J-S78036-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

GREGORY BACON

                               Appellant               No. 568 WDA 2016


                    Appeal from the PCRA Order April 5, 2016
    in the Court of Common Pleas of Westmoreland County Criminal Division
                       at No(s): CP-65-CR-0004967-2006

BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD,* J.

MEMORANDUM BY FITZGERALD, J.:                FILED: October 14, 2016

        Appellant, Gregory Bacon, appeals pro se from the order entered in

the Westmoreland County Court of Common Pleas denying his second Post

Conviction Relief Act1 (“PCRA”) petition. Appellant argues he is entitled to

resentencing based on the United States Supreme Court’s holding in Miller

v. Alabama, 132 S. Ct. 2455 (2012). We affirm.

        On December 7, 2007, a jury convicted Appellant of first-degree

murder2 and firearms not to be carried without a license3 for offenses that

were committed when Appellant was twenty-four years old. The trial court

sentenced Appellant on January 30, 2008, to a mandatory term of life

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. § 2502(a).
3
    18 Pa.C.S. § 6106(a)(1).
J-S78036-16

without parole. This Court affirmed the judgment of sentence on November

25, 2008, and our Supreme Court denied allowance of appeal on July 22,

2009.    See Commonwealth v. Bacon, 964 A.2d 933 (Pa. Super. 2008)

(unpublished memorandum), appeal denied, 981 A.2d 216 (Pa. 2009).

        Appellant timely filed his first PCRA petition pro se on August 10,

2009.     The PCRA court appointed counsel, who subsequently filed a “no-

merit” letter and a motion to withdraw. The PCRA court granted counsel’s

motion and issued a notice of its intent to dismiss Appellant’s petition

without a hearing pursuant to Pa.R.Crim.P. 907.      Appellant filed a pro se

response and a motion requesting the appointment of counsel.        The PCRA

court denied Appellant’s motion and dismissed his petition.        This Court

affirmed the dismissal. See Commonwealth v. Bacon, 60 A.3d 567 (Pa.

Super. 2012) (unpublished memorandum).

        Appellant filed the current PCRA petition pro se on February 1, 2016.4

The PCRA court subsequently issued a Rule 907 notice to which Appellant

responded pro se. The PCRA court dismissed Appellant’s petition on April 5,

2016, and Appellant timely filed a notice of appeal. The PCRA court did not


4
  That same day, Appellant filed a pro se request for appointment of counsel,
which the PCRA court did not address. However, as Appellant is not entitled
to appointment of counsel beyond his first PCRA, we decline to find error in
the court’s failure to dispose of the motion. See Commonwealth v. Smith,
818 A.2d 494, 498 (Pa. 2003) (stating “the judge shall appoint counsel to
represent the defendant on the defendant’s first petition for post-
conviction collateral relief”).




                                     -2-
J-S78036-16

order Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).

     “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and free of legal error.”       Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).

     As our Supreme Court has explained:

        the PCRA timeliness requirements are jurisdictional in
        nature and, accordingly, a PCRA court is precluded from
        considering untimely PCRA petitions. We have also held
        that even where the PCRA court does not address the
        applicability of the PCRA timing mandate, th[e] Court will
        consider the issue sua sponte, as it is a threshold question
        implicating our subject matter jurisdiction and ability to
        grant the requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (citations

omitted).

     A PCRA petition “must normally be filed within one year of the date the

judgment becomes final . . . unless one of the exceptions in § 9545(b)(1)(i)-

(iii) applies and the petition is filed within 60 days of the date the claim

could have been presented.”      Commonwealth v. Copenhefer, 941 A.2d

646, 648 (Pa. 2007) (some citations and footnote omitted).         The three

exceptions to the general one-year time limitation are:

        (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;


                                    -3-
J-S78036-16



         (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).

      Instantly, the sole issue raised in Appellant’s current petition was

whether his mandatory life sentence was unconstitutional pursuant to

Miller, which was decided on June 25, 2012.        On January 25, 2016, the

United States Supreme Court issued its decision in Montgomery v.

Louisiana, 136 S. Ct. 718 (2016), and held, “Miller announced a

substantive rule of constitutional law. Like other substantive rules, Miller is

retroactive[.]”   Montgomery, 136 S. Ct. at 734.        Thereafter, this Court

issued its decision in Commonwealth v. Secreti, 134 A.3d 77 (Pa. Super.

2016), and held the decision in Montgomery renders Miller retroactive

“effective as of the date of the Miller decision.” Secreti, 134 A.3d at 82.

Therefore, pursuant to this Court’s decision in Secreti, Appellant timely filed

his current petition within sixty days of Montgomery, which placed him

within the purview of Miller. See id.; Copenhefer, 941 A.2d at 648.

      Nevertheless, Appellant was twenty-four years old at the time he

committed the offenses and, thus, is not entitled to relief. See Miller, 132

S. Ct. at 2464 (holding mandatory life without parole sentences for


                                     -4-
J-S78036-16

individuals under eighteen at the time of their crimes are unconstitutional).

Accordingly, we affirm the PCRA court’s order dismissing Appellant’s petition.

See Wilson, 824 A.2d at 833.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/14/2016




                                    -5-
