J-S72011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

RODERICK TODD ALLEN,

                            Appellant                      No. 213 WDA 2014


             Appeal from the PCRA Order Entered January 14, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0007206-1979


BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                           FILED DECEMBER 2, 2014

        Appellant, Roderick Todd Allen, appeals from the trial court’s January

14, 2014 order denying his petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.          We affirm.

        On March 28, 1980, at the conclusion of a jury trial, Appellant was

convicted of second-degree murder, robbery, criminal conspiracy, and

firearms violations.     On June 30, 1980, he was sentenced to, inter alia, a

term of life imprisonment.

        On September 11, 1980, Appellant filed a pro se PCRA petition.

Appellant was appointed counsel.               A hearing was held on May 5, 1981.

Following the hearing, the court reinstated Appellant’s right to file a direct

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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appeal nunc pro tunc, and his right to file post-sentence motions.

Subsequently, post-sentence motions were filed; they were denied on

January 12, 1983. Appellant filed an appeal nunc pro tunc, and this Court

affirmed Appellant’s judgment of sentence on May 24, 1985.                 See

Commonwealth v. Allen, 496 A.2d 848 (Pa. Super. 1985) (unpublished

memorandum). The Pennsylvania Supreme Court denied Appellant’s petition

for allowance of appeal on December 13, 1985.

     Appellant filed a pro se petition to file a writ of coram nobis on January

28, 2003.     Counsel was appointed and subsequently filed a motion to

withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),

and Commonwealth v. Finley, 479 A.2d 568 (Pa. Super. 1984). The court

granted counsel’s motion to withdraw on September 23, 2003. The petition

was dismissed on October 23, 2003.      Appellant filed a timely appeal.    On

June 27, 2005, this Court reversed the trial court’s order and remanded the

matter for a hearing to determine whether Appellant’s claims were time-

barred.   See Commonwealth v. Allen, 881 A.2d 877 (Pa. Super. 2005)

(unpublished memorandum).      Counsel was appointed, and a hearing was

held on November 6, 2006. The trial court again denied Appellant’s petition

on December 20, 2006.

     Appellant filed a timely appeal through counsel on January 11, 2007.

This appeal was docketed as 153 WDA 2007. In addition, Appellant filed a

pro se notice of appeal on January 15, 2007. This appeal was docketed as

178 WDA 2007.     On February 13, 2007, this Court dismissed the appeal

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docketed at 178 WDA 2007, as it was duplicative of the appeal docketed at

153 WDA 2007.

      Before we disposed of the appeal docketed at 153 WDA 2007,

Appellant filed a pro se PCRA petition on October 27, 2007. The PCRA court

denied this petition (for lack of jurisdiction, due to Appellant’s appeal

pending at 153 WDA 2007) on March 4, 2008.         Appellant filed a notice of

appeal on March 27, 2008. This appeal was docketed as 1116 WDA 2008;

subsequently, this Court granted Appellant’s petition to discontinue this

appeal on December 8, 2008.

       This Court affirmed the PCRA court’s order denying Appellant PCRA

relief on April 3, 2008.    See Commonwealth v. Allen, 954 A.2d 31 (Pa.

Super. 2008) (unpublished memorandum).           The Pennsylvania Supreme

Court denied Appellant’s petition for allowance of appeal on December 2,

2008. See Commonwealth v. Allen, 599 A.2d 705 (Pa. 2008).

      Appellant filed the instant PCRA petition on August 13, 2012.        An

amended counseled PCRA petition was filed on November 16, 2012.           The

court issued a Pa. R. Crim. P. 907 notice of its intent to dismiss on

November 8, 2013.          The PCRA court dismissed Appellant’s petition on

January 14, 2014.    Appellant filed a timely notice of appeal, as well as a

timely concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).

      Appellant now presents the following question for our review:




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      I.      Whether the PCRA [c]ourt abused its discretion by denying
              [Appellant] post-conviction relief, rather than vacating
              [Appellant’s] sentence and scheduling a re-sentencing
              hearing at which he would be sentenced in accordance
              with newly recognized [c]onstitutional rights as established
              by the United States Supreme Court in Miller v.
              Alabama[?]

Appellant’s brief at 4.

      Before we may address Appellant’s claim, we must assess the

timeliness of his petition, because the PCRA time limitations implicate our

jurisdiction and may not be altered or disregarded in order to address the

merits of a petition.     Commonwealth v. Bennett, 930 A.2d 1264, 1267

(Pa. 2007) (stating PCRA time limitations implicate our jurisdiction and may

not be altered or disregarded to address the merits of the petition);

Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002)

(holding the Superior Court lacks jurisdiction to reach merits of an appeal

from an untimely PCRA petition).

      Under the PCRA, any petition for post-conviction relief, including a

second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the exceptions set forth

in 42 Pa.C.S. § 9545(b) applies. That section states, in relevant part:

      (b) Time for filing petition.--

           (1) Any petition under this subchapter, including a second
           or subsequent petition, shall be filed within one year of the
           date the judgment becomes final, unless the petition
           alleges and the petitioner proves that:

              (i) the failure to raise the claim previously was the
              result of interference by government officials with
              the presentation of the claim in violation of the

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            Constitution or laws of this Commonwealth or the
            Constitution or laws of the United States;

            (ii) the facts upon which the claim is predicated were
            unknown to the petitioner and could not have been
            ascertained by the exercise of due diligence; or

            (iii) 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)(i)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Here, the Pennsylvania Supreme Court denied Appellant’s petition for

allowance of appeal on December 13, 1985. Thus, Appellant’s judgment of

sentence became final 60 days thereafter, or on March 13, 1986.       See 42

Pa.C.S. § 9545(b)(3) (stating that a judgment of sentence becomes final at

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

review); U.S. Supreme Ct. Rule 20.1 (providing 60 days for the filing of a

writ of certiorari). Consequently, Appellant had until March 13, 1987, to file

a timely PCRA petition. He did not file the instant petition until August 13,

2012. Appellant was required to plead and prove in his PCRA petition that

one of the above-stated exceptions applied to his claim(s).

      In his PCRA petition, Appellant relied on the holding of the United

States Supreme Court in Miller v. Alabama, 132 S.Ct. 2455 (2012), in

support of his claim that the instant petition was not time-barred under the

exception set forth in section 9545(b)(1)(iii). The Miller Court held that a

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mandatory sentence of life imprisonment without the possibility of parole for

a juvenile constitutes a violation of the Eighth Amendment. However, the

Court’s holding in Miller did not reach the question of whether its ruling

applied retroactively.

      Subsequently, the Pennsylvania Supreme Court addressed the issue of

the retroactive application of Miller in Commonwealth v. Cunningham,

81 A.3d 1 (Pa. 2013). The Cunningham Court noted:

      Teague v. Lane, 489 U.S. 288, [] (1989) (plurality), delineated
      a general rule of non-retroactivity for new procedural,
      constitutional rules announced by the Court … subject to two
      narrow exceptions…. As relevant here, the exceptions extend to
      “rules prohibiting a certain category of punishment for a class of
      defendants because of their status or offense,” and “watershed
      rules of criminal procedure implicating the fundamental fairness
      and accuracy of the criminal proceeding.”

Cunningham, 81 A.3d at 4.        The Court then held that Miller did not

“categorically bar a penalty for a class of offenders,” and, therefore, Miller

was not retroactive pursuant to the first Teague exception. Id. at 10. The

Court specifically declined to determine whether Miller was retroactive

pursuant to the second Teague exception (i.e., that Miller constituted a

“watershed ruling of criminal procedure”), as the Appellant Miller had not

raised that claim. Id.

      Neither the United States Supreme Court, nor the Supreme Court of

Pennsylvania, has held that the right recognized by the Supreme Court in

Miller applies retroactively.   We are thus constrained to conclude that

Appellant has failed to plead and prove the exception to the PCRA time bar


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set forth in section 9545(b)(1)(iii). Therefore, the PCRA court did not err in

dismissing Appellant’s time-barred PCRA petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2014




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