J-S63031-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                   Appellee                 :
                                            :
             v.                             :
                                            :
STEVE JONES,                                :
                                            :
                   Appellant                :           No. 777 EDA 2015

           Appeal from the PCRA Order entered on February 18, 2015
              in the Court of Common Pleas of Delaware County,
                Criminal Division, No. CP-23-CR-0001881-2002

BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED NOVEMBER 13, 2015

        Steve Jones (“Jones”) appeals from the Order dismissing his “Petition

for Habeas Corpus Relief Under Article I, Section 14 of the Pennsylvania

Constitution and for Post-Conviction Relief Under the Post Conviction Relief

Act [“PCRA”1].” We affirm.

        Following a jury trial, Jones was found guilty of robbery and second

degree murder in connection with the robbery and shooting of an ice cream

truck driver in Chester on April 20, 2002.      Jones was sixteen years old at

the time of the murder.        The trial court sentenced Jones to a mandatory

term of life in prison. On June 22, 2004, this Court affirmed the judgment of

sentence.    Commonwealth v. Jones, 858 A.2d 1276 (Pa. Super. 2004)

(unpublished memorandum).



1
    See 42 Pa.C.S.A. §§ 9541-9546.
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      Jones filed a PCRA petition on December 14, 2007. The PCRA court

dismissed the petition as untimely filed, and this Court affirmed.           See

Commonwealth v. Jones, 998 A.2d 1005 (Pa. Super. 2010) (unpublished

memorandum). On June 29, 2010, Jones filed another PCRA Petition. The

PCRA court dismissed the Petition on August 3, 2010. This Court affirmed

the dismissal.   See Commonwealth v. Jones, 106 A.3d 159 (Pa. Super.

2014) (unpublished memorandum).

      Jones filed the instant counseled Petition on October 14, 2014.        The

PCRA court treated the Petition as a PCRA Petition. After issuing a Notice of

Intent to Dismiss pursuant to Pa.R.Crim.P. 907, the PCRA court dismissed

the Petition. Jones filed a timely Notice of Appeal.

      On appeal, Jones raises the following questions for our review:

      1. Does the failure to apply Miller v. Alabama[, 132 S. Ct.
         2455 (2012),2] retroactively[,] to a juvenile offender
         sentenced to life in prison without the possibility of parole for
         a conviction of second[-]degree felony murder[,] violate
         [Jones’s] rights under the U.S. Constitution or the
         Pennsylvania Constitution?

      2. Does habeas corpus provide [Jones] with a mechanism for
         relief?

      3. Did the [PCRA] court err in denying the [P]etition for [PCRA]
         relief without granting a hearing?

Brief for Appellant at 4 (footnote added).


2
  The Miller Court held that sentencing schemes mandating life-without-
parole sentences for juveniles, who committed their crimes while under the
age of eighteen, violated the Eighth Amendment prohibition on cruel and
unusual punishment. Miller, 132 S. Ct. at 2460.


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      Preliminarily, the PCRA court properly treated Jones’s Petition as a

PCRA Petition. The PCRA subsumes the remedy of habeas corpus where the

PCRA provides a remedy for the claim. See 42 Pa.C.S.A. § 9542 (providing

that “[t]he action established in this subchapter shall be the sole means of

obtaining collateral relief and encompasses all other common law and

statutory remedies for the same purpose that exists when this subchapter

takes effect, including habeas corpus.”); see also Commonwealth v.

Taylor, 65 A.3d 462, 466 (Pa. Super. 2013) (stating that “a defendant

cannot escape the PCRA time-bar by titling his petition or motion as a writ of

habeas corpus.”).     In his Petition, Jones challenges the legality of his

sentence based upon the holding in Miller.          See Commonwealth v.

Seskey, 86 A.3d 237, 243 (Pa. Super. 2014) (stating that issues pertaining

to Miller raise a legality of sentence challenge).       Thus, we will review

Jones’s claims under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2).3


3
   Jones cites to former Chief Justice Castille’s concurring opinion in
Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), wherein he stated
that “there is at least some basis in law for an argument that the claim is
cognizable via a petition under Pennsylvania’s habeas corpus statute.” Brief
for Appellant at 28 (quoting Cunningham, 81 A.3d at 18 (Castille, C.J.,
concurring)). However, Jones fails to demonstrate that this claim should be
addressed under habeas corpus instead of the PCRA. See Seskey, 86 A.3d
at 244 (stating that the appellant did not address how his Miller claim
“should be considered under the habeas corpus statute instead of under the
PCRA[,] a concern that Chief Justice Castille did not resolve definitively[.]”);
see also Commonwealth v. Thompson, 985 A.2d 928, 937 (Pa. 2009)
(stating that concurring opinions are not binding authority). Because the
PCRA provides a remedy for legality of sentence challenges, Jones’s claims
are not cognizable under habeas corpus.



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      Our standard of review regarding a PCRA court’s dismissal of a PCRA

petition is whether the PCRA court’s decision is supported by the evidence of

record and is free of legal error. Commonwealth v. Garcia, 23 A.3d 1059,

1061 (Pa. Super. 2011).

      Under the PCRA, any PCRA petition, “including a second or subsequent

petition, shall be filed within one year of the date that the judgment

becomes final[.]”    42 Pa.C.S.A. § 9545(b)(1).           A judgment of sentence

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   the   expiration   of   time   for   seeking   review.”   Id.

§ 9545(b)(3).    The PCRA’s timeliness requirements are jurisdictional in

nature and a court may not address the merits of the issues raised if the

PCRA petition was not timely filed. Commonwealth v. Albrecht, 994 A.2d

1091, 2093 (Pa. 2010).

      Here, Jones’s judgment of sentence became final in July 2004, upon

the expiration of the thirty-day period for filing a petition for allowance of

appeal with the Supreme Court of Pennsylvania.                 See 42 Pa.C.S.A.

§ 9545(b)(3). Thus, Jones’s instant Petition, filed on October 14, 2014, is

facially untimely under the PCRA.

      However, we may address an untimely PCRA Petition where the

appellant pleads and proves one of three exceptions.            See 42 Pa.C.S.A.

§ 9545(b)(1)(i-iii). Any PCRA petition invoking one of these exceptions must



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be filed within sixty days of the date the claim could have been presented.

Id. § 9545(b)(2).

      Jones invokes the newly recognized constitutional right exception and

argues that the United States Supreme Court’s decision in Miller rendered

his sentence illegal.   See Brief for Appellant at 9-41.   Jones argues that

Miller created a new substantive rule that should be applied retroactively.

See id. at 9, 13-15, 19-26, 28, 29-41.

      Initially, we note that this Court previously held that because Jones’s

judgment of sentence was final, Miller did not render his sentence illegal.

See Jones, 106 A.3d 159 (unpublished memorandum at 4-5) (citing to our

Supreme Court’s decision in Cunningham, 81 A.3d at 10, which held that

Miller does not apply retroactively to juveniles in Pennsylvania whose

judgments of sentence were final at the time Miller was decided, and

concluding that Jones does not properly invoke a timeliness exception).4

Accordingly, Jones’s Miller claim has been previously litigated.      See 42

Pa.C.S.A. § 9544(a)(2).    Nevertheless, we reiterate that we are bound by

the Cunningham decision, and conclude that Jones fails to invoke the newly




4
  In his second PCRA Petition, Jones raised a legality of sentence claim under
Graham v. Florida, 560 U.S. 48 (2010). This Court held the appeal until
the Supreme Court had decided Miller and Cunningham. See Jones, 106
A.3d 159 (unpublished memorandum at 3).


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recognized constitutional right exception.5   See Seskey, 86 A.3d at 243

(stating that this Court is confined by the Cunningham decision).6       Thus,

we are constrained to conclude that the PCRA court properly dismissed

Jones’s Petition.7

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/13/2015




5
  Jones did not file the instant Petition within sixty days of the Miller
decision, due the fact an appeal from the dismissal of his second PCRA
Petition was pending before this Court. Jones filed the instant Petition within
60 days of this Court’s decision affirming the dismissal of Jones’s second
PCRA Petition.
6
 The United States Supreme Court granted certiorari and heard argument in
Montgomery v. Louisiana, 135 S. Ct. 1546 (2015), to determine whether
Miller applies retroactively. However, until the Supreme Court issues its
decision, Cunningham remains binding. See Commonwealth v. Cristina,
114 A.3d 419, 424 n.1 (Pa. Super. 2015) (Mundy, J., concurring).
7
  Jones’s claim that the PCRA court erred in dismissing his PCRA Petition,
without holding an evidentiary hearing, is without merit. “[T]he right to an
evidentiary hearing on a PCRA petition is not absolute, and the PCRA court
may decline to hold a hearing if the petitioner’s claims are patently frivolous
with no support in either the record or other evidence.” Commonwealth v.
Garcia, 23 A.3d 1059, 1066 n.9 (Pa. Super. 2011). Because Jones filed an
untimely PCRA Petition and did not plead and prove an exception to the
timeliness requirement, we conclude that the PCRA court did not abuse its
discretion in declining to hold an evidentiary hearing. See id.


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