Com. v. Dunn, A.

• Court: Superior Court of Pennsylvania
• Decided: March 18, 2015
• Docket: 1207 WDA 2014
• Status: Unpublished

Opinion

J-S17031-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ARTHUR DUNN

Appellant No. 1207 WDA 2014

Appeal from the PCRA Order July 18, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0008051-1997

BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*

JUDGMENT ORDER BY GANTMAN, P.J.: FILED MARCH 18, 2015

Appellant, Arthur Dunn, appeals from the order entered in the

Allegheny County Court of Common Pleas, dismissing his serial petition filed

under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§ 9541-

9546. On June 1, 1997, fifteen-year-old Appellant participated in a robbery,

which resulted in the victim’s death. A jury convicted Appellant of second-

degree murder and related offenses. On April 12, 1999, the court sentenced

Appellant to life imprisonment without the possibility of parole. This Court

affirmed the judgment of sentence on August 22, 2000, and our Supreme

Court denied allowance of appeal on March 30, 2001. See Commonwealth

v. Dunn, 764 A.2d 1121 (Pa.Super. 2000), appeal denied, 565 Pa. 663, 775

A.2d 801 (2001). Appellant filed the current pro se PCRA petition on July 9,

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*Former Justice specially assigned to the Superior Court. J-S17031-15

2012. The PCRA court appointed counsel, who filed a petition to stay

pending resolution of Commonwealth v. Cunningham, 622 Pa. 543, 81

A.3d 1 (2013), which the PCRA court granted. Thereafter, the PCRA court

issued Rule 907 notice and dismissed the petition on July 18, 2014. On July

25, 2014, Appellant timely filed a notice of appeal. The PCRA court ordered

Appellant to file a Rule 1925(b) statement, and Appellant timely complied.

The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Hackett, 598 Pa. 350, 956 A.2d 978 (2008), cert.

denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009). A PCRA

petition must be filed within one year of the date the underlying judgment

becomes final. 42 Pa.C.S.A § 9545(b)(1). A judgment is deemed final at

the conclusion of direct review or at the expiration of time for seeking

review. 42 Pa.C.S.A. § 9545(b)(3). The three statutory exceptions to the

timeliness provisions in the PCRA allow for very limited circumstances under

which the late filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).

A petitioner asserting a timeliness exception must file a petition within sixty

days of the date the claim could have been presented. 42 Pa.C.S.A. §

9545(b)(2). When asserting the newly created constitutional right exception

under section 9545(b)(1)(iii), “a petitioner must prove that there is a ‘new’

constitutional right and that the right ‘has been held’ by that court to apply

retroactively.” Commonwealth v. Chambers, 35 A.3d 34, 41 (Pa.Super.

2011), appeal denied, 616 Pa. 625, 46 A.3d 715 (2012).

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Instantly, Appellant’s judgment of sentence became final on June 28,

2001. Appellant filed his current petition on July 9, 2012, more than eleven

years after his sentence became final; thus, the petition is patently untimely.

See 42 Pa.C.S.A. § 9545(b)(1). Appellant attempts to invoke Section

9545(b)(1)(iii), contending his sentence is unconstitutional pursuant to

Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).

Nevertheless, our Supreme Court has ruled Miller does not apply

retroactively to sentences which became final before the filing date of Miller

(June 25, 2012), see Cunningham, supra, and the U.S. Supreme Court

has denied certiorari in Cunningham. See Cunningham v.

Pennsylvania, ___ U.S. ___, 134 S.Ct. 2724, 189 L.Ed.2d 763 (2014).

Thus, the PCRA court properly dismissed Appellant’s petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/18/2015

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