J-S49002-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

GENE W. MILLER

                            Appellant               No. 3536 EDA 2015


            Appeal from the PCRA Order entered November 2, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division, at No(s): CP-51-CR-0507091-1984


BEFORE: PANELLA J., and OLSON, J., and STEVENS, P.J.E.

MEMORANDUM BY PANELLA, J.                             FILED JULY 05, 2016

       Appellant, Gene W. Miller, appeals pro se from the order dismissing as

untimely his latest petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

       On March 16, 1984, Appellant, then twenty-two years old, stabbed to

death a teenaged boy in a vacant lot in Philadelphia. Ultimately, Appellant

entered a guilty to plea to murder generally. The trial court accepted the

guilty plea, determined that the degree of guilt was first-degree, and, on

October 30, 1984, sentenced him to life in prison without the possibility of

parole. After the trial court denied his post-sentence motion in which he

sought to withdraw his plea, Appellant filed a timely appeal. We affirmed

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* Former Justice specially assigned to the Superior Court.
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Appellant’s judgment of sentence, and our Supreme Court denied his

allocatur petition on May 4, 1987. See Commonwealth v. Miller, 512 A.2d

1290 (Pa. Super. 1986) (Table), allocatur denied, 527 A.2d 537 (Pa. 1987).

      Over almost the next twenty years, Appellant filed unsuccessful PCRA

petitions. Beginning in 2006, and again in 2009, Appellant filed petitions that

were denied as untimely and affirmed by this Court. See Commonwealth

v. Miller, 964 A.2d 441 (Pa. Super. 2008) (Table); Commonwealth v.

Miller, 62 A.3d 447 (Pa. Super. 2012) (Table).

      Undeterred,    Appellant   filed   the   instant   petition—his   eighth—on

September 20, 2013. Without first obtaining leave of court, Appellant filed

three amended petitions. On June 23, 2015, the PCRA court issued notice of

its intent to dismiss Appellant’s serial petition without a hearing. Appellant

filed a response. The PCRA court dismissed the petition as untimely. This pro

se appeal follows.

      Before   addressing   Appellant’s    substantive    issues   we   must   first

determine whether the PCRA court correctly concluded that Appellant’s

latest, pro se PCRA petition was untimely filed. It was. We explain why

below.

      The timeliness of a post-conviction petition is jurisdictional. See

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).

Generally, a petition for relief under the PCRA, including a second or

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

is final unless the petition alleges, and the petitioner proves, an exception to

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the time for filing the petition is met. See 42 Pa.C.S.A. § 9545(b)(1)(i), (ii),

and (iii). A PCRA petition invoking one of these statutory exceptions must

“be filed within 60 days of the date the claims could have been presented.”

See Hernandez, 79 A.3d 651-52 (citations omitted). See also 42 Pa.C.S.A.

§ 9545(b)(2). Finally, the petitioner must plead exceptions to the PCRA’s

time   bar   in   the   petition,   not   for   the   first   time   on   appeal.   See

Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super. 2007). See

also Pa.R.A.P. 302(a).

       Appellant’s judgment of sentence became final on July 3, 1987, when

the sixty-day period to file writ of certiorari under the then-existing United

States Supreme Court rules expired. See former U.S.Sup.Ct.R. 20.1; 42

Pa.C.S.A. § 9543(b)(3). Therefore, Appellant needed to file the petition at

issue by July 5, 1988, in order for it to be timely. As Appellant filed the

instant petition over a quarter of a century later, it is patently untimely

unless he has satisfied his burden of pleading and proving that one of the

enumerated exceptions applies.

       Appellant has failed to prove the applicability of any of the exceptions

to the PCRA’s time bar. Initially, we note our agreement with the

Commonwealth that the PCRA court did not need to consider the contents of

Appellant’s amended petitions because they were filed without first obtaining

leave of court. See Commonwealth v. Baumhammers, 92 A.3d 708, 730

(Pa. 2014) (providing that leave to amend must be sought). Nevertheless,


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the PCRA court, after considering all of these filings, still concluded that

Appellant had failed to meet his statutory burden. The PCRA court reasoned

that

          [Appellant] attempted to invoke the timeliness exception
       enumerated in 42 Pa.C.S.A. § 9545(b)(1)(iii). [He] argued that
       the United States Supreme Court’s decision in Alleyne v.
       United States, 133 S.Ct. 2151 (2013), constituted an after
       recognized constitutional right exception to the PCRA time bar.
       In Alleyne, the United States Supreme Court overruled Harris
       v. United States, 536 U.S. 545 (2002), and held “that any fact
       that increases the mandatory minimum is an element [of the
       crime] that must be submitted to the jury.” Alleyne, supra at
       2155 (internal quotation marks omitted). [Appellant] claimed
       that Alleyne announced a new constitutional right that should
       be applied retroactively, and cited to Commonwealth v.
       Munday, 78 A.3d 661 (Pa. Super 2013) in support. However,
       the Alleyne decision is silent with regard to whether it applies
       retroactively to cases pending on collateral review and upon
       review, Munday held that Alleyne was applicable to cases on
       direct review at the time of its decision. Therefore, [Appellant]
       did not successfully invoke the after-recognized constitutional
       exception, and there was not jurisdiction to address the merits of
       his claim.

             In his next claim, [Appellant] argued that he should be
       afforded relief pursuant to Miller v. Alabama, 132 S.Ct. 2455
       (2012). In Miller v. Alabama, 132 S.Ct. at 2460, the United
       States Supreme Court held that “mandatory life without parole
       for those under the age of 18 at the time of their crimes violates
       the Eighth Amendment’s probation against ‘cruel and unusual[’]
       punishments.”

              As an initial matter, in order to involve an exception to the
       [PCRA’s] timeliness provision, there is a requirement that the
       petitioner file his claim “within 60 days of the date the claim
       could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).
       Pursuant to the after-recognized constitutional exception, the
       60-day requirement begins from the date the decision was
       issued. The United States Supreme Court issued its decision in
       Miller on June 25, 2012. However, at this time, [Appellant’s]
       appeal of his previous PCRA petition was pending. For his Miller
       claim to be timely, [Appellant] had to file it sixty days from “the

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        resolution of review of the pending PCRA petition by the highest
        court in which review is sought.” Commonwealth v. Lark, 746
        A.2d 585, 588 [(Pa. 2000)]. The Pennsylvania Supreme Court
        denied allocatur on March 27, 2013. [Appellant] did not file his
        petition raising Miller until September 20, 2013, well after the
        60-day requirement. Therefore, Appellant was untimely in
        presenting this claim.

               Even if his claim were timely, [Appellant] would not have
        been afforded relief. The Miller holding specifically limited itself
        to juveniles under the eighteen years of age who are sentenced
        to life without parole for committing the crime of murder.
        Although [Appellant] was sentenced to life without parole and
        convicted of murder, he was over the age of 18 at the time of
        the crime; therefore, the holding of Miller was inapplicable.

PCRA Court Opinion, 12/18/15, at 3-4.

        The PCRA court also correctly rejected Appellant’s equal protection

challenge     to   the   application     of    Miller.   See   id.,   at   4   (quoting

Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super. 2013)). Finally,

the PCRA court noted that Appellant’s claims of ineffective assistance of

counsel and court bias were waived because they could have been raised on

direct appeal or in an earlier PCRA petition. See id., at 5. See also 42

Pa.C.S.A. § 9544(b).

        Like all of his pro se filings, Appellant’s briefs present a rambling,

prolix argument, the meaning of which is hard to decipher.1 To the extent he

attempts to argue new exceptions to the PCRA’s time bar, they are waived.

See Burton. In addition, it is now well settled that the time restrictions of
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1
    Appellant filed a supplement to his original appellate brief.




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the     PCRA    are    not    subject    to   equitable      tolling.     See    generally

Commonwealth v. Callahan, 101 A.3d 118, 123 (Pa. Super. 2014).

Finally, Appellant cites to the United States Supreme Court’s recent decision

in Montgomery v. Louisiana, 136 S.Ct. 718 (2016), wherein the Court

ruled    that   its   prior   decision   in   Miller   had     full     retroactive   effect.

Montgomery is inapplicable. As noted, Appellant was an adult when he

killed the victim in the vacant lot all those many years ago.

        In sum, Appellant’s latest PCRA petition is untimely. He has failed to

meet his burden of proof with regard to any exception to the timeliness

requirements of the PCRA. Thus, the PCRA court correctly concluded that it

lacked jurisdiction and properly denied Appellant post-conviction relief.

        Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/5/2016




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