J-S02022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

HOWARD MILLER

                        Appellant                   No. 1609 EDA 2016


             Appeal from the PCRA Order Dated April 28, 2016
           In the Court of Common Pleas of Philadelphia County
             Criminal Division at No: CP-51-CR-0904411-2004


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MOULTON, JJ.

MEMORANDUM BY STABILE, J.:                         FILED MARCH 23, 2017

      Appellant Howard Miller appeals from the April 28, 2016 order of the

Court of Common Pleas of Philadelphia County (“PCRA court”), which

dismissed as untimely his second petition for collateral relief under the Post

Conviction Relief Act (the “Act”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we

affirm.

      The facts and procedural history of this case are uncontested. Briefly,

in April 2005, Appellant was found guilty of robbery of a motor vehicle, 18

Pa.C.S.A. § 3702, and possessing an instrument of crime, 18 Pa.C.S.A.

§ 907. In September of the same year, he was sentenced to 10 to 20 years

of imprisonment. This Court affirmed Appellant’s judgment of sentence on

September 12, 2007.      Commonwealth v. Miller, 938 A.2d 1117 (Pa.

Super. 2007) (unpublished memorandum).         Appellant thereafter filed his
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first PCRA petition, which the PCRA court dismissed.             We affirmed.

Commonwealth v. Miller, 986 A2d. 1260 (Pa. Super. 2009) (unpublished

memorandum).

       On August 14, 2014, approximately five years after our affirmance of

his first PCRA petition, Appellant pro se filed the instant PCRA petition,

followed by two supplemental PCRA petitions.          On June 2, 2015, his

privately-retained counsel filed an amended petition, raising an Alleyne1

challenge. On April 28, 2016, following a Pa.R.Crim.P. 907 notice, the PCRA

court dismissed as untimely Appellant’s second PCRA petition.        Appellant

timely appealed to this Court.

       On appeal,2 Appellant raises two issues for our review:

       I.     Whether the [PCRA court] erred in denying [Appellant’s]
              PCRA petition due to the change in the law as announced
              in [Commonwealth v.] Hopkins, [117 A.3d 247 (Pa.
              2015)3] and whether the [c]ourt should have applied the
              decision in [Hopkins] or acted otherwise to affirm
              [Appellant’s] newly stated constitutional right to have all
____________________________________________


1
  Alleyne v. United States, 133 S. Ct. 2151, 2161-63 (2013) (holding that
any fact other than a prior conviction that triggers a mandatory minimum
sentence must be found by a jury beyond a reasonable doubt).
2
  “On appeal from the denial of PCRA relief, our standard of review requires
us to determine whether the ruling of the PCRA court is supported by the
record and free of legal error.” Commonwealth v. Widgins, 29 A.3d 816,
819 (Pa. Super. 2011).
3
  In Hopkins, our Supreme Court held that 18 Pa.C.S.A. § 6317 which
imposed a mandatory minimum sentence for a drug sale or PWID within
1,000 feet of a school was unconstitutional in its entirety, as certain
provisions of the statute do not adhere to Alleyne’s rule and are not
severable from the remaining portions of the statute. Hopkins, 117 A.3d at
249.



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              factors which would increase his sentence, including
              second strike, proven beyond a reasonable doubt at
              trial[?]

       II.    Whether the [f]ederal [c]ourt’s actions in similar cases
              have created a precedent that the state courts should
              follow, allowing retroactive application of this type of
              constitutional issue, or whether retroactive application was
              necessary when [Appellant] had a timely post-conviction
              petition pending at the time of the [Hopkins] decision[?]

Appellant’s Brief at 8.4

       Put differently, Appellant argues that Hopkins announced a new rule

that renders timely the PCRA petition in question and, as a result, the PCRA

court had jurisdiction to entertain it.        Even if Appellant were correct, our

timeliness analysis would not terminate here.          Indeed, he would need to

establish that the new rule announced in Hopkins applies retroactively.

       As a threshold matter, we must determine whether the court erred in

dismissing as untimely Appellant’s PCRA petition.          The PCRA contains the

following restrictions governing the timeliness of any PCRA petition.

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

____________________________________________


4
  Appellant does not contest that the instant PCRA petition was filed more
than sixty days of the decision in Alleyne, which was issued on June 17,
2013.



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              (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.

        (3) For purposes of this subchapter, a judgment 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) (emphasis added).             Section 9545’s timeliness

provisions are jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa.

2014). Additionally, we have emphasized repeatedly that “the PCRA confers

no authority upon this Court to fashion ad hoc equitable exceptions to the

PCRA time-bar in addition to those exceptions expressly delineated in the

Act.”    Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003)

(citations omitted).

        Here, it is undisputed that Appellant’s instant PCRA petition, his

second, is untimely. As noted, we affirmed the dismissal of Appellant’s first

PCRA petition in 2009 and the instant petition was not filed until August 14,

2014, approximately five years later. Thus, Appellant’s instant PCRA petition

is facially untimely.

        The one-year time limitation, however, can be overcome if a petitioner

alleges and proves one of the three exceptions set forth in Section



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9545(b)(1)(i)-(iii) of the PCRA.          Appellant here argues that the instant

petition is timely under Hopkins because, Hopkins,5 according to him,

announced a new constitutional right.

       As we recently explained in Commonwealth v. Whitehawk, 146

A.3d 266 (Pa. Super. 2016):

       [T]he Hopkins decision did not announce a “new rule,” but
       rather simply assessed the validity of Section 6317 under
       Alleyne and concluded that particular mandatory minimum
       sentencing statute was unconstitutional. Furthermore, even if
       Hopkins had announced a new rule, neither our Supreme Court
       nor the United States Supreme Court has held that Hopkins
       applies retroactively to post-conviction petitioners such as
       Appellant. Consequently, to the extent Appellant attempts to
       rely on Hopkins, he has not satisfied the timeliness exception of
       Section 9545(b)(1).

             Finally, assuming that Alleyne announced 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 sentence had
       become final, and 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 the
       Pennsylvania 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. 2012). To the contrary, our Supreme Court
       recently filed an opinion in Commonwealth v. Washington,
       142 A.3d 810 (Pa. 2016) wherein it addressed the retroactive
       effect of Alleyne and held “that Alleyne does not apply
       retroactively to cases pending on collateral review. . . .”
       Washington, 142 A.3d at 820.

       [The Washington Court reasoned:
              A] new rule of law does not automatically render final, pre-
       existing sentences illegal. A finding of illegality, concerning such
       sentences, may be premised on such a rule only to the degree
       that the new rule applies retrospectively. In other words, if the
       rule simply does not pertain to a particular conviction or
____________________________________________


5
  Hopkins was issued on June 15, 2015 during the pendency of Appellant’s
instant PCRA challenge.



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      sentence, it cannot operate to render that conviction or sentence
      illegal.

        ....

      [N]ew constitutional procedural rules generally pertain to future
      cases and matters that are pending on direct review at the time
      of the rule’s announcement.

      Id. at 814-15.]

Whitehawk, 146 A.3d at 271.

      Based on the foregoing reasons and consistent with Whitehawk, we

conclude that the PCRA court did not err in dismissing as untimely his PCRA

petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2017




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