J-S57021-14


                               2014 PA Super 214

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

EUGENE MILLER

                          Appellant                No. 3551 EDA 2013


              Appeal from the PCRA Order November 21, 2013
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0004094-2004


BEFORE: DONOHUE, J., MUNDY, J., and STABILE, J.

OPINION BY MUNDY, J.:                         FILED SEPTEMBER 26, 2014

     Appellant, Eugene Miller, appeals pro se from the November 21, 2013

order dismissing his second petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.       After careful

review, we affirm.

     We summarize the relevant procedural history of this case as follows.

On October 25, 2004, the Commonwealth filed an information charging

Appellant with one count each of murder, simple assault, aggravated

assault, recklessly endangering another person (REAP), persons not to

possess a firearm, possession of a firearm without a license, and possession
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of an instrument of a crime (PIC).1 On May 10, 2005, Appellant proceeded

to a jury trial. On May 25, 2005, the jury found Appellant guilty of third-

degree murder, aggravated assault, possession of a firearm without a

license, and PIC. The Commonwealth withdrew the remaining charges. On

July 18, 2005, the trial court imposed an aggregate sentence of 27½ to 55
                         2
                             Relevant to this appeal, the trial court imposed the




New Jersey.       See 42 Pa.C.S.A. § 9714(a)(2) (providing for a minimum

                                                 here the person had at the time of

the commission of the current offense previously been convicted of two or



        On July 20, 2005, Appellant filed a timely post-sentence motion, which

the trial court denied on December 14, 2005. Appellant filed a timely notice

of appeal, and this Court affirmed the judgment of sentence on October 23,

2007.      Commonwealth v. Miller, 943 A.2d 318 (Pa. Super. 2007)


____________________________________________
1
 18 Pa.C.S.A. §§ 2502, 2701(a), 2702(a), 2705, 6105(a), 6106(a)(1), and
907(b), respectively.
2

                                  -
imprisonment for firearms not to be carried without a license, and no further
penalty for aggravated assault. The sentence for PIC is to run concurrently
to the sentence for third-degree murder, but the sentence for the firearms
charge was to run consecutively to the third-degree murder sentence.



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(unpublished memorandum) (Miller I), appeal denied, 947 A.2d 736 (Pa.



appeal on May 8, 2008.       Appellant did not file a petition for a writ of

certiorari with the United States Supreme Court.

        On August 7, 2009, Appellant filed his first PCRA petition. The PCRA

court appointed counsel, who filed an application to withdraw along with a

   -                          Commonwealth v. Turner, 544 A.2d 927 (Pa.

1988), Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en

banc), and their progeny. On April 30, 2010, the PCRA court granted PCRA



issued its notice of intent to dismiss Appell

hearing pursuant to Pennsylvania Rule of Criminal Procedure 907. Appellant

did not file a response, and the PCRA court entered an order dismissing



notic

2012.      Commonwealth v. Miller, 50 A.3d 233 (Pa. Super. 2012)

(unpublished memorandum). Appellant did not file a petition for allowance

of appeal with our Supreme Court.

        On August 8, 2013, Appellant filed his second PCRA petition.     On

October 1, 2013, the PCRA court issued its Rule 907 notice, concluding that



exception to the time-bar. Appellant did not file a response. On November


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PCRA petition.         On December 16, 2013, Appellant filed a timely notice of

appeal.3

        On appeal, Appellant raises the following two issues for our review.

                [1.]   Whether [a] newly recognized constitutional
                             Alleyne v. United States, 133 S. Ct.
                2151 (2013)], has been held to appeal [sic]
                retroactively, within the 60-day filing period begins
                [sic] to run upon the date of the underlying judicial
                decision of June 17, 2013[?]

                [2.]   Whether the decision was rendered during the

                was properly preserved[?]



        We begin by noting our well-                                In reviewing

the    denial    of    PCRA



Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

                                                                          dings

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

                                                            Commonwealth v.

Spotz                                                                   -settled

                                    determinations are binding upon an appellate

                                                            Commonwealth v.
____________________________________________
3
    Appellant and the PCRA court have complied with Pa.R.A.P. 1925.



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Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

                                                      de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

      We also note that a PCRA petitioner is not automatically entitled to an



petition without a hearing for an abuse of discretion. Commonwealth v.

Roney, 79 A.3d 595, 604 (Pa. 2013) (citation omitted).

             [T]he right to an evidentiary hearing on a post-
             conviction petition is not absolute. It is within the

             the petition
             support either in the record or other evidence. It is
             the responsibility of the reviewing court on appeal to
             examine each issue raised in the PCRA petition in
             light of the record certified before it in order to
             determine if the PCRA court erred in its
             determination that there were no genuine issues of
             material fact in controversy and in denying relief
             without conducting an evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (internal

cit

fishing expedition for any possible evidence that may support some

                                              Roney, supra at 605 (citation

omitted).

      Before we may address the merits o

                                                                      because it

implicates   the   jurisdiction   of   this   Court    and   the   PCRA   court.

Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014) (citation

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J-S57021-14


omitted).    Pennsylvani                                     a PCRA petition is

untimely, neither this Court nor the trial court has jurisdiction over the

            Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014)

(citation omitted).                                            not subject to the

doctrine of equitable tolling; instead, the time for filing a PCRA petition can

                                                               Commonwealth

v. Ali, 86 A.3d 173, 177 (Pa. 2014) (internal quotation marks and citation

omitted)

Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011) (citation omitted).

 However, an untimely petition may be received when the petition alleges,

and the petitioner proves, that any of the three limited exceptions to the

time for filing the petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and

(iii)              Commonwealth v. Lawson, 90 A.3d 1, 5 (Pa. Super.

2014) (citation omitted). The PCRA provides, in relevant part, as follows.


             § 9545. Jurisdiction and proceedings



             (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

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                        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.

                  (2) Any petition invoking an exception
                  provided in paragraph (1) shall be filed within
                  60 days of the date the claim could have been
                  presented.



42 Pa.C.S.A. § 9545(b).

      In the case sub judice, Appellant was sentenced on July 18, 2005.

This Court affirmed the judgment of sentence on October 23, 2007, and our

Supreme Court denied allocator on May 8, 2008. Appellant did not seek a

writ of certiorari from the United States Supreme Court.               Therefore,

                                                                       , when the

period for Appellant to file a petition for a writ of certiorari expired. See 42

Pa.C.S.A.   §                          a   judgment   becomes     final   at   the

conclusion of direct review, including discretionary review in the Supreme


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Court of the United States and the Supreme Court of Pennsylvania, or at the

                                                 ; U.S. Sup. Ct. R. 13(1) (stating

                              certiorari

timely when it is filed with the Clerk of this Court within 90 days after entry



file his PCRA petition.      As Appellant filed the instant petition on August 8,

2013, it was patently untimely because it was filed more than four years

past the deadline. However, Appellant avers that the time-bar exception at




in Alleyne announced a new constitutional right that applies retroactively.4

Id. at 6, 13, 15.

                    Subsection (iii) of Section 9545[(b)(1)] has
              two requirements. First, it provides 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
              provided in this section. Second, it provides that the


____________________________________________
4
   In addition to pleading and proving one of the three enumerated
exceptions to the time-bar, this Court has often explained that all of the
PCRA time-bar exceptions are subject t                            A petition
invoking one of these exceptions must be filed within sixty days of the date
                                                       Commonwealth v.
Hernandez, 79 A.3d 649, 651-652 (Pa. Super. 2013), citing 42 Pa.C.S.A.
§ 9545(b)(2). We note that Alleyne was decided on June 17, 2013 and
Appellant filed the instant PCRA petition on August 8, 2013, 52 days after
Alleyne was decided. Therefore, Appellant has complied with Section
9545(b)(2).



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             retroactively.   Thus, a petitioner must prove that
                                                    and that the


             past tense. These words mean that the action has
             already occurred, i.e.,
             the new constitutional right to be retroactive to
             cases on collateral review. By employing the past
             tense in writing this provision, the legislature clearly
             intended that the right was already recognized at the
             time the petition was filed.

Seskey, supra at 242-243 (citations omitted).

     As noted above, Appellant argues that Alleyne announced a new



In Alleyne                                      facts that increase mandatory

minimum sentences must be submitted to the jur

beyond a reasonable doubt.        Alleyne, supra at 2163.        Alleyne is an

                                                                   Apprendi v.

New Jersey, 530 U.S. 466 (2000). In Alleyne, the Court overruled Harris

v. United States, 536 U.S. 545 (2002), in which the Court had reached the

opposite conclusion, explaining that there is no constitutional distinction

between judicial fact finding which raises the minimum sentence and that

which raises the maximum sentence.

                   It is impossible to dissociate the floor of a
             sentencing range from the penalty affixed to the
             crime. Indeed, criminal statutes have long specified
             both the floor and ceiling of sentence ranges, which
             is evidence that both define the legally prescribed
             penalty. This historical practice allowed those who
             violated the law to know, ex ante, the contours of
             the penalty that the legislature affixed to the crime

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            and comports with the obvious truth that the floor of
            a mandatory range is as relevant to wrongdoers as
            the ceiling. A fact that increases a sentencing floor,
            thus, forms an essential ingredient of the offense.

                  Moreover, it is impossible to dispute that facts
            increasing the legally prescribed floor aggravate the
            punishment. Elevating the low-end of a sentencing
            range heightens the loss of liberty associated with

            increased as a result of the narrowed range and the
            prosecution is empowered, by invoking the
            mandatory minimum, to require the judge to impose
            a higher punishment than he might wish. Why else
            would Congress link an increased mandatory
            minimum to a particular aggravating fact other than
            to heighten the consequences for that behavior?
            This reality demonstrates that the core crime and the
            fact triggering the mandatory minimum sentence
            together constitute a new, aggravated crime, each
            element of which must be submitted to the jury.

Alleyne, supra at 2160-2161 (internal quotation marks and citations

omitted).

      Even assuming that Alleyne did announce a new constitutional right,

neither our Supreme Court, nor the United States Supreme Court has held

that Alleyne is to be applied retroactively to cases in which the judgment of

                                                                     t regarding

the PCRA time-bar.       This Court has recognized that a new rule of

constitutional law is applied retroactively to cases on collateral review only if

the United States Supreme Court or our Supreme Court specifically holds it

to be retroactively applicable to those cases. Commonwealth v. Phillips,

31 A.3d 317, 320 (Pa. Super. 2011), appeal denied, 42 A.3d 1059 (Pa.


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2012), citing Tyler v. Cain, 533 U.S. 656, 663 (2001); see also, e.g.,

Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa. Super. 2007)

(s



have also ruled on the retroactivity of the new constitutional right, before

the petitioner can assert retroactive application of the right in a PCRA

               appeal denied, 951 A.2d 1163 (Pa. 2008). Therefore, Appellant

has failed to satisfy the new constitutional right exception to the time-bar.5

       We are aware that an issue pertaining to Alleyne goes to the legality

of the sentence. See Commonwealth v. Newman, --- A.3d ---, 2014 WL

4088805, *3 (Pa. Super. 2014) (en banc

sentence premised upon Alleyne likewise implicates the legality of the

                                                   It is generally true     this


____________________________________________
5

                                                  Almendarez-Torres v.
United States, 523 U.S. 224 (1998) held that the fact of a prior conviction
does not need to be submitted to the jury and found beyond a reasonable
doubt. Id. at 246. Alleyne explicitly noted that Almendarez-Torres
remains good law.     See Alleyne, supra                               [i]n
Almendarez Torres
prior conviction[; however, b]ecause the parties do not contest that


     As noted above, in this case, Appellant received a higher sentence due
to the fact of his prior convictions in New Jersey, pursuant to Section
9714(a)(2). Miller I, supra at 7-9; see also 42 Pa.C.S.A. § 9714(a)(2).

prior convictions, it is not prohibited by Alleyne.



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Court is endowed with the ability to consider an issue of illegality of sentence

sua sponte      Commonwealth v. Orellana, 86 A.3d 877, 883 n.7 (Pa.

Super. 2014) (citation omitted). However, in order for this Court to review a

legality of sentence claim, there must be a basis for our jurisdiction to

engage in such review.      See Commonwealth v. Borovichka, 18 A.3d

1242, 1254 (Pa. Super. 2011)




not technically waivable, a legality [of sentence] claim may nevertheless be

                                                                           -bar



Seskey, supra at 242.      As a result, the PCRA court lacked jurisdiction to

consider the mer

filed and no exception was proven. See Fears, supra; Lawson, supra.

      Based on the foregoing, we conclude that the PCRA court correctly



November 21, 2013 order is affirmed.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2014




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