time-bar exception in Pennsylvania

2024Th[e Pennsylvania Superior] Court has explained 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) [of the PCRA].” See Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016); see also Commonwealth v. Woods, 179 A.3d 37, 38, 44 (Pa. Super. 2017) (determining that Miller did not apply to the appellant’s case where the appellant was 18 years and 36 days old when he committed his crime).

2020Petitioners who were at least 18 years old at the time of their crimes – such as Appellant, who was 28 years old -- “are not within the ambit of the Miller decision [and its corollary, Montgomery,] and therefore may not rely on that decision to bring themselves within the time-bar exception in Section 9545(b)(1)(iii).” Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016).

2026See Hernandez, supra. Taggart has failed to plead and prove a time-bar exception.

2026See Hernandez, supra. Powell has failed to plead and prove a time-bar exception.

2019S21043/19 Instantly, appellant was 18 years and 11 months old at the time he committed the murder, and therefore, Miller provides no relief.7 See Cintora, 69 A.3d 759, 764 (Pa.Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013) (table) (holding that petitioners who were 18 years old or older at the time they committed murder are not within the ambit of Miller); see also Commonwealth v. Furgess, 149 A.3d 90, 92-93 (Pa.Super. 2016) (holding that a petitioner’s assertion of the time-bar exception set forth in Section 9545(b)(1)(iii) must be rejected because the constitutional rule rendering mandat

2018In Commonwealth v. Furgess , 149 A.3d 90 (Pa.Super. 2016) this Court relied upon our prior decision in Commonwealth v. Cintora , 69 A.3d 759 (Pa.Super. 2013), appeal denied, 622 Pa. 764 , 81 A.3d 75 (2013), and held that petitioners who were older than eighteen at the time they committed murder are not within the ambit of the Miller decision and, therefore, may not rely on that case to satisfy the time-bar exception set forth in Section 9545(b)(1)(iii).

2024Commonwealth v. Bennet, 930 A.2d 1264, 1274 (Pa. 2007). “[T]he newly[-]discovered fact[s] exception[, however,] does not require any merits analysis of the underlying claim, and application of the time-bar exception[,] therefore[,] does not necessitate proof of the elements of a claim of after-discovered evidence.” Commonwealth v. Small, 238 A.3d 1267 , 1286 (Pa. 2020) (original quotation marks omitted) (noting that, the newly-discovered facts exception to the jurisdictional time-bar is distinct from an after-discovered evidence claim, which is a substantive basis for relief pursuant to 42 Pa.

2024Commonwealth v. Bennet, 930 A.2d 1264 , 1274 (Pa. 2007). “[T]he newly[-]discovered fact[s] exception[, however,] does not require any merits analysis of the underlying claim, and application of the time-bar exception[,] therefore[,] does not necessitate proof of the elements of a claim of after-discovered evidence.” Commonwealth v. Small, 238 A.3d 1267 , 1286 (Pa. 2020) (original quotation marks omitted) (noting that, the newly-discovered facts exception to the jurisdictional time-bar is distinct from an after-discovered evidence claim, which is a substantive basis for relief - 22 - J-S03012-2

2025See Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010). -6- J-S41036-24 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

2015See 42 Pa.C.S.A. § 9545(b)(1)(i) (allowing a time-bar exception where the government interference was “in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States[]”); Commonwealth v. Albrecht, 994 A.2d 1091, 1095 (Pa. 2010) (rejecting government interference argument regarding prison officials where the defendant “fail[ed] to show any of the conditions of his incarceration were illegal[]”).

2025See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 784 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(2).

2023See Commonwealth v. Stahl, --- A.3d ---, ---, 2023 WL 1793571 at *2 (Pa. Super. 2023) (stating that PCRA counsel’s ineffectiveness in connection with a first PCRA petition does not establish a time-bar exception where it does not wholly deprive a defendant of collateral review); see also Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa. 2000) (holding that “subsequent counsel’s review of previous counsel’s -9- J-S13007-23 representation and a conclusion that previous counsel was ineffective is not a newly discovered ‘fact’ entitling [the petitioner] to the benefit of the exception for afte

2019However, in Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super. 2018), a case involving an untimely PCRA petition, we held that the appellant was required to demonstrate that the Supreme Court of Pennsylvania has held Muniz applies retroactively in order to satisfy the time-bar exception of 42 Pa.C.S. § 9454(b)(1)(iii) (new constitutional right exception), and because no such holding has been issued by our Supreme Court, a petitioner cannot rely on Muniz to meet that timeliness exception.

2018Most recently, in Commonwealth v. Murphy, 180 A.3d 402 (Pa.Super. 2018), a case involving an untimely PCRA petition, we held that the defendant was required to demonstrate that the Supreme Court of Pennsylvania has held Muniz applies retroactively in order to satisfy the time-bar exception of 42 Pa.C.S.A. § 9454(b)(1)(iii) (new constitutional right exception), and because, currently, no such holding has been issued by our supreme court, a defendant cannot rely on Muniz to meet that timeliness exception.

2024See Reid, 235 A.3d at 1146-47; Watts, 23 A.3d at 986 - 87; Branthafer, 2024 PA Super 67 , *5; Stahl, 292 A.3d at 1136.5 ____________________________________________ 5 While Appellant did not invoke the time-bar exception for a retroactive constitutional right, we note our agreement with a prior panel of this Court which stated that “Bradley is properly understood as a reassessment of appellate procedure in cases involving claims for collateral relief.

2015Accordingly, as Alleyne is not a fact, and Appellant has not pled or proven any other newly discovered facts that would meet the time-bar exception in Section 9545(b)(1)(ii), his PCRA petition is untimely on this basis.3 See Watts, supra. ____________________________________________ 3 We note that Appellant does not invoke the time-bar exception in Section 9545(b)(1)(iii), the newly recognized constitutional right exception.

2024Th[e Pennsylvania Superior] Court has explained 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) [of the PCRA].” See Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016); see also Commonwealth v. Woods, 179 A.3d 37, 38, 44 (Pa. Super. 2017) (determining that Miller did not apply to the appellant’s case where the appellant was 18 years and 36 days old when he committed his crime).

2018This Court has explained 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).” See Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016); see also Commonwealth v. Woods, 179 A.3d 37, 38, 44 (Pa. Super. 2017) (determining that Miller did not apply to the appellant’s case where the ____________________________________________ 7Appellant’s brief is lengthy, unorganized, and largely incoherent.

2023See Brown, supra. Further, the record supports the court’s analysis that Officer Andrejczak’s testimony at Flores’ trial did not offer a “new fact” necessary to satisfy the time-bar exception.

2021Commonwealth v. Brown, 111 A.3d 171, 179 (Pa. Super. 2015) (holding petitioner must plead and prove a time-bar exception in the petition to establish jurisdiction).

2020Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013). ____________________________________________ 7 Appellant’s date of birth is July 1, 1983.

2020Commonwealth v. Lewis, 63 A.3d 1274, 1280-81 (Pa. Super. 2013).

2017See [Commonwealth v. Lark, 746 A.2d 585 , 588 n.4 (Pa. 2000)] (concluding that because a particular study of the Philadelphia criminal justice system consisted of statistics which were public record, it could not be said that the statistics were unknown to the petitioner). -7- J-S84045-16 Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013) (quotation marks and some citations omitted).

2015Additionally, because Appellant’s sentence is a matter of public record, his eligibility for the time-bar exception fails.1 See Commonwealth v. Edmiston, 65 A.3d 339, 352 (Pa. 2013) (holding that to qualify for the ____________________________________________ 1 Within his brief, Appellant raises a claim that all prior counsel were ineffective for failing to discover the defect in his “sentencing order.” See Appellant’s Brief at 8-9.

2019See Miller, supra. Consequently, we do not have jurisdiction to review Appellant’s second issue.

2017See 42 Pa.C.S. § 9545(b)(1)(iii); Miller, 102 A.3d at 994 .

2025Because Gray filed his third PCRA petition more than twenty-five years after his judgment of sentence became final and failed to prove a time-bar exception, the PCRA court did not err in dismissing his petition without a hearing.12 See id.

2022“Due diligence does not require perfect vigilance and punctilious care, but merely a showing the party [] put forth reasonable effort to obtain the information upon which a claim is based.” Commonwealth v. Cox, 146 A.3d 221, 230 (Pa. 2016) (citation and original quotation marks omitted). “[T]he newly[-]discovered fact exception does not require any merits analysis of the underlying claim, and application of the time-bar exception therefore does not ____________________________________________ 7 We note that effective December 24, 2018, the time-period in which to file a petition invoking one o

2020Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super. 2010) (citations omitted). 3 To establish this time-bar exception, the petitioner must plead and prove that he is asserting 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). -3- J-S63041-19 On August 18, 2016, the PCRA court issued Appellant notice pursuant to Pa.R.Crim.P. 907 that it planned to dismiss his petition as untimely filed.

2017This Court has observed that “[o]nly under a very limited circumstance has [our] Supreme Court ever allowed a form of mental illness or incompetence to excuse an otherwise untimely[-filed] PCRA petition.” Commonwealth v. Monaco, 996 A.2d 1076, 1080-81 (Pa. Super. 2010). -4- J-S33032-17 In Cruz, the case relied upon by Appellant, our Supreme Court held that a PCRA petitioner may invoke the time-bar exception set forth in Section 9545(b)(1)(ii) of the PCRA, if the petitioner is able to prove “(1) that he was and remained incompetent throughout the period during which his right to file a PCRA pet

2017See Commonwealth v. Feliciano, 69 A.3d 1270, 1276-77 (Pa. Super. 2013). 2 The PCRA court did not err in dismissing the Petition without a hearing, as Hughston filed an untimely PCRA Petition and did not invoke any valid exceptions to the timeliness requirement.

2016See id. at 1277 .

2024See Commonwealth v. Kretchmar, 189 A.3d 459, 462 (Pa.Super. 2018) (citing 42 Pa.C.S.A. § 9545(b)(2)).

2022See Commonwealth v. Kretchmar, 189 A.3d 459, 462 (Pa.Super. 2018) (citing 42 Pa.C.S.A. § 9545(b)(2)).7 When pleading and proving the ____________________________________________ 7The statute currently provides a petitioner one year to invoke the exception.

2023See Commonwealth v. Wharton, 886 A.2d 1120, 1126 (Pa. 2005).

2017Because Salley has failed to establish any of the time-bar exceptions,4 we conclude the PCRA court did not err in dismissing Salley’s petition as untimely. ____________________________________________ 4 To the extent Salley alleges a time-bar exception due to ineffective assistance of counsel, “[i]t is well settled that allegations of ineffective assistance of counsel will not overcome the jurisdictional timeliness requirements of the PCRA.” Commonwealth v. Wharton, 886 A.2d 1120, 1126 (Pa. 2005). -8- J-S89025-16 Next, we consider Salley’s petition for remand.

2023Commonwealth v. Lark, 746 A.2d 585, 589 (Pa. 2000). [An i]neffectiveness claim does not constitute a time-bar exception[;] it is untimely and unreviewable.

2017See [Commonwealth v.] Lark, 560 Pa. 487 , 746 A.2d [585,] 588 n.4 [(Pa. 2000)] (concluding that because a particular study of the Philadelphia criminal justice system consisted of statistics which were public record, it could not be said that the statistics were unknown to the petitioner).

2018Here, the only issue addressed by the PCRA court was whether Saunders’ petition satisfied the PCRA’s timeliness exception for a new constitutional right of retroactive effect, 42 Pa.C.S.A. § 9545(b)(1)(iii), based on the United States Supreme Court decision in Miller, supra. The PCRA court concluded that this case does not establish a time-bar exception.

2018Miller, 567 US at 465 ; see also Commonwealth v. Furgess, 149 A.3d 90, 92-93 (Pa.Super. 2016) (holding that, an appellant’s assertion of the time-bar exception set forth in Section 9545(b)(1)(iii) must be rejected because the constitutional rule rendering mandatory sentences of life imprisonment without possibility of parole on juveniles unconstitutional applied only to those defendants who were 18 or under when offenses were committed).

2025Derrickson, supra. We therefore affirm the PCRA court’s order dismissing Velez’s PCRA petition.

2023“A time-bar exception raised for the first time in response to a court’s Rule 907 notice is not preserved for review unless the petitioner seeks, and the PCRA court grants, permission to file an amended petition.” Commonwealth v. Cannon, 1699 EDA 2019, 2019 WL 6999943 , at *3 (Pa. Super. filed Dec. 20, 2019) (unpublished mem.) (citing Derrickson, 923 A.2d at 469 ).5 Appellant failed to properly present an exception to the PCRA time bar, and therefore, the PCRA court lacked jurisdiction to consider Appellant’s PCRA petition.

2024Burton, supra. In sum, Baumgardner’s motion is cognizable under the PCRA, but it is untimely, and he has failed to establish a time-bar exception.2 As such, both the PCRA court and this Court lack jurisdiction to consider his substantive ____________________________________________ 2 To the extent, Baumgardner requests to file a nunc pro tunc post-sentence motion, it is also untimely.

2023Commonwealth v. Burton, supra. In sum, the PCRA court correctly concluded that Groff’s 2022 petition was patently untimely and that he did not plead and prove a time-bar exception.

2026Our Supreme Court has instructed that “the newly discovered fact exception does not require any merits analysis of the underlying claim, and application of the time-bar exception therefore does not necessitate proof of the elements of a claim of after-discovered evidence.” Commonwealth v. Small, 238 A.3d 1267 , 1286 (Pa. 2020) (citation and internal quotation marks omitted); see also Commonwealth v. Branthafer, 315 A.3d 113, 128 (Pa. Super. 2024) (noting that “the newly-discovered facts exception to the jurisdictional time-bar is distinct from an after-discovered evidence claim, which is a sub

2026“The newly-discovered facts exception, however, does not require any merits analysis of the underlying claim, and application of the time-bar exception, therefore, does not necessitate proof of the elements of a claim of after-discovered evidence.” Id. at 128 (brackets and citation omitted).

2016See Seskey, supra (explaining “[t]hough not technically waivable, a legality [of sentence] claim may nevertheless be lost should it be raised for the first time in an untimely PCRA petition for which no time-bar exception applies, thus depriving the court of jurisdiction over the claim[]”) (brackets in original; citation omitted). -8- J-S29024-15 Based on the foregoing, we conclude the PCRA court properly dismissed Appellant’s PCRA petition as untimely.

2015See 42 Pa.C.S.A. § 9545(b)(1)(iii) (allowing a time-bar exception for “a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania … and has been held by that court to apply retroactively[]”) (emphasis added); Commonwealth v. Seskey, 86 A.3d 237, 243 (Pa. Super. 2014) (explaining substantive claims cannot overcome Section 9545(b)(1)(iii) and Cunningham), appeal denied, 101 A.3d 103 (Pa. 2014).

2020See Commonwealth v. Lee, 206 A.3d 1, 7-11 (Pa.Super. 2019) (en banc) (holding Miller applies only to those who were under the age of eighteen at the time they committed the offense); Commonwealth v. Montgomery, 181 A.3d 359, 366 (Pa.Super. 2018) (en banc) (holding that the High Court’s ruling in Montgomery v. Louisiana did not extend Miller’s holding to individuals who committed homicides after they reached the age of 18).

2019See Commonwealth -3- J-S77043-18 v. Furgess, 149 A.3d 90, 94 (Pa. Super. 2016) (citing Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013)); see also Commonwealth v. Montgomery, 181 A.3d 359, 366 (Pa. Super. 2018) (en banc) (reaffirming the holding in Furgess that Montgomery v. Louisiana did not extend Miller’s holding to individuals who committed homicides after they reached the age of 18).

2018As a result, I conclude that like the FBI forensic analysis in Chmiel, Robinson's allegations cannot satisfy the time-bar exception, "because the purported newly-discovered facts do not affect his case." Chmiel, 173 A.3d at 633 n.2 (Mundy, J., dissenting); Blakeney, 193 A.3d at 370 (Mundy, J., OISA).

2018As a result, I conclude that like the FBI forensic analysis in Chmiel , Robinson's allegations cannot satisfy the time-bar exception, "because the purported newly-discovered facts do not affect his case." Chmiel , 173 A.3d at 633 n.2 (Mundy, J., dissenting); Blakeney , 193 A.3d at 370 (Mundy, J., OISA).

2020See Mitchell, 105 A.3d at 1265 ; Lawson, 90 A.3d at 4 .

2020See Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013) (stating the timeliness of a PCRA petition is jurisdictional); Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (explaining that, when a petition is untimely, the PCRA court is precluded from reaching the merits of the petition). -4-