Com. v. Chumley, R.

J-S39043-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
v. :
:
RANDALL HOYT CHUMLEY, :
:
Appellant : No. 281 WDA 2017
Appeal from the PCRA Order January 26, 2017,
in the Court of Common Pleas of Lawrence County,
Criminal Division, at No(s): CP-37-MD-0000375-1976
BEFORE: BENDER, P.J.E., BOWES, and STRASSBURGER, JJ.*
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 07, 2017
Randall Hoyt Chumley (Appellant) pro se appeals from the January 26,
2017 order which denied his petition for relief filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
“On October 13, 1976, Appellant pleaded guilty to murder generally
and, following a degree of guilt hearing, the trial court found Appellant guilty
of second-degree murder. On November 2, 1976, the trial court sentenced
Appellant to a term of life in prison.” Commonwealth v. Chumley, 93 A.3d
501 (Pa. Super. 2013) (unpublished memorandum at 1). “Our Supreme
Court affirmed Appellant’s judgment of sentence on November 18, 1978
and, on March 19, 1979, the United States Supreme Court denied
Appellant’s petition for writ of certiorari.” Id. See Commonwealth v.
Chumley, 394 A.2d 497 (Pa. 1978), certiorari denied, 440 U.S. 966 (1979).
*Retired Senior Judge assigned to the Superior Court.
J-S39043-17
On August 9, 2016, Appellant filed his fifth PCRA petition, which is the
subject of this appeal. The PCRA court appointed counsel, who filed an
amended petition. After giving notice of its intent to dismiss the petition
without a hearing pursuant to Pa.R.Crim.P. 907, the PCRA court dismissed
the petition by order of January 26, 2017.
Appellant timely filed a notice of appeal, and both Appellant and the
PCRA court complied with Pa.R.A.P. 1925. On appeal, Appellant raises three
substantive claims for relief. See Appellant’s Brief at v.
Before we may consider the merits of Appellant’s claims, we must
determine whether his PCRA petition was timely filed, as the timeliness of a
post-conviction petition is jurisdictional. Commonwealth v. Robinson, 12
A.3d 477, 479 (Pa. Super. 2011). 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 of sentence is final unless the petition alleges,
and the petitioner proves, that an exception to the time for filing the petition
is met. 42 Pa.C.S. § 9545.
It is clear that Appellant’s petition is facially untimely; his judgment of
sentence became final in 1979. However, Appellant alleges that his petition
is based upon a change in the law, referencing Miller v. Alabama, 567 U.S.
460, 132 S. Ct. 2455 (2012) and Montgomery v. Louisiana, 136 S. Ct. 718
(2016). Appellant’s Brief at 3. Thus, it appears that Appellant is alleging
that the following timeliness exception applies: “the right asserted is a
-2-
J-S39043-17
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).
In Miller, the Court held that the application of mandatory sentences
of life imprisonment without possibility of parole to individuals who were
juveniles at the time they committed homicides was unconstitutional.
Miller, 567 U.S. at __, 132 S. Ct. at 2464. In Montgomery, the Court
determined that Miller announced a new substantive rule of law that applies
retroactively. Montgomery, 136 S. Ct. at 736.
Appellant was not a juvenile at the time of the murder; rather, he was
19 years old. See Appellant’s Brief at 3 (“Appellant alleges that [a]lthough
19 at the time of the commission of the crime….”). Accordingly, Miller and
Montgomery are not applicable to Appellant’s petition. See
Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016)
(“[P]etitioners 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).”).
Because Appellant did not plead facts that would establish an
exception to the PCRA’s timeliness requirements, the PCRA court properly
dismissed Appellant’s petition without holding a hearing. See
-3-
J-S39043-17
Commonwealth v. Albrecht, 994 A.2d 1091, 1095 (Pa. 2010) (affirming
dismissal of PCRA petition without a hearing because the appellant failed to
meet burden of establishing timeliness exception).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2017
-4-