J-S30041-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

DANIEL M. WHITE

                        Appellant                   No. 117 EDA 2015


              Appeal from the PCRA Order December 9, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-1103122-1990


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                           FILED JUNE 04, 2015

     Daniel White, who is serving a life sentence for second degree murder,

appeals from an order dismissing his fifth petition seeking relief under the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq. We affirm.

     The facts of this case are as follows:

     One evening, [White] and his accomplice Eric Dowling
     entered a house in the Tasker Homes Projects. As they
     entered, [White] was holding a cocked .25 automatic hand
     gun with his finger on the trigger.      [White] accosted
     Charles Wright, who was present in the house, taking
     Wright’s cigarettes and directing Dowling to take the
     belongings in Wright’s pockets. [White] ultimately
     attempted to take Wright’s car keys by threatening Wright
     with the gun held up to his forehead. Wright’s friend
     Stone, who had been sitting in the house, attempted to
     intervene and, after a struggle, was fatally shot as he lay
     prone on the ground. Dowling then went through the
     fallen Stone’s pockets and took his money, at which point
     Dowling and [White] ran off. Shortly thereafter, Stone was
     found dead in the spot where he lay.
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Commonwealth v. White, No. 901 EDA 2001 (Pa. Super. Feb. 26, 2002)

(unpublished memorandum) (quoting Commonwealth v. White, 641 A.2d

1229 (Pa.Super.1993)).

        Following a nonjury trial in October 1991, the trial court found White

guilty of second degree murder,1 robbery,2 criminal conspiracy,3 and

possessing an instrument of crime.4              The court sentenced White to life

imprisonment      for    second    degree      murder   and    concurrent   terms   of

imprisonment for the other convictions. This Court affirmed defendant’s

judgments of sentence on December 2, 1993. Defendant did not seek

allocatur.

        On January 2, 1997, White filed his first PCRA petition. On March 6,

2001, the PCRA court dismissed this petition.                 This Court affirmed on

February 26, 2002, and the Supreme Court denied allocatur on August 9,

2002.

        On November 25, 2003, White filed his second PCRA petition. On June

17, 2004, the PCRA court dismissed the petition.              On June 20, 2005, this

Court dismissed White’s appeal for failure to file an appellate brief.
____________________________________________


1
    18 Pa.C.S. § 2502(b).
2
    18 Pa.C.S. § 3701.
3
    18 Pa.C.S. § 903.
4
    18 Pa.C.S. § 907.



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       On May 9, 2005, defendant filed his third PCRA petition. On March 16,

2006, the PCRA court dismissed it as untimely. On December 12, 2007, this

Court affirmed.

       On February 5, 2008, White filed his fourth PCRA petition. On

December 9, 2008, the PCRA court dismissed it as untimely. White did not

file an appeal.

       On June 11, 2010, White filed his fifth PCRA petition, the petition

presently on appeal. On August 4, 2014, the PCRA court issued a notice of

intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P.

907.    On December 9, 2014, the PCRA court dismissed the petition as

untimely. On December 16, 2014, White filed a timely notice of appeal. The

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

Pa.R.A.P. 1925(b) statement.

       In violation of Pa.R.A.P. 2116, White fails to include a statement of

questions presented in his appellate brief.      We will excuse this omission

because he limits his brief to a single coherent issue: whether Miller v.

Alabama, 567 U.S. --, 132 S. Ct. 2455 (2012), applies retroactively to his

case. Miller held that mandatory life sentences without parole for

defendants under age 185 at the time they commit murder violate the Eighth


____________________________________________


5
 The record indicates that White was 16 years old at the time of the
murder.



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Amendment’s prohibition on “cruel and unusual punishments.” Miller, 132

S.Ct. at 2460.

      We lack jurisdiction over White’s appeal due to his PCRA petition’s lack

of timeliness. 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).

      However, “[a] petition where the judgment of sentence became final

before the effective date of the [1995] amendments [to the PCRA] shall be

deemed timely if the petitioner's first petition was filed within one year of

the   effective   date   of    the   [1995]   amendments       [to   the   PCRA].”

Commonwealth v. Thomas, 718 A.2d 326, 328 (Pa.Super.1998); Act of

November 17, 1995, P.L. 1118, No. 32 (Spec. Sess. No. 1), § 3(1). “Because

the effective date of the amendments is January 16 1996, the operative

deadline   for    first-time    PCRA    petitions     is   January   16,    1997.”




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Commonwealth v. Crider, 735 A.2d 730, 732 (Pa.Super.1999) (citations

omitted).

      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).

      White’s judgment of sentence became final on Monday, January 3,

1994, the final day for filing a petition for allowance of appeal with the

Supreme Court.     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).

Because this date preceded the effective date of the amendments to the

PCRA, he had one year from the date the amendments took effect, i.e.,

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January 16, 1997, to file a timely PCRA petition. Thomas, Crider, supra.

White did not file the present PCRA petition until June 11, 2010, over

thirteen years after January 1997. Therefore, his petition is untimely on its

face.

        White does not satisfy any of the three exceptions to the one year

statute of limitations.   He does not allege governmental interference or

newly discovered evidence (section 9545(b)(1)(i-ii)). Nor does White satisfy

the third exception, retroactive application of a constitutional right (section

9545(b)(1)(iii)), because neither our Supreme Court nor the United States

Supreme Court has held that Miller applies retroactively.             Our Supreme

Court held in Commonwealth v. Cunningham, 81 A.3d 1, 11 (Pa. 2013),

that Miller does not apply retroactively. The United States Supreme Court

recently agreed to decide whether            Miller applies retroactively,   see

Montgomery v. Louisiana, -- U.S. --, 135 S.Ct. 1546 (3/23/15), but it will

not decide Montgomery until its 2015-16 term beginning in October 2015.

Absent a final decision in White’s favor from the United States Supreme

Court, he is not eligible for relief under section 9545(b)(1)(iii).

        White’s PCRA petition is untimely, and he has not established any

exception to the PCRA time bar. Accordingly, we lack jurisdiction to address

his petition, and we affirm the order dismissing his petition.

        Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/4/2015




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