Com. v. White, N.

• Court: Superior Court of Pennsylvania
• Decided: July 14, 2015
• Docket: 455 WDA 2015
• Status: Unpublished

Opinion

J-S44042-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

NICHOLAS ANDREW WHITE

Appellant No. 455 WDA 2015

Appeal from the Order Entered March 11, 2015 In the Court of Common Pleas of Butler County Criminal Division at No(s): CP-10-CR-0011435-1998

BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.

JUDGMENT ORDER BY LAZARUS, J.: FILED JULY 14, 2015

Nicholas Andrew White appeals from the order of the Court of Common

Pleas of Butler County that dismissed as untimely his petition filed pursuant

to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. For the

following reasons we affirm.

On September 28, 1999, the trial court sentenced White to life

imprisonment without parole for homicide, plus two to four months’

incarceration for abuse of a corpse. White was seventeen years old when he

committed the underlying offenses.

White filed a PCRA petition on July 9, 2010. Counsel was appointed

and filed three amended petitions. On November 13, 2013, the court stayed

the proceedings pending the decision by our Supreme Court in

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013). On February 9, J-S44042-15

2015, the court issued an order notifying White of its intention to dismiss his

PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907(1) on the

basis that the petition was untimely, and accordingly, the court lacked

jurisdiction to consider it. On March 11, 2015, the court dismissed the

petition, and this appeal followed.1

Section 9545(b)(1) of the PCRA provides that a petition must be filed

within one year of the date the judgment of sentence becomes final.2 Here,

following imposition of sentence on September 28, 1999, White filed a timely

appeal to this Court, which affirmed his judgment of sentence on September

26, 2000. White’s sentence became final on October 26, 2000, when the

period in which to file a petition for allowance of appeal expired. See

Pa.R.A.P. 1113(a). Accordingly, White had until October 26, 2001, to file a

PCRA petition, unless he could allege and prove that “the right asserted is a

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

States or the Supreme Court of Pennsylvania after the time period provided

in this section and has been held by that court to apply retroactively.” 42

Pa.C.S. § 9545(b)(1)(iii).

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1 “This Court applies a de novo standard of review to the PCRA court’s legal conclusions.” Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011). 2 For purposes of the PCRA, “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.” 42 Pa.C.S. § 9545(b)(3).

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In Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012), the

United States Supreme Court held that “the Eighth Amendment forbids a

sentencing scheme that mandates life in prison without the possibility of

parole for juvenile offenders.” Id. at 2469. However, Miller did not

address whether its holding applies to individuals whose judgments of

sentence were final at the time of the Miller decision. In Cunningham,

supra, our Supreme Court held that Miller does not apply retroactively to

cases on collateral appeal. See also Commonwealth v. Cristina, ___

A.3d ___, 2015 WL 1730538 at *4, where this Court held that “in the wake

of Cunningham, it is clear that neither the United States Supreme Court,

nor the Pennsylvania Supreme Court, has held that the rule in Miller applies

retroactively.”

Based on Cunningham, the trial court properly concluded that White

could not rely on Miller to establish the exception set forth in section

9545(b)(1)(iii) of the PCRA. Therefore, White’s petition was untimely and

the court lacked jurisdiction to entertain the petition.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/14/2015

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