J-S50032-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee

                    v.

HENRY L. WILLIAMS,

                         Appellant                     No. 314 WDA 2014


           Appeal from the PCRA Order entered January 27, 2014,
             in the Court of Common Pleas of Allegheny County,
            Criminal Division, at No(s): CP-02-CR-0009970-1972


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                             FILED AUGUST 11, 2014



petition for post-conviction relief filed pursuant to the Post Conviction Relief

                          S.A. §§ 9541-46.      PCRA counsel has also filed a

petition to withdraw. We affirm.

      The pertinent facts and procedural history are as follows: On October

28, 1972, police charged Appellant, then twenty-one years of age, with two

counts of criminal homicide and related charges, after he attempted to rob a

local pharmacy. On June 28, 1973, Appellant entered a general guilty plea



killings constituted first-degree murder. Thus, that same day, the trial court

sentenced Appellant to two concurrent terms of life imprisonment without

the possibility of parole. Appellant did not file a direct appeal.
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      On January 26, 1979, Appellant filed his first petition for post-

conviction relief under the former Post-

The PCHA court appointed counsel, and after an evidentiary hearing, the

PCHA court denied relief. On April 25, 1980, our Supreme Court affirmed.

Commonwealth v. Williams, 413 A.2d 658 (Pa. 1980).              Appellant filed

additional PCHA petitions on September 28 and October 22, 1982.             The

PCHA court denied relief on November 8, 1982. Appellant filed yet another

post-conviction petition, this time under the PCRA, on June 5, 1990.        The

PCRA court denied relief on August 8, 1990, and in an unpublished

memorandum filed on June 11, 1991, this Court affirmed. Commonwealth

v. Williams, 596 A.2d 255 (1991).

      Appellant filed a pro se PCRA petition on or about August 24, 2012.

The PCRA court appointed counsel, and on October 4, 2013, PCRA counsel

filed an amended petition. The PCRA court issued Pa.R.Crim.P. 907 notice of



file a response.    By order entered January 27, 2014, the PCRA court

dismissed A

Appellant failed to establish the applicability of an exception to the time bar.

This appeal followed. Both Appellant and the PCRA court have complied with

Pa.R.A.P. 1925.




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        In lieu of an a                                                    Anders1

brief and a petition to withdraw. Compliance with Anders applies to counsel

who seeks to withdraw from representation on direct appeal.                Anders

imposes stricter requirements than those imposed when counsel seeks to

withdraw during the post-conviction process pursuant to the dictates of

Commonwealth              v.   Turner,     544   A.2d   927   (Pa.     1988),   and

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

See Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super.



wishes to raise have no merit under a Turner/Finley analysis.

        Our Supreme Court has explained:

             These cases establish the procedure for withdrawal of
          court-appointed counsel in collateral attacks on criminal
          convictions.   Independent review of the record by
          competent counsel is required before withdrawal is
          permitted. Such independent review requires proof of:

          1)         -                               el detailing the
               nature and extent of his [or her] review;

          2)        -
               the petitioner wished to have reviewed;

          3)                                                  -
                                                          meritless;

          4) The PCRA court conducting its own independent
             review of the record; and
____________________________________________


1
    Anders v. California, 386 U.S. 738 (1967).




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          5) The PCRA court agreeing with counsel that the
             petition was meritless.

Commonwealth v. Pitts, 981 A.2d 875, 876 n.1, (Pa. 2009) (citations

omitted).      Here, counsel has complied with the mandates of Turner and

Finley, as summarized in Pitts, supra.              We therefore must determine



was untimely filed, and whether Appellant can establish an exception to the




petition under the PCRA is whether the determination of the PCRA court is

supported      by   the   evidence    of   record   and    is   free    of    legal   error.

Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA



findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).          Moreover, a PCRA court may decline to hold a

hearin

claim is patently frivolous and is without a trace of support in either the

record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011

(Pa. Super. 2001).

         The   timeliness   of    a   post-conviction     petition     is    jurisdictional.

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

omitted). Thus, if a PCRA petition is untimely, neither an appellate court nor


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the PCRA court has jurisdiction over the petition. Id                     t jurisdiction,



raised in an untimely petition. Id.

      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

becomes final unless the petition alleges, and the petitioner proves, an

exception to the time for filing the petition. Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000); 42 Pa.C.S.A. § 9545(b)(1). Under

these exceptions,

been interference by government officials in the presentation of the claim; or

(2)   there   exists   after-discovered    facts    or   evidence;   or    (3)   a   new

                                                   Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa. Super. 2007) (citations omitted).                 A PCRA petition



                                                              Gamboa-Taylor, 753

A.2d at 783. See also 42 Pa.C.S.A. § 9545(b)(2). Moreover, exceptions to

the time restrictions of the PCRA must be pled in the petition, and may not

be raised for the first time on appeal.         Commonwealth v. Burton, 936

A.2d 521, 525 (Pa. Super. 2007); see also Pa.R.A.P.

raised before the lower court are waived and cannot be raised for the first




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       Because Appellant did not file a direct appeal, for PCRA purposes,

                                                                               or

about July 30, 1973.2 42 Pa.C.S.A. § 9545(b)(3). Appellant filed the instant

PCRA petition almost forty years later, such that it is patently untimely

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

enumerated exceptions applies.            See Commonwealth v. Beasley, 741

A.2d 1258, 1261 (Pa. 1999).

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



under the exception of subsection 9545(b)(1)(iii) because the United States

Supreme Court recognized a new constitutional right in Miller v. Alabama,

132 S.Ct. 2455 (2012).          In Miller, the high court held that mandatory

                                                                          time of



                            Miller, 132 S.Ct. at 2460. Appellant asserts that the

Miller decision should be applied retroactively to his life sentence.




____________________________________________


2
   Although the PCRA provided a one-year grace period for criminal
defendants whose convictions pre-dated the 1995 amendments to the PCRA,
this subsection applied only to the filing of a first petition for post-conviction
relief. See generally Commonwealth v. Johnson, 732 A.2d 639 (Pa.
Super. 1999). The grace period does not to subsequent petitions. Id.




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     Initially, we note that Appellant was not a juvenile when he committed

the murders, rendering the Miller holding inapposite. Moreover, even had

Appellant been a juvenile at that time, our Supreme Court has determined

that the Miller decision should not be applied retroactively. See generally,

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013). Thus, Appellant



     Appellant, in the alternative, attempts to establish an exception to the

                               ing the scientific evidence discussed in Miller



present counsel, however, these same evidence was referenced in the

                                                   Roper v. Simmons, 543

U.S. 551 (2005) and Graham v. Florida, 560 U.S. 48 (2010).           At best,



        Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008); see

also Commonwealth v. Lark, 746 A.2d 585, 588 n.4 (explaining that




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



                           -

withdraw.


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     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2014




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