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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
NICHOLAS ANDREW WHITE
Appellant No. 455 WDA 2015
Appeal from the Order Entered March 11, 2015
In the Court of Common Pleas of Butler County
Criminal Division at No(s): CP-10-CR-0011435-1998
BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.
JUDGMENT ORDER BY LAZARUS, J.: FILED JULY 14, 2015
Nicholas Andrew White appeals from the order of the Court of Common
Pleas of Butler County that dismissed as untimely his petition filed pursuant
to the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. For the
following reasons we affirm.
On September 28, 1999, the trial court sentenced White to life
imprisonment without parole for homicide, plus two to four months’
incarceration for abuse of a corpse. White was seventeen years old when he
committed the underlying offenses.
White filed a PCRA petition on July 9, 2010. Counsel was appointed
and filed three amended petitions. On November 13, 2013, the court stayed
the proceedings pending the decision by our Supreme Court in
Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013). On February 9,
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2015, the court issued an order notifying White of its intention to dismiss his
PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907(1) on the
basis that the petition was untimely, and accordingly, the court lacked
jurisdiction to consider it. On March 11, 2015, the court dismissed the
petition, and this appeal followed.1
Section 9545(b)(1) of the PCRA provides that a petition must be filed
within one year of the date the judgment of sentence becomes final.2 Here,
following imposition of sentence on September 28, 1999, White filed a timely
appeal to this Court, which affirmed his judgment of sentence on September
26, 2000. White’s sentence became final on October 26, 2000, when the
period in which to file a petition for allowance of appeal expired. See
Pa.R.A.P. 1113(a). Accordingly, White had until October 26, 2001, to file a
PCRA petition, unless he could allege and prove that “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)(iii).
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1
“This Court applies a de novo standard of review to the PCRA court’s legal
conclusions.” Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011).
2
For purposes of the PCRA, “a judgment becomes 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).
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In Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012), the
United States Supreme Court held that “the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without the possibility of
parole for juvenile offenders.” Id. at 2469. However, Miller did not
address whether its holding applies to individuals whose judgments of
sentence were final at the time of the Miller decision. In Cunningham,
supra, our Supreme Court held that Miller does not apply retroactively to
cases on collateral appeal. See also Commonwealth v. Cristina, ___
A.3d ___, 2015 WL 1730538 at *4, where this Court held that “in the wake
of Cunningham, it is clear that neither the United States Supreme Court,
nor the Pennsylvania Supreme Court, has held that the rule in Miller applies
retroactively.”
Based on Cunningham, the trial court properly concluded that White
could not rely on Miller to establish the exception set forth in section
9545(b)(1)(iii) of the PCRA. Therefore, White’s petition was untimely and
the court lacked jurisdiction to entertain the petition.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2015
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