Com. v. Faulcon, T. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRELL FAULCON :
:
Appellant : No. 3269 EDA 2017
Appeal from the PCRA Order September 12, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0308001-1995
BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY LAZARUS, J.: FILED JUNE 12, 2018
Terrell Faulcon appeals, pro se, from the order of the Court of Common
Pleas of Philadelphia County dismissing as untimely his petition under the Post
Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”). We affirm.
On September 25, 1996, a jury convicted Faulcon of one count each of
first-degree murder, conspiracy and possession of instruments of crime
(“PIC”). Faulcon was sentenced to a mandatory term of life imprisonment for
the murder conviction, followed by consecutive terms of imprisonment of five
to ten years for conspiracy and two to five years for PIC. This Court affirmed
his judgment of sentence on April 6, 2000. On November 21, 2000, our
Supreme Court denied Faulcon’s application for permission to file a petition
for allowance of appeal nunc pro tunc.
Faulcon filed a pro se PCRA petition on April 9, 2001. Counsel filed an
amended petition on October 22, 2001, which was denied by the PCRA court
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on June 17, 2002. This Court affirmed the PCRA court’s order on June 18,
2003, and our Supreme Court denied allowance of appeal on March 30, 2004.
Faulcon filed the instant PCRA petition, pro se, on August 20, 2012. On
June 20, 2017,1 the PCRA court issued a notice of intent to dismiss pursuant
to Pa.R.Crim.P. 907. Faulcon filed objections to the court’s Rule 907 notice.
The court dismissed Faulcon’s petition on September 12, 2017. This timely
appeal follows, in which Faulcon asserts that the PCRA court erred in
dismissing his petition as untimely.2
We begin by noting that:
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA
court is supported by evidence of record and is free of legal error.
In evaluating a PCRA court’s decision, our scope of review is
limited to the findings of the PCRA court and the evidence of
record, viewed in the light most favorable to the prevailing party
at the trial level.
Commonwealth v. Weatherill, 24 A.3d 435, 438 (Pa. Super. 2011).
A PCRA petition, including a second or subsequent petition, must be filed
within one year of the date the underlying judgment of sentence becomes
final. See 42 Pa.C.S.A. § 9545(b)(1); see also Commonwealth v. Bretz,
830 A.2d 1273, 1275 (Pa. Super. 2003). A judgment is deemed final “at the
conclusion of direct review, including discretionary review in the Supreme
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1It is unclear from the certified record why the PCRA court took nearly five
years to rule on Faulcon’s petition.
2The PCRA court did not order Faulcon to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal and he did not do so.
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Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3); see also
Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super. 2006). Here,
Faulcon’s’ judgment of sentence became final on or about May 6, 2000, upon
the expiration of time for seeking allowance of appeal to the Pennsylvania
Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 1113(a). Thus,
Faulcon had one year from that date, or until May 6, 2001, to file a timely
PCRA petition. See 42 Pa.C.S.A. § 9545(b). Faulcon did not file the instant
petition, his second, until August 20, 2012, more than twelve years after his
judgment of sentence became final. Accordingly, the PCRA court had no
jurisdiction to entertain Faulcon’s petition unless he pleaded and proved one
of the three statutory exceptions to the time bar.3 See 42 Pa.C.S.A. §
9545(b)(1). A petition invoking one of the exceptions must be filed within
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3 The statutory exceptions to the time bar are as follows:
(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)(i)-(iii).
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sixty days of the date the claim could have been presented. 42 Pa.C.S.A. §
9545(b)(2).
Faulcon attempts to circumvent the time bar by asserting the “newly
recognized constitutional right” exception under subsections 9545(b)(1)(iii).
Specifically, Faulcon asserts that he is entitled to relief pursuant to
Montgomery v. Louisiana, 136 S.Ct. 718 (2016), and Miller v. Alabama,
567 U.S. 460 (2012). In Miller, the Supreme Court held 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
punishment. In Montgomery, the Court held that Miller announced a new
substantive constitutional rule that applied retroactively on state collateral
review. Although Faulcon concedes that he was over the age of 18 at the time
he committed his crime, he claims that Miller should apply to him on equal
protection grounds, arguing that
[e]veryone with an immature brain is similarly situated in
comparison to adults with mature brains. Therefore, it would be
a violation of equal protection for the courts to treat anyone with
an immature brain as an adult, whether their brain is immature
because they are 17, 24, or if their maturity has been delayed
beyond age 25 by chronic traumatic abuse.
Brief of Appellant, at 9. Faulcon is not entitled to relief.
It is undisputed that Faulcon committed his crime at the age of 24. The
Supreme Court’s ruling in Miller applies solely to defendants who had not
reached the age of majority, or eighteen years of age, at the time they
committed their crime. Accordingly, on its face, Miller is inapplicable to
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Faulcon’s case. Moreover, we have previously rejected an equal protection
claim identical to that proffered by Faulcon, concluding that a “contention that
a newly-recognized constitutional right should be extended to others does not
render [a] petition timely pursuant to section 9545(b)(1)(iii).”
Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super. 2013). See also
Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016) (“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)”).
Because Faulcon has not established one of the exceptions to the PCRA time
bar, the PCRA court properly dismissed his petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/12/18
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