J-S04039-15

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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MICHAEL LEE BOURGEOIS,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 1248 MDA 2014

Appeal from the PCRA Order Entered July 7, 2014

in the Court of Common Pleas of Lancaster County,

Criminal Division, at No(s): CP-36-CR-0004224-2001

and CP-36-CR-0004975-2001

BEFORE: BOWES, ALLEN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED MARCH 31, 2015

Michael Lee Bourgeois (Appellant) appeals from the July 7, 2014 order 

which dismissed his petition filed pursuant to the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

When Appellant was 17 years old, he killed Terry and Lucy Smith. In 

2003, Appellant entered into a negotiated guilty plea whereby he pled guilty 

to, inter alia, two counts of first-degree murder, and he received consecutive 

sentences of life imprisonment without possibility of parole. He filed no 

direct appeal and was denied relief on his first two PCRA petitions.

In 2012, Appellant filed the instant PCRA petition, which the PCRA 

court dismissed as untimely filed by order of July 7, 2014. Appellant timely 

filed a notice of appeal. The PCRA court did not require Appellant to file a 
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statement of errors complained of on appeal, and none was filed. The PCRA 

court has filed an opinion pursuant to Pa.R.A.P. 1925(a). 

Appellant presents three questions for this Court’s review: 

A. Whether the [PCRA] court erred in denying Appellant’s 

PCRA petition as untimely where Miller v. Alabama[1]

should be applied retroactively to [Appellant] where he is 

proceeding under the [PCRA].

B. Whether Pennsylvania’s mandatory life without parole 

sentencing scheme for juveniles convicted of murder (first 

or second degree) is unconstitutional under the U.S. and 

Pennsylvania Constitutions.

C. Whether [Appellant] should be re-sentenced under Act 204 

of 2012.

Appellant’s Brief at 4 (unnecessary capitalization, suggested answers, and 

trial court answers omitted). 

Before we consider the merits of Appellant’s arguments, we must 

determine whether his PCRA petition was timely filed. “[T]he timeliness of a 

PCRA petition is a jurisdictional requisite.” Commonwealth v. Williams, 

35 A.3d 44, 52 (Pa. Super. 2011). “Generally, to obtain merits review of a 

PCRA petition filed more than one year after a petitioner’s sentence became 

final, the petitioner must allege and prove at least one of the three 

timeliness exceptions.” Id. 

 

1 132 S.Ct. 2455 (2012), wherein the United States Supreme Court held that 

the federal Constitution prohibits the mandatory imposition on juveniles of 

life sentences without possibility of parole. 
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Here, Appellant attempted to invoke the timeliness exception found at 

42 Pa.C.S. § 9545(b)(1)(iii). PCRA Petition, 8/9/2012, at 3-4. That 

subsection provides that a petition may be filed more than one year after a 

judgment becomes final if a petitioner pleads and proves that “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. § 9545(b)(1)(iii). Appellant claims that in Miller, 

the United States Supreme Court recognized a new right under the United 

States Constitution that must be applied retroactively. Appellant’s Brief at 

10. In the alternative, Appellant argues that Article I, Section 13 of the 

Pennsylvania Constitution provides an independent basis for relief. Id. at 

12. We disagree. 

Subsection (iii) of Section 9545[(b)(1)] has two requirements. 

First, it provides that 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 provided 

in this section. Second, it provides that the right “has been 

held” by “that court” to apply retroactively. Thus, a petitioner 

must prove that there is a “new” constitutional right and that the 

right “has been held” by that court to apply retroactively. The 

language “has been held” is in the past tense. These words 

mean that the action has already occurred, i.e., “that court” has 

already held the new constitutional right to be retroactive to 

cases on collateral review. By employing the past tense in 

writing this provision, the legislature clearly intended that the

right was already recognized at the time the petition was filed.
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Commonwealth v. Seskey, 86 A.3d 237, 242-43 (Pa. Super. 2014) 

(quoting Commonwealth v. Copenhefer, 941 A.2d 646, 649–50 (Pa. 

2007)). 

The United States Supreme Court did not indicate in Miller whether its 

decision applies retroactively. In Commonwealth v. Cunningham, 81 

A.3d 1 (Pa. 2013), cert. denied, 134 S.Ct. 2724 (2014), our Supreme Court 

held that the right recognized in Miller does not apply retroactively. Thus, 

Appellant cannot use the Miller decision to satisfy the requirements of 

subsection 9545(b)(1)(iii). 

Further, Appellant cites to no case in which our Supreme Court has 

recognized a new, retroactively-applicable right under Article I, Section 13 of 

the Pennsylvania Constitution. Therefore, Appellant cannot use this claim to 

sustain his burden as to subsection 9545(b)(1)(iii). See Seskey, 86 A.3d at 

243 (holding that it could not consider the substance of the appellant’s 

claims under Article I, Section 13 of the Pennsylvania Constitution given the 

language of subsection 9545(b)(1)(iii) and Cunningham). 

Because Appellant did not plead facts that would establish an 

exception to the PCRA’s timeliness requirements, the PCRA court lacked 

jurisdiction to address the merits of his petition and properly dismissed it 

without a hearing.

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/31/2015