Com. v. Nole, J.

• Court: Superior Court of Pennsylvania
• Decided: November 24, 2015
• Docket: 744 EDA 2015
• Status: Unpublished

Opinion

J-S63030-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JOHN F. NOLE

Appellant No. 744 EDA 2015

Appeal from the PCRA Order March 2, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0915321-1969

BEFORE: DONOHUE, J., MUNDY, J., and MUSMANNO, J.

JUDGMENT ORDER BY MUNDY, J.: FILED NOVEMBER 24, 2015

Appellant, John F. Nole, appeals pro se from the March 2, 2015 order

denying as untimely his seventh petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful

review, we affirm.

On March 31, 1971, the trial court imposed an aggregate sentence of

life imprisonment without the possibility of parole for first-degree murder1

and other offenses, committed by Appellant when he was 17-years-old, in

the course of a robbery and murder of an 81-year-old man. Our Supreme

Court affirmed Appellant’s judgment of sentence on July 11, 1972.

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1 18 Pa.C.S.A. § 2502(a). J-S63030-15

Commonwealth v. Nole, 292 A.2d 331 (Pa. 1972). Thereafter, Appellant

filed six PCRA petitions between 1972 and 2008. See Commonwealth v.

Nole, 965 A.2d 299 (Pa. Super. 2008) (affirming the PCRA court’s dismissal

of Appellant’s sixth PCRA as untimely, and setting forth a full factual and

procedural history of Appellant’s PCRA claims), appeal denied 973 A.2d 1006

(Pa. 2009).

On July 12, 2010, Appellant filed, pro se, a patently untimely PCRA

petition that is the subject of this appeal. See 42 Pa.C.S.A. § 9545(b)(1)

(providing that a PCRA petition must be filed within one year of the date the

judgment becomes final). After a series of amended petitions, the PCRA

court issued a notice to dismiss the petition without a hearing pursuant to

Pennsylvania Rule of Criminal Procedure 907 on December 12, 2014.

Appellant did not file a response. On March 2, 2015, the PCRA court denied

Appellant’s PCRA petition as untimely. Appellant timely filed, pro se, a

notice of appeal on March 9, 2015.2

Here, the PCRA court lacked jurisdiction to consider the merits of

Appellant’s untimely PCRA petition unless one “of the three limited

exceptions to the time for filing the petition, set forth at 42 Pa.C.S.A.

2 The PCRA court did not order Appellant to file a concise statement of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). The PCRA court adopted its March 2, 2015 opinion for purposes of Rule 1925(a).

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§ 9545(b)(1)(i), (ii), and (iii), [apply].” Commonwealth v. Lawson, 90

A.3d 1, 5 (Pa. Super. 2014) (citation omitted). In an attempt to plead one

of the time-bar exceptions, Appellant argues that the United States Supreme

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

retroactively to his case. Appellant’s Brief at 10. Even if we were to

construe this issue as arguing that a time-bar exception applies, our

Supreme Court has rejected this retroactivity argument.3 See generally 42

Pa.C.S.A. § 9545(b)(1)(iii); Commonwealth v. Cunningham, 81 A.3d 1,

11 (Pa. 2013), cert. denied, Cunningham v. Pennsylvania, 134 S. Ct.

2724 (2014). As a result, the PCRA court lacked jurisdiction to consider the

merits of Appellant’s claims.

Based on the foregoing, we conclude the PCRA court properly

dismissed Appellant’s seventh PCRA petition as untimely. Accordingly, the

PCRA court’s March 2, 2015 order is affirmed.

Order affirmed.

3 On March 23, 2015, the Supreme Court granted certiorari in Montgomery v. Louisiana, 135 S. Ct. 1546 (2015), which presents the Miller retroactivity question. Nonetheless, until the United States Supreme Court issues its decision, Cunningham remains dispositive of the issue in Pennsylvania.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/24/2015

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