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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

DWAYNE HILL

                            Appellant                   No. 2235 EDA 2014


                   Appeal from the PCRA Order June 30, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0505682-1990


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                              FILED APRIL 08, 2015

        Dwayne Hill appeals from an order denying his seventh petition for

relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et

seq. We affirm.

        In 1992, Hill was convicted of second degree murder 1 and was

sentenced to life imprisonment. On March 10, 1993, this Court affirmed his

judgment of sentence on direct appeal.           Hill did not file a petition for

allowance of appeal in the Pennsylvania Supreme Court. Between 1994 and

2010, he filed six unsuccessful petitions for post-conviction relief.2 On July

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(b).
2
    Pa.R.A.P. 1925(a) Opinion, p. 1 n.1 (chronology of Hill’s petitions).
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5, 2012, Hill filed his seventh PCRA petition, the petition presently on

appeal.     On February 19, 2014, the PCRA court sent a Pa.R.Crim.P. 907

notice of intent to dismiss the petition without a hearing.             Hill filed a

response in opposition to the Rule 907 notice. On July 3, 2014, the PCRA

court dismissed Hill’s petition. Hill filed a timely notice of appeal. The PCRA

court filed a Pa.R.A.P. 1925(a) opinion without ordering Hill to file a concise

statement of matters complained of on appeal.

       Acting pro se, Hill raises three issues on appeal: (1) Miller v.

Alabama, -- U.S. --, 132 S.Ct. 2455 (2012), applies retroactively to his

case; (2) the PCRA court erred in failing to appoint counsel to represent Hill

in his seventh PCRA petition; and (3) the PCRA court failed to provide

adequate notice of its intent to dismiss Hill’s petition under Pa.R.Crim.P.

907.

       No   court   has   jurisdiction   to   hear   an   untimely   PCRA   petition.

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010) (citing

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa.2003)). The PCRA

provides that a petition, “including a second or subsequent petition, shall be

filed within one year of the date the judgment becomes final.” 42 Pa.C.S. §

9545(b)(1); accord Monaco, 996 A.2d at 1079; Commonwealth v. Bretz,

830 A.2d 1273, 1275 (Pa.Super.2003).                 A judgment is 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. § 9545(b)(3).

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      Three exceptions to the PCRA’s time-bar provide for very limited

circumstances under which a court may excuse the late filing of a PCRA

petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079.               The late

filing of a petition will be excused if a petitioner alleges and proves:

            (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. § 9545(b)(1)(i)-(iii).    A petition invoking an exception to the

PCRA time-bar must “be filed within 60 days of the date the claim could

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

      Hill’s judgment of sentence became final on April 9, 1993, thirty days

after this Court affirmed on direct appeal.      See 42 Pa.C.S. § 9545(b)(3)

(judgment is final at the conclusion of direct review or at the expiration of

time for seeking review).     He had one year from that date, i.e., April 9,

1994, to file a timely PCRA petition. See 42 Pa.C.S. § 9545(b)(1). He did

not file his present PCRA petition until July 5, 2012, nineteen years after the




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expiration of the PCRA time-bar. Thus, his PCRA petition is untimely on its

face.

        Nor does Hill satisfy any of the three exceptions to the one year

statute of limitations. 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Hill’s argument that

Miller applies retroactively to his case under section 9545(b)(1)(iii) is

wrong. Miller held 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.’” 132 S.Ct. at 2460

(emphasis added). Hill was twenty years old when he committed murder.

Thus, Miller is facially inapplicable. Commonwealth v. Cintora, 69 A.3d

759, 763 (Pa.Super.2013), appeal denied, 81 A.3d 75 (Pa.2013);

Commonwealth v. Lawson, 90 A.3d 1, 6 (Pa.Super.2014) (“Miller only

addressed individuals who were juveniles when they committed the crime on

which their current conviction is based … ”). Even if Hill had been under 18

when he committed his crime, our Supreme Court has held that Miller does

not apply retroactively to life-term offenders, even juvenile offenders,

proceeding under the PCRA. Commonwealth v. Cunningham, 81 A.3d 1,

11 (Pa.2013), cert. denied, 134 S.Ct. 2724 (2014).

        Hill’s remaining procedural arguments are equally groundless. He first

argues that the PCRA court should have appointed counsel to represent him

in his seventh PCRA petition.       In a second or subsequent petition for

collateral relief, the PCRA court should only appoint counsel when an

unrepresented defendant satisfies the court that (1) he is unable to afford or

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otherwise procure counsel, and (2) an evidentiary hearing is required under

Pa.R.Crim.P. 908. See Pa.R.Crim.P. 904(b).            An evidentiary hearing is

unnecessary when there are no disputed factual issues. Commonwealth v.

Carpenter, 725 A.2d 154, 170 (Pa.1999).           Hill fails to raise any genuine

issues of material fact. He asks “whether he was a juvenile at the time of

this incident,”3 but he then admits that he was 20 years old at the time of

the murder.       He also asks whether Miller applies retroactively, but this

obviously presents a question of law, not an issue of fact.         Therefore, the

PCRA court properly declined to appoint counsel for Hill.

        Second, Hill argues that the PCRA court’s Rule 907 notice of intent to

dismiss his petition without a hearing was defective. We disagree.

        Pa.R.Crim.P. 907(a) provides in relevant part:

              [T]he judge shall promptly review the [PCRA]
              petition, any answer by the attorney for the
              Commonwealth, and other matters of record relating
              to the defendant’s claim(s). If the judge is satisfied
              from this review that there are no genuine issues
              concerning any material fact and that the defendant
              is not entitled to post-conviction collateral relief, and
              no purpose would be served by any further
              proceedings, the judge shall give notice to the
              parties of the intention to dismiss the petition and
              shall state in the notice the reasons for the
              dismissal. The defendant may respond to the
              proposed dismissal within 20 days of the date of the
              notice …


____________________________________________


3
    Brief For Appellant, p. 5.



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Id. The PCRA court complied with all requirements of Rule 907. The notice

of intent stated that the PCRA court intended to dismiss Hill’s petition as

untimely and gave Hill the requisite 20 days to respond. Hill filed a brief in

opposition to the Rule 907 notice claiming that his petition was timely. The

PCRA court ultimately dismissed Hill’s petition several months later for lack

of timeliness. There were no deficiencies in the Rule 907 notice.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/8/2015




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