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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RODERICK TODD ALLEN,
Appellant No. 213 WDA 2014
Appeal from the PCRA Order Entered January 14, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0007206-1979
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 2, 2014
Appellant, Roderick Todd Allen, appeals from the trial court’s January
14, 2014 order denying his petition for relief filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
On March 28, 1980, at the conclusion of a jury trial, Appellant was
convicted of second-degree murder, robbery, criminal conspiracy, and
firearms violations. On June 30, 1980, he was sentenced to, inter alia, a
term of life imprisonment.
On September 11, 1980, Appellant filed a pro se PCRA petition.
Appellant was appointed counsel. A hearing was held on May 5, 1981.
Following the hearing, the court reinstated Appellant’s right to file a direct
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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appeal nunc pro tunc, and his right to file post-sentence motions.
Subsequently, post-sentence motions were filed; they were denied on
January 12, 1983. Appellant filed an appeal nunc pro tunc, and this Court
affirmed Appellant’s judgment of sentence on May 24, 1985. See
Commonwealth v. Allen, 496 A.2d 848 (Pa. Super. 1985) (unpublished
memorandum). The Pennsylvania Supreme Court denied Appellant’s petition
for allowance of appeal on December 13, 1985.
Appellant filed a pro se petition to file a writ of coram nobis on January
28, 2003. Counsel was appointed and subsequently filed a motion to
withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
and Commonwealth v. Finley, 479 A.2d 568 (Pa. Super. 1984). The court
granted counsel’s motion to withdraw on September 23, 2003. The petition
was dismissed on October 23, 2003. Appellant filed a timely appeal. On
June 27, 2005, this Court reversed the trial court’s order and remanded the
matter for a hearing to determine whether Appellant’s claims were time-
barred. See Commonwealth v. Allen, 881 A.2d 877 (Pa. Super. 2005)
(unpublished memorandum). Counsel was appointed, and a hearing was
held on November 6, 2006. The trial court again denied Appellant’s petition
on December 20, 2006.
Appellant filed a timely appeal through counsel on January 11, 2007.
This appeal was docketed as 153 WDA 2007. In addition, Appellant filed a
pro se notice of appeal on January 15, 2007. This appeal was docketed as
178 WDA 2007. On February 13, 2007, this Court dismissed the appeal
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docketed at 178 WDA 2007, as it was duplicative of the appeal docketed at
153 WDA 2007.
Before we disposed of the appeal docketed at 153 WDA 2007,
Appellant filed a pro se PCRA petition on October 27, 2007. The PCRA court
denied this petition (for lack of jurisdiction, due to Appellant’s appeal
pending at 153 WDA 2007) on March 4, 2008. Appellant filed a notice of
appeal on March 27, 2008. This appeal was docketed as 1116 WDA 2008;
subsequently, this Court granted Appellant’s petition to discontinue this
appeal on December 8, 2008.
This Court affirmed the PCRA court’s order denying Appellant PCRA
relief on April 3, 2008. See Commonwealth v. Allen, 954 A.2d 31 (Pa.
Super. 2008) (unpublished memorandum). The Pennsylvania Supreme
Court denied Appellant’s petition for allowance of appeal on December 2,
2008. See Commonwealth v. Allen, 599 A.2d 705 (Pa. 2008).
Appellant filed the instant PCRA petition on August 13, 2012. An
amended counseled PCRA petition was filed on November 16, 2012. The
court issued a Pa. R. Crim. P. 907 notice of its intent to dismiss on
November 8, 2013. The PCRA court dismissed Appellant’s petition on
January 14, 2014. Appellant filed a timely notice of appeal, as well as a
timely concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b).
Appellant now presents the following question for our review:
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I. Whether the PCRA [c]ourt abused its discretion by denying
[Appellant] post-conviction relief, rather than vacating
[Appellant’s] sentence and scheduling a re-sentencing
hearing at which he would be sentenced in accordance
with newly recognized [c]onstitutional rights as established
by the United States Supreme Court in Miller v.
Alabama[?]
Appellant’s brief at 4.
Before we may address Appellant’s claim, we must assess the
timeliness of his petition, because the PCRA time limitations implicate our
jurisdiction and may not be altered or disregarded in order to address the
merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267
(Pa. 2007) (stating PCRA time limitations implicate our jurisdiction and may
not be altered or disregarded to address the merits of the petition);
Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002)
(holding the Superior Court lacks jurisdiction to reach merits of an appeal
from an untimely PCRA petition).
Under the PCRA, any petition for post-conviction relief, including a
second or subsequent one, must be filed within one year of the date the
judgment of sentence becomes final, unless one of the exceptions set forth
in 42 Pa.C.S. § 9545(b) applies. That section states, in relevant part:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition
alleges and the petitioner proves that:
(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
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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). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, the Pennsylvania Supreme Court denied Appellant’s petition for
allowance of appeal on December 13, 1985. Thus, Appellant’s judgment of
sentence became final 60 days thereafter, or on March 13, 1986. See 42
Pa.C.S. § 9545(b)(3) (stating that a judgment of sentence becomes final at
the conclusion of direct review or the expiration of the time for seeking the
review); U.S. Supreme Ct. Rule 20.1 (providing 60 days for the filing of a
writ of certiorari). Consequently, Appellant had until March 13, 1987, to file
a timely PCRA petition. He did not file the instant petition until August 13,
2012. Appellant was required to plead and prove in his PCRA petition that
one of the above-stated exceptions applied to his claim(s).
In his PCRA petition, Appellant relied on the holding of the United
States Supreme Court in Miller v. Alabama, 132 S.Ct. 2455 (2012), in
support of his claim that the instant petition was not time-barred under the
exception set forth in section 9545(b)(1)(iii). The Miller Court held that a
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mandatory sentence of life imprisonment without the possibility of parole for
a juvenile constitutes a violation of the Eighth Amendment. However, the
Court’s holding in Miller did not reach the question of whether its ruling
applied retroactively.
Subsequently, the Pennsylvania Supreme Court addressed the issue of
the retroactive application of Miller in Commonwealth v. Cunningham,
81 A.3d 1 (Pa. 2013). The Cunningham Court noted:
Teague v. Lane, 489 U.S. 288, [] (1989) (plurality), delineated
a general rule of non-retroactivity for new procedural,
constitutional rules announced by the Court … subject to two
narrow exceptions…. As relevant here, the exceptions extend to
“rules prohibiting a certain category of punishment for a class of
defendants because of their status or offense,” and “watershed
rules of criminal procedure implicating the fundamental fairness
and accuracy of the criminal proceeding.”
Cunningham, 81 A.3d at 4. The Court then held that Miller did not
“categorically bar a penalty for a class of offenders,” and, therefore, Miller
was not retroactive pursuant to the first Teague exception. Id. at 10. The
Court specifically declined to determine whether Miller was retroactive
pursuant to the second Teague exception (i.e., that Miller constituted a
“watershed ruling of criminal procedure”), as the Appellant Miller had not
raised that claim. Id.
Neither the United States Supreme Court, nor the Supreme Court of
Pennsylvania, has held that the right recognized by the Supreme Court in
Miller applies retroactively. We are thus constrained to conclude that
Appellant has failed to plead and prove the exception to the PCRA time bar
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set forth in section 9545(b)(1)(iii). Therefore, the PCRA court did not err in
dismissing Appellant’s time-barred PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/2014
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