Opinion
J-S49002-16 No. 3536 EDA 2015
07-05-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. GENE W. MILLER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order entered November 2, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division, at No(s): CP-51-CR-0507091-1984 BEFORE: PANELLA J., and OLSON, J., and STEVENS, P.J.E. MEMORANDUM BY PANELLA, J.
Former Justice specially assigned to the Superior Court.
Appellant, Gene W. Miller, appeals pro se from the order dismissing as untimely his latest petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-46. We affirm.
On March 16, 1984, Appellant, then twenty-two years old, stabbed to death a teenaged boy in a vacant lot in Philadelphia. Ultimately, Appellant entered a guilty to plea to murder generally. The trial court accepted the guilty plea, determined that the degree of guilt was first-degree, and, on October 30, 1984, sentenced him to life in prison without the possibility of parole. After the trial court denied his post-sentence motion in which he sought to withdraw his plea, Appellant filed a timely appeal. We affirmed Appellant's judgment of sentence, and our Supreme Court denied his allocatur petition on May 4, 1987. See Commonwealth v. Miller ,512 A.2d 1290 (Pa. Super. 1986) (Table), allocatur denied, 527 A.2d 537 (Pa. 1987).
Over almost the next twenty years, Appellant filed unsuccessful PCRA petitions. Beginning in 2006, and again in 2009, Appellant filed petitions that were denied as untimely and affirmed by this Court. See Commonwealth v. Miller ,964 A.2d 441 (Pa. Super. 2008) (Table); Commonwealth v. Miller ,62 A.3d 447 (Pa. Super. 2012) (Table).
Undeterred, Appellant filed the instant petition—his eighth—on September 20, 2013. Without first obtaining leave of court, Appellant filed three amended petitions. On June 23, 2015, the PCRA court issued notice of its intent to dismiss Appellant's serial petition without a hearing. Appellant filed a response. The PCRA court dismissed the petition as untimely. This pro se appeal follows.
Before addressing Appellant's substantive issues we must first determine whether the PCRA court correctly concluded that Appellant's latest, pro se PCRA petition was untimely filed. It was. We explain why below.
The timeliness of a post-conviction petition is jurisdictional. See Commonwealth v. Hernandez ,79 A.3d 649, 651 (Pa. Super. 2013). 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 is final unless the petition alleges, and the petitioner proves, an exception to the time for filing the petition is met. See 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii). A PCRA petition invoking one of these statutory exceptions must "be filed within 60 days of the date the claims could have been presented." See Hernandez ,79 A.3d 651-52 (citations omitted). See also 42 Pa.C.S.A. § 9545(b)(2). Finally, the petitioner must plead exceptions to the PCRA's time bar in the petition, not for the first time on appeal. See Commonwealth v. Burton ,936 A.2d 521, 525 (Pa. Super. 2007). See also Pa.R.A.P. 302(a).
Appellant's judgment of sentence became final on July 3, 1987, when the sixty-day period to file writ of certiorari under the then-existing United States Supreme Court rules expired. See former U.S.Sup.Ct.R. 20.1; 42 Pa.C.S.A. § 9543(b)(3). Therefore, Appellant needed to file the petition at issue by July 5, 1988, in order for it to be timely. As Appellant filed the instant petition over a quarter of a century later, it is patently untimely unless he has satisfied his burden of pleading and proving that one of the enumerated exceptions applies.
Appellant has failed to prove the applicability of any of the exceptions to the PCRA's time bar. Initially, we note our agreement with the Commonwealth that the PCRA court did not need to consider the contents of Appellant's amended petitions because they were filed without first obtaining leave of court. See Commonwealth v. Baumhammers ,92 A.3d 708, 730 (Pa. 2014) (providing that leave to amend must be sought). Nevertheless, the PCRA court, after considering all of these filings, still concluded that Appellant had failed to meet his statutory burden. The PCRA court reasoned that
[Appellant] attempted to invoke the timeliness exception enumerated in 42 Pa.C.S.A. § 9545(b)(1)(iii). [He] argued that the United States Supreme Court's decision in Alleyne v. United States ,133 S.Ct. 2151 (2013), constituted an after recognized constitutional right exception to the PCRA time bar. In Alleyne , the United States Supreme Court overruled Harris v. United States ,536 U.S. 545 (2002), and held "that any fact that increases the mandatory minimum is an element [of the crime] that must be submitted to the jury." Alleyne , supra at 2155 (internal quotation marks omitted). [Appellant] claimed that Alleyne announced a new constitutional right that should be applied retroactively, and cited to Commonwealth v. Munday ,78 A.3d 661 (Pa. Super 2013) in support. However, the Alleyne decision is silent with regard to whether it applies retroactively to cases pending on collateral review and upon review, Munday held that Alleyne was applicable to cases on direct review at the time of its decision. Therefore, [Appellant] did not successfully invoke the after-recognized constitutional exception, and there was not jurisdiction to address the merits of his claim.
In his next claim, [Appellant] argued that he should be afforded relief pursuant to Miller v. Alabama ,132 S.Ct. 2455 (2012). In Miller v. Alabama ,132 S.Ct. at 2460, the United States Supreme Court held that "mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's probation against 'cruel and unusual['] punishments."
As an initial matter, in order to involve an exception to the [PCRA's] timeliness provision, there is a requirement that the petitioner file his claim "within 60 days of the date the claim could have been presented." 42 Pa.C.S.A. § 9545(b)(2). Pursuant to the after-recognized constitutional exception, the 60-day requirement begins from the date the decision was issued. The United States Supreme Court issued its decision in Miller on June 25, 2012. However, at this time, [Appellant's] appeal of his previous PCRA petition was pending. For his Miller claim to be timely, [Appellant] had to file it sixty days from "the
resolution of review of the pending PCRA petition by the highest court in which review is sought." Commonwealth v. Lark ,746 A.2d 585, 588 [(Pa. 2000)]. The Pennsylvania Supreme Court denied allocatur on March 27, 2013. [Appellant] did not file his petition raising Miller until September 20, 2013, well after the 60-day requirement. Therefore, Appellant was untimely in presenting this claim.PCRA Court Opinion, 12/18/15, at 3-4.
Even if his claim were timely, [Appellant] would not have been afforded relief. The Miller holding specifically limited itself to juveniles under the eighteen years of age who are sentenced to life without parole for committing the crime of murder. Although [Appellant] was sentenced to life without parole and convicted of murder, he was over the age of 18 at the time of the crime; therefore, the holding of Miller was inapplicable.
The PCRA court also correctly rejected Appellant's equal protection challenge to the application of Miller. See id.,at 4 (quoting Commonwealth v. Cintora ,69 A.3d 759, 764 (Pa. Super. 2013)). Finally, the PCRA court noted that Appellant's claims of ineffective assistance of counsel and court bias were waived because they could have been raised on direct appeal or in an earlier PCRA petition. See id.,at 5. See also 42 Pa.C.S.A. § 9544(b).
Like all of his pro se filings, Appellant's briefs present a rambling, prolix argument, the meaning of which is hard to decipher. To the extent he attempts to argue new exceptions to the PCRA's time bar, they are waived. See Burton. In addition, it is now well settled that the time restrictions of the PCRA are not subject to equitable tolling. See generally Commonwealth v. Callahan ,101 A.3d 118, 123 (Pa. Super. 2014). Finally, Appellant cites to the United States Supreme Court's recent decision in Montgomery v. Louisiana ,136 S.Ct. 718 (2016), wherein the Court ruled that its prior decision in Miller had full retroactive effect. Montgomery is inapplicable. As noted, Appellant was an adult when he killed the victim in the vacant lot all those many years ago.
Appellant filed a supplement to his original appellate brief.
In sum, Appellant's latest PCRA petition is untimely. He has failed to meet his burden of proof with regard to any exception to the timeliness requirements of the PCRA. Thus, the PCRA court correctly concluded that it lacked jurisdiction and properly denied Appellant post-conviction relief.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/5/2016