J-S11010-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRIS MILLER,
Appellant No. 592 WDA 2016
Appeal from the PCRA Order of March 18, 2016
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000546-1985
BEFORE: OLSON and RANSOM, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED MARCH 17, 2017
Appellant, Chris Miller, appeals pro se from the order entered on March
18, 2016, dismissing as untimely his petition pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
We briefly summarize the facts and procedural history of this case as
follows. On April 6, 1990, a jury convicted Appellant of first-degree murder
and conspiracy to commit murder. On June 28, 1991, the trial court
sentenced Appellant to life imprisonment. We affirmed Appellant’s judgment
of sentence. See Commonwealth v. Miller, 626 A.2d 647 (Pa. Super.
1993) (unpublished memorandum). On November 5, 1993, our Supreme
Court denied further review. See Commonwealth v. Miller, 634 A.2d
1115 (Pa. 1993). On January 7, 1997, Appellant filed his first PCRA
petition, the PCRA court denied relief, and we affirmed the PCRA court in an
*Former Justice specially assigned to the Superior Court.
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unpublished memorandum decision filed on December 4, 1997. Most
recently, on August 17, 2015, Appellant filed a pro se PCRA petition/petition
for habeas corpus relief claiming his sentence was illegal. On December 3,
2015, the PCRA court appointed counsel to represent Appellant. On
February 4, 2016, appointed counsel filed a motion to withdraw as counsel
and a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927
(Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)
(en banc). In her no-merit letter, counsel stated that Appellant “specifically
aver[red] that the decision in Alleyne [v. United States, 133 S.Ct. 2151
(2013)] announced a new constitutional right and that right should apply to
his case.” No-Merit Letter, 2/4/2016, at 4 (unpaginated). On February 9,
2016, the PCRA court granted counsel’s motion to withdraw and gave
Appellant notice of its intent to dismiss his PCRA petition without a hearing
pursuant to Pa.R.Crim.P. 907. Appellant filed a pro se response. On March
18, 2016, upon consideration of Appellant’s response, the PCRA court
dismissed Appellant’s PCRA petition as untimely. This timely pro se appeal
resulted.1
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1
Appellant filed a pro se notice of appeal on April 7, 2016. On the same
day, the PCRA court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on April 28, 2016. In lieu of an opinion pursuant to Pa.R.A.P.
1925(a), the trial court entered an order on May 5, 2016, relying upon its
orders entered on February 17, 2016 and March 18, 2016 to support its
decision in denying Appellant relief.
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Initially, we address Appellant’s contention that he is entitled to
habeas corpus relief, because there was no adequate remedy of law to
correct his illegal sentence. Appellant’s Brief at 8. We have previously
determined:
It is well-settled that the PCRA is intended to be the sole
means of achieving post-conviction relief. Unless the PCRA
could not provide for a potential remedy, the PCRA statute
subsumes the writ of habeas corpus. Issues that are
cognizable under the PCRA must be raised in a timely PCRA
petition and cannot be raised in a habeas corpus petition.
Phrased differently, a defendant cannot escape the PCRA
time-bar by titling his petition or motion as a writ of habeas
corpus.
* * *
[T]his Court [has] held that a defendant's motion to correct
his illegal sentence [is] properly addressed as a PCRA
petition[.]
Commonwealth v. Taylor, 65 A.3d 462, 465–466 (Pa. Super. 2013)
(internal citations, quotations and footnote omitted). Here, Appellant’s
challenge to the legality of his sentence is cognizable under the PCRA.
Because Appellant raises a claim that is cognizable under the PCRA, that
statute is his sole avenue of relief and he may not seek redress by filing a
writ of habeas corpus. Accordingly, we turn now to the consideration of
whether Appellant has filed a timely petition under the PCRA.
This Court has stated:
Before we may address the merits of Appellant’s arguments,
we must first consider the timeliness of Appellant's PCRA
petition because it implicates the jurisdiction of this Court
and the PCRA court. Pennsylvania law makes clear that
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when a PCRA petition is untimely, neither this Court nor the
trial court has jurisdiction over the petition. The period for
filing a PCRA petition is not subject to the doctrine of
equitable tolling; instead, the time for filing a PCRA petition
can be extended only if the PCRA permits it to be extended.
This is to accord finality to the collateral review process.
However, an untimely petition may be received when the
petition alleges, and the petitioner proves, that any of the
three limited exceptions to the time for filing the petition,
set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), are
met.
Commonwealth v. Miller, 102 A.3d 988, 992–993 (Pa. Super. 2014)
(original brackets, citations, and quotations omitted). Any PCRA petition,
including a second or subsequent petition, must be filed within one year of
the date that judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). “[A]
judgment becomes final at the conclusion of direct review, including
discretionary review to 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.A. § 9545(b)(3).
Here, Appellant’s convictions became final in February 1994, or 90
days after our Supreme Court denied review on direct appeal and the time
expired for Appellant to seek certiorari with the United States Supreme
Court.2 See U.S. Supreme Court Rule 13. Thus, Appellant’s current PCRA
____________________________________________
2
“[A] proviso to the 1995 [PCRA] amendments [] provides a grace period
for petitioners whose judgments have become final on or before the effective
date of the amendments. An otherwise untimely petition is deemed timely
provided the petition is a first petition filed within one year following the
effective date of the amendments.” Commonwealth v. Barrett, 761 A.2d
145, 147 (Pa. Super. 2000). Appellant filed his first PCRA petition under this
proviso. However, the current petition is Appellant’s second. Thus,
(Footnote Continued Next Page)
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petition, filed approximately 24 years after his judgment of sentence became
final, is patently untimely. Accordingly, Appellant was required to plead and
prove an exception to the PCRA’s timeliness requirements.
On appeal to this Court, Appellant does not invoke any of the three
limited exceptions to the time for filing a PCRA petition as set forth at 42
Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii). Instead, Appellant continues to
argue that his purported illegal sentence claim is a non-waivable challenge.
See Appellant’s Brief at 8. “[A]lthough illegal sentencing issues cannot be
waived, they still must be presented in a timely PCRA petition.” Taylor, 65
A.3d at 465. Here, we have already determined that the instant PCRA
petition was untimely. Finally, we note that Appellant presented argument
to the PCRA court that the United States Supreme Court’s decision in
Alleyne created a new, retroactive constitutional right as an exception
under 42 Pa.C.S.A. § 9545(b)(1)(iii). However, Appellant’s failure to argue
that exception on appeal renders the claim waived. Commonwealth v.
Thoeun Tha, 64 A.3d 704, 714 (Pa. Super. 2013) (“Failure properly to
develop an argument with citations to relevant legal authority renders the
issue unreviewable and will cause the issue to be waived.”). Regardless,
Appellant would not be entitled to relief, as this Court stated:
_______________________
(Footnote Continued)
Appellant was required to plead and prove an exception to the jurisdictional
requirements of the PCRA.
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Even assuming that Alleyne did announce a new
constitutional right, neither our Supreme Court, nor the
United States Supreme Court has held that Alleyne is to be
applied retroactively to cases in which the judgment of
sentence had become final. […] This Court has recognized
that a new rule of constitutional law is applied retroactively
to cases on collateral review only if the United States
Supreme Court or our Supreme Court specifically holds it to
be retroactively applicable to those cases.
Miller, 102 A.3d at 995. As such, Alleyne does not provide Appellant relief.
For all of the foregoing reasons, we conclude the PCRA court correctly
reviewed Appellant’s claims under the PCRA and then determined them to be
untimely without exception. As such, the PCRA court lacked jurisdiction and
properly dismissed Appellant’s PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2017
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Com. v. Miller, C.
Combined Opinion