J-S64016-16

 2016 PA Super 219

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

ROBERT FURGESS

Appellant No. 448 EDA 2016

Appeal from the Order Dated January 6, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0132171-1989

BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

OPINION BY SOLANO, J.: FILED SEPTEMBER 28, 2016

Appellant, Robert Furgess, appeals pro se from the order dismissing 

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

42 Pa.C.S. §§ 9541-9546. The PCRA court found Appellant’s petition to be 

untimely and therefore not within its jurisdiction. Upon review, we affirm.

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’ imprisonment 

for the PIC conviction. Appellant filed a timely appeal, and this Court 

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*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 2502(a);18 Pa.C.S. § 907(b).
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affirmed his judgment of sentence on October 9, 1991. Commonwealth v. 

Furgess (Pa. Super. Oct. 9, 1991) (unpublished memorandum). Appellant 

did not file a petition for allowance of an appeal by the Supreme Court of 

Pennsylvania.2

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 denied Appellant’s petition. 

This appeal followed.

On appeal, Appellant raises one issue for our review:

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2 Appellant states “Allocatur was denied.” Appellant’s Brief at vii. 

Conversely, the Commonwealth states that Appellant “did not seek allocatur 

in the Supreme Court of Pennsylvania.” Commonwealth’s Brief at 6. Our 

review of the certified record discloses that the Commonwealth is correct, 

and Appellant did not seek allocatur.

3

Initially, the PCRA court denied relief, Appellant appealed, and this Court 

issued a decision reversing and remanding so that Appellant’s counsel could 

“review appellant’s amended PCRA petition and submit an amended ‘no 

merit’ letter or, alternatively, an amended PCRA petition.” Commonwealth 

v. Furgess (Pa. Super. July 20, 1999) (unpublished memorandum). After 

remand, the PCRA court denied Appellant’s petition without a hearing, 

Appellant appealed, and this Court affirmed. Commonwealth v. Furgess

(Pa. Super. May 21, 2001) (unpublished memorandum).
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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 concluded 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 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.4 See 42 Pa.C.S. § 9545(b). A PCRA petition 

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4

The three exceptions to the timeliness requirement are:

(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.

(Footnote Continued Next Page)
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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). Asserted exceptions to the

time restrictions for the PCRA must be included in the petition, and may not 

be raised for the first time on appeal. Commonwealth v. Burton, 936 

A.2d 521, 525 (Pa. Super. 2007). This Court’s standard of review regarding 

an order dismissing a petition under the PCRA is “to determine whether the 

determination of the PCRA court is supported by the evidence of record and 

is free of legal error.” Commonwealth v. Barndt, 74 A.3d 185, 191-92 

(Pa. Super. 2013) (citations omitted). 

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 42 Pa.C.S. § 9545(b)(3). As Appellant filed 

the PCRA petition at issue here on August 8, 2012 — more than twenty 

years after his judgment of sentence became final — it is patently untimely 

(Footnote Continued) _______________________

(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. § 9545(b)(1).
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unless he has satisfied his burden of pleading and proving that one of the 

enumerated exceptions applies. See Hernandez, 79 A.3d at 651.5

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 the 

time bar under 42 Pa.C.S. § 9545(b)(1)(iii), which provides that a petitioner 

may seek relief when there is “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 by that court to apply 

retroactively.” Id. In his petition, Appellant relied on the U.S. Supreme 

Court’s decision in Miller v. Alabama, 132 S. Ct. 2455, 2460 (2012), which 

held that a sentence of life imprisonment without the possibility of parole is 

unconstitutionally cruel and unusual punishment when imposed upon 

defendants convicted of murder who were “under the age of 18 at the time 

of their crimes.” Similarly, in his brief to this Court, Appellant invokes 

Section 9545(b)(1)(iii), based on his contention that he is entitled to relief 

under Miller and the Supreme Court’s recent decision in Montgomery v. 

Louisiana, 136 S. Ct. 718 (2016), which held that its decision in Miller

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5 Because his judgment of sentence became final prior to the 1995 

amendments to the PCRA, which added the time restrictions, Appellant was 

permitted to file his first PCRA petition by January 16, 1996. See 

generally Commonwealth v. Crawley, 739 A.2d 108 (Pa. 1999). 
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applies retroactively to cases on state collateral review. Appellant’s Brief at 

1-9.6 

To invoke any of the time bar exceptions in Section 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.” 42 Pa. C.S. § 9545(b)(2). Here, if Appellant’s petition actually 

presented a valid claim under Miller v. Alabama, Appellant would have met 

that 60-day deadline because Miller was decided on June 25, 2012, and 

Appellant filed his PCRA petition less than 60 days later, on August 8, 2012.

See generally Commonwealth v. Secreti, 134 A.3d 77, 82 (Pa. Super. 

2016). But even though he filed within 60 days of the Miller decision, 

Appellant’s petition did not satisfy the jurisdictional requirements of Section 

9545 because the petition did not present a claim falling within the ambit of 

the Supreme Court’s decision in Miller and therefore does not fall under the 

“newly recognized constitutional right” exception in Section 9545(b)(1)(iii). 

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, 

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6 The PCRA Court issued its decision three weeks before the U.S. Supreme 

Court decided Montgomery.
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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 date 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 newly-recognized constitutional 

right should be extended to others does not render [a] petition [seeking 
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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 court 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.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/28/2016