J-S14034-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                  Appellee                 :
                                           :
            v.                             :
                                           :
JEFFREY LEE MILLER, JR.,                   :
                                           :
                  Appellant                :           No. 2211 EDA 2014

           Appeal from the PCRA Order entered on July 14, 2014
             in the Court of Common Pleas of Lehigh County,
              Criminal Division, No. CP-39-CR-0004494-2012

BEFORE: DONOHUE, OLSON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED MARCH 30, 2015

      Jeffrey Lee Miller, Jr. (“Miller”), pro se, appeals from the Order denying

his second Petition for relief pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The PCRA court set forth the relevant factual and procedural history as

follows:

      At approximately 4:55 a.m.[,] on September 27, 2012, police
      responded to 5457 Hartford Court, Lower Macungie Township,
      Lehigh County[,] for the report of a fire. Upon arriving, police
      learned that [Miller] was in the process of disposing [of]
      chemicals used in the manufacture of methamphetamine when a
      fire broke out.

      [Miller] was Mirandized and agreed to answer questions. He
      admitted manufacturing the methamphetamine and storing the
      chemicals, devices, and waste products under the residence.
      [Miller] indicated he intended to transport the items to
      Hellertown in his truck and meet up with his sister’s boyfriend,
      who would place the items in the rear of a garbage truck the
      boyfriend would be operating. While [Miller] was removing items
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      in the crawlspace, a chemical reaction occurred and a bag
      ignited underneath the home. [Miller] admitted he possessed
      everything to manufacture methamphetamine, and he advised
      the troopers of other manufacture-related materials[,] such as
      acids, batteries, and pseudoephrine[,] located below the
      residence. [Miller] further admitted he was involved in the
      manufacture and sale of methamphetamine [for] several years.

PCRA Court Opinion, 8/4/14, at 1-2.

      On January 2, 2013, Miller pled guilty to manufacturing a controlled

substance and risking a catastrophe. The trial court sentenced Miller to an

aggregate prison term of five to twelve years.        Miller filed Post-Sentence

Motions, which were denied. Miller did not file a direct appeal.

      On March 18, 2013, Miller filed a pro se PCRA Petition.            The PCRA

court appointed Miller counsel. Miller’s counsel subsequently filed a Motion

to Withdraw as Counsel and a Turner/Finley1 “no-merit” letter. The PCRA

court permitted Miller’s counsel to withdraw and, after reviewing the record,

dismissed Miller’s first PCRA Petition. Miller did not file an appeal.

      On June 26, 2014, Miller, pro se, filed his second PCRA Petition. The

PCRA court filed a Notice of Intent to Dismiss pursuant to Pa.R.Crim.P. 907.

Miller filed a Response to the Pa.R.Crim.P. 907 Notice. Thereafter, the PCRA

court entered an Order denying the Petition. Miller filed a timely Notice of

Appeal.

      “Our standard of review of the denial of a PCRA petition is limited to

examining whether the court’s rulings are supported by the evidence of

1
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).


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record and free of legal error.”    Commonwealth v. Feliciano, 69 A.3d

1270, 1274 (Pa. Super. 2013) (citation omitted).       “This Court treats the

findings of the PCRA court with deference if the record supports those

findings.” Id. at 1274-75 (citation omitted).

      Initially, under the PCRA, any PCRA petition “including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). A judgment

of sentence becomes final “at the conclusion of direct review, including

discretionary review in the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review.” Id. § 9545(b)(3). The PCRA’s

timeliness requirements are jurisdictional in nature, and a court may not

address the merits of the issues raised if the PCRA petition was not timely

filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

      Here, Miller’s judgment of sentence became final on March 14, 2013,

after the time to file a direct appeal expired. See 42 Pa.C.S.A. § 9545(b)(3)

(stating that a judgment of sentence becomes final at the conclusion of

direct review or at the expiration of time for seeking that review). Miller had

until March 14, 2014, to file a timely PCRA Petition. Id. § 9545(b)(1). Thus

Miller’s PCRA Petition, filed on June 26, 2014, is facially untimely under the

PCRA.

      However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of three exceptions set forth



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under 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any PCRA petition invoking one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” Id. § 9545(b)(2); Albrecht, 994 A.2d at 1094.

        Miller raises the exception at section 9545(b)(1)(iii),2 arguing that the

United States Supreme Court recognized a new constitutional right in

Alleyne v. United States, 133 S. Ct. 2151 (2013), which applies

retroactively. Brief for Appellant at 9. In Alleyne, the Supreme Court held

that “facts that increase mandatory minimum sentences must be submitted

to the jury” and found beyond a reasonable doubt. Alleyne, 133 S. Ct. at

2163.     The Supreme Court noted that “the essential Sixth Amendment

inquiry is whether a fact is an element of the crime. When a finding of fact

alters the legally prescribed punishment so as to aggravate it, the fact

necessarily forms a constituent part of a new offense and must be submitted

to the jury.” Id. at 2162. Miller argues that his sentence is illegal and that

he is entitled to a new sentencing hearing. Brief for Appellant at 9-10.

        We note that in his appellate brief, Miller cites to the mandatory

minimum sentence        provision at 42 Pa.C.S.A. § 9712.1, which was

subsequently ruled unconstitutional by Commonwealth v. Newman, 99

A.3d 86 (Pa. Super. 2014) (en banc), based upon the Alleyne reasoning.


2
  The exception under section 9545(b)(1)(iii) states 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 period
provided in this section and has been held by that court to apply
retroactively.” 42 Pa.C.S.A. § 9545(b)(1)(iii).


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Brief for Appellant at 9. However, a review of the record reveals that Miller

was not sentenced under section 9712.1. Rather, Miller was subject to the

mandatory sentence provision at 35 P.S. § 780-113(k).             N.T., 2/12/13, at

2.3 Section 780-113(k) states the following:

        (k) Any person convicted of manufacture of amphetamine, its
        salts, optical isomers and salts of its optical isomers;
        methamphetamine, its salts, isomers and salts of isomers; or
        phenylacetone and phenyl-2-proponone shall be sentenced to at
        least two years of total confinement without probation, parole or
        work release, notwithstanding any other provision of this act or
        other statute to the contrary.

35 P.S. § 780-113(k).

        Here, the mandatory minimum sentence is based solely upon Miller’s

conviction of manufacturing methamphetamine, and was not enhanced

based    upon   an   additional    judicial   finding   during   sentencing.   See

Commonwealth v. Hoke, 962 A.2d 664, 666 (Pa. 2009) (stating that

section 780-113(k) “requires that a mandatory minimum sentence be

imposed for the crime of manufacturing one of the referenced controlled

substances[.]”) (emphasis in original).          Thus, the Alleyne reasoning is

inapplicable to this subsection.



3
  The trial court imposed an aggravated range sentence of four to ten years
in prison on the manufacturing methamphetamine conviction.             N.T.,
2/12/13, at 14. The trial court imposed the sentence after reviewing the
pre-sentence investigation report, Miller’s prior record score and offense
gravity score, and pointing out that Miller was previously convicted of
manufacturing methamphetamine, that he endangered numerous people,
and that Miller required an extended need for supervision to fight his drug
addiction. Id. at 16-17.


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      In any event, even if Alleyne applied, Miller does not properly invoke

an exception to the timeliness requirements of the PCRA. Miller did not raise

the exception at section 9545(b)(1)(iii) in a timely manner.         Alleyne was

decided on June 17, 2013. Miller did not file the instant PCRA Petition until

June 26, 2014, well over sixty days after the date the claim first could have

been presented.     See PCRA Court Opinion, 8/4/14, at 5; see also 42

Pa.C.S.A. § 9545(b)(2); Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa.

Super.   2007)    (stating   that   “[w]ith    regard   to   an   after-recognized

constitutional right, this Court has held that the sixty-day period begins to

run upon the date of the underlying judicial decision.”).4         Moreover, this

Court has ruled that Alleyne does not apply retroactively to cases where the

judgment of sentence had become final.          See Commonwealth v. Miller,

102 A.3d 988, 995 (Pa. Super. 2014) (stating that “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.”) (emphasis omitted); see also id. at 995 (stating that while Alleyne

claims goes to the legality of sentence, courts cannot review a legality claim

where it does not have jurisdiction).         Based upon the foregoing, Miller’s

PCRA Petition is facially untimely, and he has failed to meet his burden of


4
  We note that in the PCRA court, Miller argued that he did not become
aware of the Alleyne decision until he read a newspaper article on the case
on March 5, 2014. However, even if we determined that Miller could only
raise this claim within sixty days of this date, Miller’s Petition, filed on June
26, 2014, still did not raise the exception in a timely manner.


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proof with regard to any exception to the timeliness requirements of the

PCRA.

      Miller also claims that the PCRA court should have appointed him

counsel for his second PCRA Petition. Brief for Appellant at 8-9. However, it

is well-settled that PCRA petitioners are only entitled to counsel for their first

PCRA petitions.    See Pa.R.Crim.P. 904(C); see also Commonwealth v.

Vega, 754 A.2d 714, 719 (Pa. Super. 2000) (stating that although a first-

time PCRA petitioner is entitled to appointment of counsel, there is no such

entitlement on second and subsequent petitions).

      Finally, Miller argues that the PCRA court should have held an

evidentiary hearing on his Petition. Brief for Appellant at 8-9.

      “[A] PCRA court may decline to hold a hearing on the petition if the

PCRA court determines that the petitioner’s claim is patently frivolous and is

without a trace of support in either the record or from other evidence.”

Commonwealth v. Hart, 911 A.2d 939, 941 (Pa. Super. 2006).                   “We

review the PCRA court’s decision dismissing a petition without a hearing for

an abuse of discretion.” Miller, 102 A.3d at 992.

      Here, Miller filed an untimely PCRA Petition and did not properly raise

any exceptions to the timeliness exceptions under section 9545(b)(1). Thus,

the PCRA court did not abuse its discretion in denying the Petition without a

hearing.   See Commonwealth v. Garcia, 23 A.3d 1059, 1066 n.9 (Pa.

Super. 2011) (concluding that the PCRA court did abuse its discretion in



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dismissing an untimely PCRA petition without a hearing where petitioner

failed to properly invoke any of the timeliness exceptions).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/30/2015




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