J-S49002-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
GENE W. MILLER
Appellant No. 3536 EDA 2015
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. FILED JULY 05, 2016
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
____________________________________________
* Former Justice specially assigned to the Superior Court. J-S49002-16
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
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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,
-3- J-S49002-16
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
-4- J-S49002-16
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.
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J-S49002-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
GENE W. MILLER
Appellant No. 3536 EDA 2015
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. FILED JULY 05, 2016
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
____________________________________________
* Former Justice specially assigned to the Superior Court. J-S49002-16
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
-2- J-S49002-16
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,
-3- J-S49002-16
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
-4- J-S49002-16
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.
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.
PCRA Court Opinion, 12/18/15, at 3-4.
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.1 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 ____________________________________________
1 Appellant filed a supplement to his original appellate brief.
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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.
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.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/5/2016
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