Com. v. Tillman, A.

• Court: Superior Court of Pennsylvania
• Decided: January 22, 2016
• Docket: 1378 EDA 2015
• Status: Unpublished

Opinion

J-S12010-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

AQUIL TILLMAN

Appellant No. 1378 EDA 2015

Appeal from the PCRA Order April 27, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0403711-1997

BEFORE: MUNDY, J., OLSON, J., and STRASSBURGER, J.*

JUDGMENT ORDER BY MUNDY, J.: FILED JANUARY 22, 2016

Appellant, Aquil Tillman, appeals pro se from the April 27, 2015 order

dismissing, as untimely, his second 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 August 10, 1999, the trial court imposed an aggregate sentence of

life imprisonment without the possibility of parole, after Appellant was found

guilty of one count each of first-degree murder, aggravated assault, robbery,

criminal conspiracy, and possession of an instrument of a crime.1 This Court

affirmed Appellant’s judgment of sentence on April 16, 2001, and our ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S.A. §§ 2502(a), 2702(a), 3701(a), 903(a), and 907(a), respectively. J-S12010-16

Supreme Court denied Appellant’s petition for allowance of appeal on

September 25, 2001. Commonwealth v. Tillman, 778 A.2d 739 (Pa.

Super. 2001) (unpublished memorandum), appeal denied, 790 A.2d 1016

(Pa. 2001). As Appellant did not seek a writ of certiorari from the United

States Supreme Court, his judgment of sentence became final on December

24, 2001 when the period for filing a certiorari petition expired. See 42

Pa.C.S.A. § 9545(b)(3) (stating, “a judgment becomes 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[]”); U.S. Sup. Ct. R. 13(1) (stating,

“[a] petition for a writ of certiorari seeking review of a judgment of a lower

state court that is subject to discretionary review by the state court of last

resort is timely when it is filed with the Clerk within 90 days after entry of

the order denying discretionary review[]”).2 Appellant filed the instant

petition on June 23, 2010; as a result, it was facially untimely. See

generally 42 Pa.C.S.A. § 9545(b)(1).

Instantly, Appellant argues that his petition is timely under the new

constitutional right exception because the United States Supreme Court’s

____________________________________________ 2 We note Appellant filed his first PCRA petition on June 11, 2003. The PCRA court dismissed said petition on January 7, 2005. This Court affirmed on September 16, 2005, and Appellant did not file a petition for allowance of appeal with our Supreme Court. Commonwealth v. Tillman, 888 A.2d 12 (Pa. Super. 2005) (unpublished memorandum).

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decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), should be

retroactively applied. Appellant’s Brief at 8-11. However, our Supreme

Court has rejected this argument.3 Commonwealth v. Cunningham, 81

A.3d 1, 11 (Pa. 2013), cert. denied, Cunningham v. Pennsylvania, 134 S.

Ct. 2724 (2014). To the extent Appellant’s brief can be read to argue that

this Court should give broader retroactive effect to Miller under Danforth v.

Minnesota, 552 U.S. 264 (2008), this Court lacks the judicial power to

decide that question for the purposes of the PCRA time-bar. See 42

Pa.C.S.A. § 9545(b)(1)(iii) (allowing a time-bar exception for “a

constitutional right that was recognized by the Supreme Court of the United

States or the Supreme Court of Pennsylvania … and has been held by that

court to apply retroactively[]”) (emphasis added).

Based on the foregoing, we conclude the PCRA court properly

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

court’s April 27, 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: 1/22/2016

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