J-S11010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                   v.

CHRIS MILLER,

                         Appellant                  No. 592 WDA 2016


               Appeal from the PCRA Order of March 18, 2016
              In the Court of Common Pleas of Fayette County
            Criminal Division at No(s): CP-26-CR-0000546-1985


BEFORE: OLSON and RANSOM, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                            FILED MARCH 17, 2017

     Appellant, Chris Miller, appeals pro se from the order entered on March

18, 2016, dismissing as untimely his petition pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

     We briefly summarize the facts and procedural history of this case as

follows. On April 6, 1990, a jury convicted Appellant of first-degree murder

and conspiracy to commit murder.          On June 28, 1991, the trial court

sentenced Appellant to life imprisonment. We affirmed Appellant’s judgment

of sentence.   See Commonwealth v. Miller, 626 A.2d 647 (Pa. Super.

1993) (unpublished memorandum).          On November 5, 1993, our Supreme

Court denied further review.        See Commonwealth v. Miller, 634 A.2d

1115 (Pa. 1993).        On January 7, 1997, Appellant filed his first PCRA

petition, the PCRA court denied relief, and we affirmed the PCRA court in an



*Former Justice specially assigned to the Superior Court.
J-S11010-17



unpublished memorandum decision filed on December 4, 1997.               Most

recently, on August 17, 2015, Appellant filed a pro se PCRA petition/petition

for habeas corpus relief claiming his sentence was illegal. On December 3,

2015, the PCRA court appointed counsel to represent Appellant.             On

February 4, 2016, appointed counsel filed a motion to withdraw as counsel

and a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927

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

(en banc). In her no-merit letter, counsel stated that Appellant “specifically

aver[red] that the decision in Alleyne [v. United States, 133 S.Ct. 2151

(2013)] announced a new constitutional right and that right should apply to

his case.” No-Merit Letter, 2/4/2016, at 4 (unpaginated). On February 9,

2016, the PCRA court granted counsel’s motion to withdraw and gave

Appellant notice of its intent to dismiss his PCRA petition without a hearing

pursuant to Pa.R.Crim.P. 907. Appellant filed a pro se response. On March

18, 2016, upon consideration of Appellant’s response, the PCRA court

dismissed Appellant’s PCRA petition as untimely. This timely pro se appeal

resulted.1

____________________________________________


1
  Appellant filed a pro se notice of appeal on April 7, 2016. On the same
day, the PCRA court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on April 28, 2016. In lieu of an opinion pursuant to Pa.R.A.P.
1925(a), the trial court entered an order on May 5, 2016, relying upon its
orders entered on February 17, 2016 and March 18, 2016 to support its
decision in denying Appellant relief.



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     Initially, we address Appellant’s contention that he is entitled to

habeas corpus relief, because there was no adequate remedy of law to

correct his illegal sentence.   Appellant’s Brief at 8.   We have previously

determined:

        It is well-settled that the PCRA is intended to be the sole
        means of achieving post-conviction relief. Unless the PCRA
        could not provide for a potential remedy, the PCRA statute
        subsumes the writ of habeas corpus. Issues that are
        cognizable under the PCRA must be raised in a timely PCRA
        petition and cannot be raised in a habeas corpus petition.
        Phrased differently, a defendant cannot escape the PCRA
        time-bar by titling his petition or motion as a writ of habeas
        corpus.

                           *         *           *

        [T]his Court [has] held that a defendant's motion to correct
        his illegal sentence [is] properly addressed as a PCRA
        petition[.]

Commonwealth v. Taylor, 65 A.3d 462, 465–466 (Pa. Super. 2013)

(internal citations, quotations and footnote omitted).      Here, Appellant’s

challenge to the legality of his sentence is cognizable under the PCRA.

Because Appellant raises a claim that is cognizable under the PCRA, that

statute is his sole avenue of relief and he may not seek redress by filing a

writ of habeas corpus.   Accordingly, we turn now to the consideration of

whether Appellant has filed a timely petition under the PCRA.

     This Court has stated:

        Before we may address the merits of Appellant’s arguments,
        we must first consider the timeliness of Appellant's PCRA
        petition because it implicates the jurisdiction of this Court
        and the PCRA court. Pennsylvania law makes clear that

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          when a PCRA petition is untimely, neither this Court nor the
          trial court has jurisdiction over the petition. The period for
          filing a PCRA petition is not subject to the doctrine of
          equitable tolling; instead, the time for filing a PCRA petition
          can be extended only if the PCRA permits it to be extended.
          This is to accord finality to the collateral review process.
          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), are
          met.

Commonwealth v. Miller, 102 A.3d 988, 992–993 (Pa. Super. 2014)

(original brackets, citations, and quotations omitted).       Any PCRA petition,

including a second or subsequent petition, must be filed within one year of

the date that judgment becomes final.            42 Pa.C.S.A. § 9545(b)(1).   “[A]

judgment becomes final at the conclusion of direct review, including

discretionary review to 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)(3).

       Here, Appellant’s convictions became final in February 1994, or 90

days after our Supreme Court denied review on direct appeal and the time

expired for Appellant to seek certiorari with the United States Supreme

Court.2    See U.S. Supreme Court Rule 13. Thus, Appellant’s current PCRA
____________________________________________


2
  “[A] proviso to the 1995 [PCRA] amendments [] provides a grace period
for petitioners whose judgments have become final on or before the effective
date of the amendments. An otherwise untimely petition is deemed timely
provided the petition is a first petition filed within one year following the
effective date of the amendments.” Commonwealth v. Barrett, 761 A.2d
145, 147 (Pa. Super. 2000). Appellant filed his first PCRA petition under this
proviso.    However, the current petition is Appellant’s second.        Thus,
(Footnote Continued Next Page)


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petition, filed approximately 24 years after his judgment of sentence became

final, is patently untimely. Accordingly, Appellant was required to plead and

prove an exception to the PCRA’s timeliness requirements.

      On appeal to this Court, Appellant does not invoke any of the three

limited exceptions to the time for filing a PCRA petition as set forth at 42

Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii).       Instead, Appellant continues to

argue that his purported illegal sentence claim is a non-waivable challenge.

See Appellant’s Brief at 8. “[A]lthough illegal sentencing issues cannot be

waived, they still must be presented in a timely PCRA petition.” Taylor, 65

A.3d at 465.      Here, we have already determined that the instant PCRA

petition was untimely. Finally, we note that Appellant presented argument

to the PCRA court that the United States Supreme Court’s decision in

Alleyne created a new, retroactive constitutional right as an exception

under 42 Pa.C.S.A. § 9545(b)(1)(iii). However, Appellant’s failure to argue

that exception on appeal renders the claim waived.           Commonwealth v.

Thoeun Tha, 64 A.3d 704, 714 (Pa. Super. 2013) (“Failure properly to

develop an argument with citations to relevant legal authority renders the

issue unreviewable and will cause the issue to be waived.”).          Regardless,

Appellant would not be entitled to relief, as this Court stated:



                       _______________________
(Footnote Continued)

Appellant was required to plead and prove an exception to the jurisdictional
requirements of the PCRA.



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        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
        sentence had become final. […] 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.

Miller, 102 A.3d at 995. As such, Alleyne does not provide Appellant relief.

     For all of the foregoing reasons, we conclude the PCRA court correctly

reviewed Appellant’s claims under the PCRA and then determined them to be

untimely without exception. As such, the PCRA court lacked jurisdiction and

properly dismissed Appellant’s PCRA petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/17/2017




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