J-S78021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

ALEC DEVON KREIDER

                            Appellant                    No. 1270 MDA 2014


                   Appeal from the PCRA Order July 11, 2014
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0003446-2007


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                          FILED DECEMBER 18, 2014

        Alec Kreider appeals from an order denying his fourth Post Conviction

Relief Act1 (“PCRA”) petition without a hearing. Because Kreider’s petition is

untimely, we affirm.

        Kreider was charged with murdering three persons on May 12, 2007,

when he was sixteen years old.           On June 17, 2008, Kreider pled guilty to

three counts of first degree murder, and the lower court sentenced him to

three consecutive terms of life imprisonment without the possibility of

parole.

        Kreider filed a timely post-sentence motion requesting imposition of

concurrent sentences instead of consecutive sentences.           The lower court

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1
    42 Pa.C.S. § 9541 et seq.
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denied the motion, and Kreider filed a timely direct appeal. On October 9,

2009, the Superior Court affirmed Kreider’s judgment of sentence. He did

not appeal to the Pennsylvania Supreme Court.

     On December 8, 2009, Kreider timely filed his first PCRA petition

alleging, inter alia, prosecutorial misconduct and ineffective assistance of

counsel.   On March 8, 2010, the lower court issued a Pa.R.Crim.P. 907

notice of intent to dismiss the PCRA petition without a hearing. Instead of

responding to the Rule 907 Notice, Kreider filed a pro se “Petition to Permit

Motion To Withdraw Guilty Pleas Nunc Pro Tunc."      On May 13, 2010, the

lower court denied the motion to withdraw guilty pleas. On June 15, 2010,

the lower court denied Kreider’s PCRA petition without a hearing.

     Kreider did not appeal the order denying his first PCRA petition, but on

June 30, 2010, he appealed the order denying his petition for leave to

withdraw his guilty plea nunc pro tunc. This Court docketed his appeal at

1129 MDA 2010.

     While this appeal was pending, Kreider filed a second PCRA petition in

the lower court contending that his life sentence was unconstitutional

because he was a juvenile.     On July 13, 2010, the lower court stayed

proceedings on the second PCRA petition pending resolution of the appeal at

1129 MDA 2010.     On August 24, 2010, Kreider discontinued his appeal at

1129 MDA 2010.

     On October 14, 2010, the lower court issued a notice of intent to

dismiss Kreider’s second PCRA petition without a hearing. On November 3,

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2010, the lower court issued an order and opinion denying the second PCRA

petition without a hearing. Kreider appealed to this Court at 356 MDA 2011.

      On December 20, 2010, Kreider filed another nunc pro tunc motion to

withdraw his guilty pleas. The lower court stayed its determination of this

motion pending completion of the appeal at 356 MDA 2011.

      On June 29, 2011, Kreider withdrew his appeal at 356 MDA 2011. On

July 6, 2011, the lower court issued an order and opinion deeming the

motion to withdraw guilty pleas as a third PCRA petition and notifying

Kreider of its intent to dismiss the third PCRA petition without a hearing.

Kreider did not file a response to the notice.

      On June 25, 2012, the United States Supreme Court held in Miller v.

Alabama, -- U.S. --, 132 S.Ct. 2455, 2460 (2012), that “mandatory life

without parole for those under the age of 18 at the time of their crimes

violates   the   Eighth   Amendment's    prohibition   on   cruel   and   unusual

punishments."     Id., 132 S.Ct. at 2460. Thereafter, on August 1, 2012,

Kreider filed a fourth PCRA petition in which he requested relief based on

Miller. The lower Court appointed counsel to represent Kreider, and counsel

filed an amended PCRA petition requesting relief under Miller.

      On October 30, 2013, our Supreme Court held in Commonwealth v.

Cunningham, 81 A.3d 1 (Pa.2013), that Miller does not apply retroactively

to cases on collateral appeal. On December 6, 2013, the lower Court stayed

proceedings on Kreider’s fourth PCRA petition pending the United States


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Supreme     Court’s   decision   on   the   petition   for   writ   of   certiorari   in

Cunningham. On June 9, 2014, the United States Supreme Court denied

certiorari in Cunningham.

      On July 11, 2014, the lower court denied Kreider’s fourth PCRA

petition.   Kreider filed a timely appeal to this Court.       On August 6, 2014,

without ordering Kreider to file a Pa.R.A.P. 1925(b) statement, the lower

court filed its Pa.R.A.P. 1925(a) opinion.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court's determination and whether the PCRA

court's decision is free of legal error. Commonwealth v. Phillips, 31 A.3d

317, 319 (Pa.Super.2011). The PCRA court's findings will not be disturbed

unless there is no support for the findings in the certified record. Id.

      We first examine whether Kreider’s fourth PCRA petition is timely,

because the timeliness of a PCRA petition is a jurisdictional threshold, and

we cannot review an untimely PCRA petition.            Commonwealth v. Abu-

Jamal, 941 A.2d 1263, 1267-68 (Pa.2008). Effective January 16, 1996, the

petitioner must file any PCRA petition within one year of the date his

judgment of sentence 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 at the expiration of time for seeking

the review.”    42 Pa.C.S.A. § 9545(b)(3).        An untimely petition may be


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reviewed on the merits, however, when the petitioner pleads and proves any

of three limited exceptions to the one-year limitation period articulated in 42

Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii)2.     A petition invoking one of these

exceptions must be filed within sixty days of the date the claim could first

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

        In this case, on October 9, 2009, this Court affirmed Kreider’s

judgment of sentence. Since Kreider did not appeal to our Supreme Court,

his judgment of sentence became final on Monday, November 9, 2009, the

deadline for filing a petition for allowance of appeal.            42 Pa.C.S. §

9545(b)(3).     Kreider had one year from November 9, 2009 to file a PCRA




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2
    These exceptions are as follows:

              (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
              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.A. § 9545(b)(1)(i), (ii), and (iii).



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petition, or until November 9, 2010. His fourth PCRA petition filed on August

1, 2012 is patently untimely.

      The facial untimeliness of Kreider’s fourth PCRA petition deprives us of

jurisdiction to review the merits of his claims unless one of the three

exceptions to the PCRA's time bar applies. Kreider argues that the exception

in section 9545(b)(1)(iii) applies – that is, the constitutional right recognized

by the United States Supreme Court in Miller applies retroactively to this

case. As noted above, however, our Supreme Court held in Cunningham

that Miller does not apply retroactively to individuals whose judgments of

sentence were final at the time Miller was decided. Cunningham, supra,

81 A.3d at 11. Therefore, Kreider has neither pled nor proven an exception

to the PCRA time bar.     See Commonwealth v. Perrin, 947 A.2d 1284,

1285 (Pa. Super. 2008) (without a pled and successfully proven exception to

the timebar, this Court is without jurisdiction to address the merits of the

arguments raised).

      Anticipating that Cunningham forecloses his claim for PCRA relief,

Kreider argues that Cunningham was wrongly decided. As an intermediate

appellate court, we must follow the decisions of our Supreme Court.

Because our Supreme Court decided in Cunningham that Miller does not

apply retroactively, we cannot reach a contrary result.




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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2014




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