprisonment 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). Rather, 

Appellant claims he is entitled to relief under the newly discovered facts and 

constitutional right exceptions to the PCRA’s time bar, 42 Pa.C.S.A. § 

9545(b)(1)(ii) and (iii). See PCRA Petition, 8/21/12, 3-9; Appellant’s Brief at 

3, 7-24. Appellant cites Miller, which was made retroactive by Montgomery 

v. Louisiana, 136 S. Ct. 718 (2016) (announcing new substantive 

constitutional rule that the holding in Miller was retroactive on state collateral 

review).
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Pertinently, Appellant concedes he was born on February 11, 1964, and 

was 21 years old when he committed the crimes of which he was convicted. 

He nonetheless asserts that he is eligible for relief because he possessed “an 

under-developed brain at the time of the crime, which is supported by science 

and social science in Miller.” See PCRA Petition, 8/12/12, at 3. This Court 

has repeatedly found this argument to lack merit.

Recently, this Court considered a similar claim in Commonwealth v. 

Lee, 206 A.3d 1 (Pa. Super. 2019) (en banc). In Lee, the defendant, Ms. 

Lee, was 18 years and nine-months old when she was involved in a robbery 

that resulted in the death of the victim. Id. at 3. Following the United States 

Supreme Court’s decisions in Miller and Montgomery, Ms. Lee filed a PCRA 

petition arguing that she was a “virtual minor” at the time of the crime and 

“the rationale underlying the Miller holding, including consideration of 

characteristics of youth and age-related facts identified as constitutionally 

significant by the Miller Court, provides support for extending the benefit of 

Miller to her case.” Id. This Court concluded that Ms. Lee did not qualify for 

an exception to the PCRA’s time bar. We opined:

It is not this Court’s role to override the gatekeeping function of 

the PCRA time-bar and create jurisdiction where it does not exist. 

The PCRA’s time limitations “are mandatory and interpreted 

literally; thus, a court has no authority to extend filing periods 

except as the statute permits.” Commonwealth v. Fahy, [737 

A.2d 214, 222 (Pa. Super.] 1999). The period for filing a PCRA 

petition “is not subject to the doctrine of equitable tolling.” Id.

We recognize the vast expert research on this issue. If this matter 

were one of first impression and on direct appeal, we might 
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expound differently. However, we are an error-correcting court. 

Until the United States Supreme Court or the Pennsylvania 

Supreme Court recognizes a new constitutional right in a nonjuvenile offender, we are bound by precedent. We conclude, as 

we did in Commonwealth v. Montgomery [181 A.3d 359 (Pa. 

Super. 2018)], [Commonwealth v. Furgess, 149 A.3d 90 (Pa. 

Super. 2016)], and [Commonwealth v. Cintora, 69 A.3d 759 

(Pa. Super. 2013) abrogation on other grounds recognized in 

Furgess, supra, at 94], that age is the sole factor in determining 

whether Miller applies to overcome the PCRA time-bar and we 

decline to extend its categorical holding.

Lee, 206 A.3d at 11 (footnote omitted).

Based on the foregoing, Appellant, like Ms. Lee, has failed to successfully 

plead or prove that he qualifies for an exception to the PCRA’s time bar. We 

therefore affirm the PCRA court. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/16/19