J-S09027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

JAMES EARL HOUSE,

                         Appellant                   No. 1241 WDA 2014


                  Appeal from the PCRA Order July 9, 2014
                In the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0002720-1999


BEFORE: FORD ELLIOTT, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY BOWES, J.:                             FILED MARCH 13, 2015

      James Earl House appeals from the July 9, 2014 order finding him

ineligible for PCRA relief and dismissing his petition. We affirm.

      The events giving rise to Appellant’s underlying convictions occurred

on April 7, 1999.

      Appellant was called by his cousin and asked to “take care of the
      dudes that I’ve been having problems with that broke my
      windows out.” In response, [A]ppellant, Markcail Williams, and
      two others confronted the victim, Eddie Outlaw, and his siblings.
      While Williams shot at and chased the victim’s siblings, Appellant
      shot at and eventually hit the victim twice while the victim tried
      to escape. The victim died as a result of the injuries. A number
      of persons witnessed the incident.

Commonwealth v. House, 788 A.2d 1029 (Pa.Super. 2001) (unpublished

memorandum at 1).
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      On March 31, 2000, a jury found Appellant guilty of first-degree

murder, aggravated assault, carrying a firearm without a license, conspiracy

to commit simple assault and possession of an instrument of crime. He was

sentenced to a term of life imprisonment on the murder count, a consecutive

term of five years imprisonment on the firearms charge, and a consecutive

term of one to two years of imprisonment on the conspiracy conviction. At

the time of the offenses, Appellant was a juvenile.

      This Court affirmed the judgment of sentence on September 10, 2001,

and Appellant did not seek allowance of appeal to the Supreme Court.

Appellant filed a timely pro se PCRA petition on December 27, 2001, counsel

was appointed, and counsel filed an amended petition. Relief was denied on

October 25, 2002. Appellant filed three subsequent PCRA petitions that did

not afford him relief. On July 11, 2012, Appellant filed the instant petition,

his fifth.   The court appointed counsel and counsel filed a supplemental

petition for post-conviction relief. Shortly thereafter, Appellant sought and

was granted a stay of the PCRA decision pending the outcome of a certiorari

petition in Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013).

Following denial of certiorari on June 9, 2014, the court lifted the stay and

dismissed the petition. Appellant timely appealed. He raises one issue for

our review:

      [I] Did the PCRA Court err in denying Mr. House’s PCRA petition
      since Pennsylvania’s Mandatory Life Without Parole Sentencing
      Scheme for Juvenile Offenders Convicted of Murder is
      Unconstitutional under the United States and Pennsylvania

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      Constitutions and Pursuant to Miller; and should the United
      States Supreme Court of Pennsylvania’s decision in the case of
      Commonwealth v. Cunningham, apply retroactively to all
      cases on collateral review.

Appellant’s brief at 1.

      In reviewing the denial of PCRA relief, an appellate court examines

“the PCRA court’s findings of fact to determine whether they are supported

by the record, and reviews its conclusions of law to determine whether they

are free from legal error. The scope of review is limited to the findings of

the PCRA court and the evidence of record, viewed in the light most

favorable to the prevailing party at the trial level.”   Commonwealth v.

Freeland, 2014 WL 6982658, *4 (Pa.Super. 2014).

      Preliminarily, we must determine whether Appellant’s PCRA petition is

timely filed as it implicates our jurisdiction.   See Commonwealth v.

Lawson, 90 A.3d 1 (Pa.Super. 2014). In order for a collateral petition to be

timely under the PCRA, it must be filed within one year of the date when the

petitioner’s judgment of sentence became final.    42 Pa.C.S. § 9545(b)(1).

Appellant’s petition, filed more than ten years after his sentence became

final, is patently untimely. However, there are three exceptions to the time-

bar of the PCRA.      Those exceptions include interference by government

officials, newly-discovered facts that were unknown to the petitioner and

which could not have been ascertained with due diligence, or a new

constitutional right held to apply retroactively. 42 Pa.C.S. § 9545(b)(1)(i-




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iii). Any claim based on an exception to the time-bar must be filed within

sixty days of the date it could have first been presented.

       Appellant has not expressly invoked an exception to the PCRA’s time

bar.   Even if we were to treat his reliance upon Miller v. Alabama, 132

S.Ct. 2455 (decided June 25, 2012), as a basis to circumvent the time-bar,

he would not be entitled to relief.    In Miller, the United States Supreme

Court held that mandatory life sentences without parole for juveniles

violated the Eighth Amendment.        However, Miller does not function as a

newly-recognized    constitutional   right   for   purposes   of   the   timeliness

exception in 42 Pa.C.S. § 9545(b)(1)(iii), because our High Court held in

Cunningham, supra, that it did not apply retroactively. Thus, Appellant’s

petition is untimely and dismissal was proper.

       Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2015




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