J-S95029-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
JORGE GEORGE FRATICELLI
Appellant No. 1997 EDA 2016
Appeal from the PCRA Order May 25, 2016 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0004827-1994
BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED MAY 23, 2017
Jorge George Fraticelli appeals from the May 25, 2016 order entered in
the Delaware County Court of Common Pleas dismissing as untimely his
petition filed under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.
We affirm.
On July 18, 1995, a jury convicted Fraticelli of second-degree murder,
robbery, conspiracy, and firearms not to be carried without a license. 1 On
September 26, 1995, the trial court sentenced Fraticelli to life imprisonment
for the second-degree murder conviction, a concurrent term of 6 to 24
months’ imprisonment for the conviction for firearms not to be carried
____________________________________________
1 18 Pa.C.S. §§ 2502, 3701(a)(2), 903(a)(1), and 6106(a), respectively. J-S95029-16
without a license, and a concurrent term of 36 to 72 months’ imprisonment
for the conspiracy conviction. On November 3, 1997, this Court affirmed the
judgment of sentence. On July 30, 1998, the Pennsylvania Supreme Court
denied his petition for allowance of appeal.
Fraticelli then filed numerous petitions in state and federal court
seeking post-conviction relief, all of which were denied.
On February 25, 2016, Fraticelli filed the instant PCRA petition alleging
that he was entitled to relief pursuant to Miller v. Alabama, 132 S.Ct. 2455
(2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016). On March
9, 2016, the PCRA court issued a notice of intent to dismiss the PCRA
petition without a hearing pursuant to Pennsylvania Rule of Criminal
Procedure 907, and, on May 25, 2016,2 it dismissed the petition as untimely.
On June 24, 2016, Fraticelli filed a timely notice of appeal.
On appeal, Fraticelli raises the following issue for our review:
1. Whether [Fraticelli’s] Instant PCRA Petition Predicated Upon The United States Supreme Court’s Decision Announced In Miller v. Alabama, 567 U.S. (2012), Is Timely Filed Under The Purview Of 42 Pa.C.S. §9545(b)(1)(iii)?
II. Whether The Court’s Imposition Of An Illegal Mandatory Life Without Parole Sentence, For A Homicide Offense Committed While [Fraticelli] Was A Juvenile, Violates The ____________________________________________
2 Although the order dismissing the PCRA petition was dated May 24, 2016, the docket states it was not served on the parties until May 25, 2016. See Pa.R.A.P. 108(a)(1) (stating that day of entry shall be day clerk of court mailed copies of order to parties).
-2- J-S95029-16
Eighth Amendment’s Prohibition On “Cruel And Unusual Punishments,’” As A Result Of:
(A). Miller’s Application Being Binding Upon All States;
(B). Appellant Is A Juvenile Under Pennsylvania Law; And
(C). Equal Protection Demands Miller's Application.
Fraticelli’s Br. at 2.
Our standard of review from the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).
It is well settled that “the timeliness of a PCRA petition is a
jurisdictional requisite.” Commonwealth v. Brown, 111 A.3d 171, 175
(Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015). A PCRA petition
“including a second or subsequent petition, shall be filed within one year of
the date the judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A
judgment is final “at the conclusion of direct review, including discretionary
review in the Supreme Court of the United States and the Supreme Court of
Pennsylvania, or at the expiration of time for seeking the review.” 42
Pa.C.S. § 9545(b)(3).
This Court affirmed Fraticelli’s judgement of sentence on November 3,
1997, and the Supreme Court denied allowance of appeal on July 30, 1998.
Therefore, as Fraticelli concedes, his current PCRA petition filed on February
25, 2016 is facially untimely.
-3- J-S95029-16
Fraticelli’s petition remains untimely unless it alleges and proves a
PCRA time-bar exception. Courts may consider a PCRA petition filed more
than one year after a judgment of sentence became final only if the
petitioner alleges and proves one of the following three statutory exceptions:
(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. § 9545(b)(1)(i)-(iii); see Brown, 111 A.3d at 175. In addition,
when invoking an exception to the PCRA time bar, the petition must “be filed
within 60 days of the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2).
Fraticelli argues that his petition was timely because he asserted a
constitutional right that was held to apply retroactively. Fraticelli relies on
the United States Supreme Court’s decisions in Miller and Montgomery. In
Miller, the Supreme Court held that a sentence of life imprisonment without
the possibility of parole was unconstitutional when imposed upon defendants
who were “under the age of 18 at the time of their crimes.” 132 S.Ct. at
2460. In Montgomery, the Supreme Court held that its Miller decision
-4- J-S95029-16
applied retroactively to cases on state collateral review. Montgomery, 136
S.Ct. at 732.
Fraticelli was 18 at the time he committed the murder for which he
was convicted.3 We have held that Miller’s prohibition of life without parole
sentences does not apply to those who were 18 or older at the time of the
offense.4 See Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa.Super.
3 Fraticelli was born on February 28, 1976 and committed the offenses on December 12, 1994. 4 Fraticelli relies on the definition of “minor” contained in the Statutory Construction Act of 1972 and the definition of “child” contained in the Juvenile Act to support his contention that Miller should apply to him.
The Statutory Construction Act of 1972 provides: “word and phrases, when used in any statute finally enacted on or after September 1, 1937, unless the context clearly indicates otherwise, shall have the meanings given to them in this section: . . . “Minor.” An individual under the age of 21 years.” 1 Pa.C.S. § 1991. Further, the Juvenile Act provides the following definition:
“Child.” An individual who:
(1) is under the age of 18 years;
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J-S95029-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
JORGE GEORGE FRATICELLI
Appellant No. 1997 EDA 2016
Appeal from the PCRA Order May 25, 2016 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0004827-1994
BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED MAY 23, 2017
Jorge George Fraticelli appeals from the May 25, 2016 order entered in
the Delaware County Court of Common Pleas dismissing as untimely his
petition filed under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.
We affirm.
On July 18, 1995, a jury convicted Fraticelli of second-degree murder,
robbery, conspiracy, and firearms not to be carried without a license. 1 On
September 26, 1995, the trial court sentenced Fraticelli to life imprisonment
for the second-degree murder conviction, a concurrent term of 6 to 24
months’ imprisonment for the conviction for firearms not to be carried
____________________________________________
1 18 Pa.C.S. §§ 2502, 3701(a)(2), 903(a)(1), and 6106(a), respectively. J-S95029-16
without a license, and a concurrent term of 36 to 72 months’ imprisonment
for the conspiracy conviction. On November 3, 1997, this Court affirmed the
judgment of sentence. On July 30, 1998, the Pennsylvania Supreme Court
denied his petition for allowance of appeal.
Fraticelli then filed numerous petitions in state and federal court
seeking post-conviction relief, all of which were denied.
On February 25, 2016, Fraticelli filed the instant PCRA petition alleging
that he was entitled to relief pursuant to Miller v. Alabama, 132 S.Ct. 2455
(2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016). On March
9, 2016, the PCRA court issued a notice of intent to dismiss the PCRA
petition without a hearing pursuant to Pennsylvania Rule of Criminal
Procedure 907, and, on May 25, 2016,2 it dismissed the petition as untimely.
On June 24, 2016, Fraticelli filed a timely notice of appeal.
On appeal, Fraticelli raises the following issue for our review:
1. Whether [Fraticelli’s] Instant PCRA Petition Predicated Upon The United States Supreme Court’s Decision Announced In Miller v. Alabama, 567 U.S. (2012), Is Timely Filed Under The Purview Of 42 Pa.C.S. §9545(b)(1)(iii)?
II. Whether The Court’s Imposition Of An Illegal Mandatory Life Without Parole Sentence, For A Homicide Offense Committed While [Fraticelli] Was A Juvenile, Violates The ____________________________________________
2 Although the order dismissing the PCRA petition was dated May 24, 2016, the docket states it was not served on the parties until May 25, 2016. See Pa.R.A.P. 108(a)(1) (stating that day of entry shall be day clerk of court mailed copies of order to parties).
-2- J-S95029-16
Eighth Amendment’s Prohibition On “Cruel And Unusual Punishments,’” As A Result Of:
(A). Miller’s Application Being Binding Upon All States;
(B). Appellant Is A Juvenile Under Pennsylvania Law; And
(C). Equal Protection Demands Miller's Application.
Fraticelli’s Br. at 2.
Our standard of review from the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).
It is well settled that “the timeliness of a PCRA petition is a
jurisdictional requisite.” Commonwealth v. Brown, 111 A.3d 171, 175
(Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015). A PCRA petition
“including a second or subsequent petition, shall be filed within one year of
the date the judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A
judgment is final “at the conclusion of direct review, including discretionary
review in the Supreme Court of the United States and the Supreme Court of
Pennsylvania, or at the expiration of time for seeking the review.” 42
Pa.C.S. § 9545(b)(3).
This Court affirmed Fraticelli’s judgement of sentence on November 3,
1997, and the Supreme Court denied allowance of appeal on July 30, 1998.
Therefore, as Fraticelli concedes, his current PCRA petition filed on February
25, 2016 is facially untimely.
-3- J-S95029-16
Fraticelli’s petition remains untimely unless it alleges and proves a
PCRA time-bar exception. Courts may consider a PCRA petition filed more
than one year after a judgment of sentence became final only if the
petitioner alleges and proves one of the following three statutory exceptions:
(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. § 9545(b)(1)(i)-(iii); see Brown, 111 A.3d at 175. In addition,
when invoking an exception to the PCRA time bar, the petition must “be filed
within 60 days of the date the claim could have been presented.” 42 Pa.C.S.
§ 9545(b)(2).
Fraticelli argues that his petition was timely because he asserted a
constitutional right that was held to apply retroactively. Fraticelli relies on
the United States Supreme Court’s decisions in Miller and Montgomery. In
Miller, the Supreme Court held that a sentence of life imprisonment without
the possibility of parole was unconstitutional when imposed upon defendants
who were “under the age of 18 at the time of their crimes.” 132 S.Ct. at
2460. In Montgomery, the Supreme Court held that its Miller decision
-4- J-S95029-16
applied retroactively to cases on state collateral review. Montgomery, 136
S.Ct. at 732.
Fraticelli was 18 at the time he committed the murder for which he
was convicted.3 We have held that Miller’s prohibition of life without parole
sentences does not apply to those who were 18 or older at the time of the
offense.4 See Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa.Super.
3 Fraticelli was born on February 28, 1976 and committed the offenses on December 12, 1994. 4 Fraticelli relies on the definition of “minor” contained in the Statutory Construction Act of 1972 and the definition of “child” contained in the Juvenile Act to support his contention that Miller should apply to him.
The Statutory Construction Act of 1972 provides: “word and phrases, when used in any statute finally enacted on or after September 1, 1937, unless the context clearly indicates otherwise, shall have the meanings given to them in this section: . . . “Minor.” An individual under the age of 21 years.” 1 Pa.C.S. § 1991. Further, the Juvenile Act provides the following definition:
“Child.” An individual who:
(1) is under the age of 18 years;
(2) is under the age of 21 years who committed an act of delinquency before reaching the age of 18 years; or
(3) is under the age of 21 years and was adjudicated dependent before reaching the age of 18 years, who has requested the court to retain jurisdiction and who remains under the jurisdiction of the court as a dependent child because the court has determined that the child is:
(i) completing secondary education or an equivalent credential; (Footnote Continued Next Page)
-5- J-S95029-16
2013) (concluding that, for appellants, who were 19 and 21 at time of
offense, “the holding in Miller does not create a newly-recognized
constitutional right that can serve as the basis for relief”); 5 see also
Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.Super. 2016) _______________________ (Footnote Continued)
(ii) enrolled in an institution which provides postsecondary or vocational education;
(iii) participating in a program actively designed to promote or remove barriers to employment;
(iv) employed for at least 80 hours per month; or
(v) incapable of doing any of the activities described in subparagraph (i), (ii), (iii) or (iv) due to a medical or behavioral health condition, which is supported by regularly updated information in the permanency plan of the child.
42 Pa.C.S. § 6302. We have found no cases applying these statutes to determine whether Miller applies to a particular defendant. In addition, the Statutory Construction Act is inapplicable because we are applying case law, not a statute, and it is clear Miller applies only those under the age of 18. Further, Fraticelli did not “commit[] an act of delinquency before reaching the age of 18” and was not adjudicated dependent before reaching the age of 18. See 42 Pa.C.S. § 6302. 5 In Cintora, this Court rejected the appellants’ argument that it would violate the equal protection clause to deny them relief pursuant to Miller. The appellants had argued that Miller should apply to defendants under the age of 25 “because Miller created a new Eighth Amendment right, that those whose brains were not fully developed at the time of their crimes are free from mandatory life without parole sentences, and because research indicates that the human mind does not fully develop or mature until the age of 25.” 69 A.3d at 764. The Court noted that the appellants’ “contention that a newly-recognized constitutional right should be extended to others does not render their petition timely pursuant to section 9545(b)(1)(iii).” Id. (emphasis in original).
-6- J-S95029-16
(reaffirming Cintora’s holding that petitioners who were 18 or older “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”).6
In sum, because Fraticelli was 18 at the time of the offense, Miller
does not apply, and Fraticelli has failed to satisfy the new constitutional right
exception to the PCRA time-bar. Therefore, we conclude the PCRA court did
not err in dismissing the petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/23/2017
6 This Court has, at times, stated that petitioners who were “older than 18” were not entitled to relief. See Furgess, 149 A.3d at 94. However, the Supreme Court in Miller held “that mandatory life 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 punishments.’” We will not extend this holding to those who were the age of 18 at the time of the offense.
-7- J-S95029-16
-8-