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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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).
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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(unpublished memorandum), appeal denied, 981 A.2d 216 (Pa. 2009).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Super. 2012) (unpublished memorandum).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”).
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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;
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(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
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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
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