Commonwealth v. Miller

Decision Date26 September 2014
Docket NumberNo. 3551 EDA 2013,3551 EDA 2013
Citation2014 PA Super 214,102 A.3d 988
CourtPennsylvania Superior Court
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. Eugene MILLER, Appellant.

Eugene Miller, appellant, pro se.

John J. Whelan, Assistant District Attorney, Media and Michelle P. Hutton, Assistant District Attorney, Media, for Commonwealth, appellee.

BEFORE: DONOHUE, J., MUNDY, J., and STABILE, J.

Opinion

OPINION BY MUNDY, J.:

Appellant, Eugene Miller, appeals pro se from the November 21, 2013 order dismissing his second petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541 –9546. After careful review, we affirm.

We summarize the relevant procedural history of this case as follows. On October 25, 2004, the Commonwealth filed an information charging Appellant with one count each of murder, simple assault, aggravated assault, recklessly endangering another person (REAP), persons not to possess a firearm, possession of a firearm without a license, and possession of an instrument of a crime (PIC).1 On May 10, 2005, Appellant proceeded to a jury trial. On May 25, 2005, the jury found Appellant guilty of third-degree murder, aggravated assault, possession of a firearm without a license, and PIC. The Commonwealth withdrew the remaining charges. On July 18, 2005, the trial court imposed an aggregate sentence of 27 ½ to 55 years' imprisonment.2 Relevant to this appeal, the trial court imposed the mandatory minimum sentence of 25 years' imprisonment pursuant to Section 9714(a)(2). This was based on Appellant's previous convictions in New Jersey. See 42 Pa.C.S.A. § 9714(a)(2) (providing for a minimum sentence of 25 years' imprisonment [w]here the person had at the time of the commission of the current offense previously been convicted of two or more such crimes of violence arising from separate criminal transactions[ ]).

On July 20, 2005, Appellant filed a timely post-sentence motion, which the trial court denied on December 14, 2005. Appellant filed a timely notice of appeal, and this Court affirmed the judgment of sentence on October 23, 2007. Commonwealth v. Miller, 943 A.2d 318 (Pa.Super.2007) (unpublished memorandum) (Miller I ), appeal denied, 596 Pa. 753, 947 A.2d 736 (2008). Our Supreme Court denied Appellant's petition for allowance of appeal on May 8, 2008. Appellant did not file a petition for a writ of certiorari with the United States Supreme Court.

On August 7, 2009, Appellant filed his first PCRA petition. The PCRA court appointed counsel, who filed an application to withdraw along with a “no-merit” letter pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988) (en banc ), and their progeny. On April 30, 2010, the PCRA court granted PCRA counsel's application to withdraw. On December 14, 2010, the PCRA court issued its notice of intent to dismiss Appellant's PCRA petition without a hearing pursuant to Pennsylvania Rule of Criminal Procedure 907. Appellant did not file a response, and the PCRA court entered an order dismissing Appellant's PCRA petition on February 8, 2011. Appellant filed a timely notice of appeal and this court affirmed the PCRA court's order on May 4, 2012. Commonwealth v. Miller, 50 A.3d 233 (Pa.Super.2012) (unpublished memorandum). Appellant did not file a petition for allowance of appeal with our Supreme Court.

On August 8, 2013, Appellant filed his second PCRA petition. On October 1, 2013, the PCRA court issued its Rule 907 notice, concluding that Appellant's petition was untimely filed, and Appellant had not proven an exception to the time-bar. Appellant did not file a response. On November 21, 2013, the PCRA court entered an order dismissing Appellant's second PCRA petition. On December 16, 2013, Appellant filed a timely notice of appeal.3

On appeal, Appellant raises the following two issues for our review.

[1.] Whether [a] newly recognized constitutional right ... [in Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) ], has been held to appeal [sic] retroactively, within the 60–day filing period begins [sic] to run upon the date of the underlying judicial decision of June 17, 2013[?]
[2.] Whether the decision was rendered during the pendency of [Appellant]'s PCRA appeal and the issue was properly preserved[?]

Appellant's Brief at 6.

We begin by noting our well-settled standard of review. “In reviewing the denial of PCRA relief, we examine whether the PCRA court's determination is supported by the record and free of legal error.” Commonwealth v. Fears, ––– Pa. ––––, 86 A.3d 795, 803 (2014) (internal quotation marks and citation omitted). “The scope of review is limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the trial level.” Commonwealth v. Spotz, ––– Pa. ––––, 84 A.3d 294, 311 (2014) (citation omitted). “It is well-settled that a PCRA court's credibility determinations are binding upon an appellate court so long as they are supported by the record.” Commonwealth v. Robinson, –––Pa. ––––, 82 A.3d 998, 1013 (2013) (citation omitted). However, this Court reviews the PCRA court's legal conclusions de novo. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.Super.2014) (citation omitted).

We also note that a PCRA petitioner is not automatically entitled to an evidentiary hearing. We review the PCRA court's decision dismissing a petition without a hearing for an abuse of discretion. Commonwealth v. Roney, 622 Pa. 1, 79 A.3d 595, 604 (2013) (citation omitted).

[T]he right to an evidentiary hearing on a post-conviction petition is not absolute. It is within the PCRA court's discretion to decline to hold a hearing if the petitioner's claim is patently frivolous and has no support either in the record or other evidence. It is the responsibility of the reviewing court on appeal to examine each issue raised in the PCRA petition in light of the record certified before it in order to determine if the PCRA court erred in its determination that there were no genuine issues of material fact in controversy and in denying relief without conducting an evidentiary hearing.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super.2012) (internal citations omitted). [A]n evidentiary hearing is not meant to function as a fishing expedition for any possible evidence that may support some speculative claim of ineffectiveness.” Roney, supra at 605 (citation omitted).

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. Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super.2014) (citation omitted). Pennsylvania law makes clear that when “a PCRA petition is untimely, neither this Court nor the trial court has jurisdiction over the petition.” Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa.Super.2014) (citation omitted). 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 [.] Commonwealth v. Ali, ––– Pa. ––––, 86 A.3d 173, 177 (2014) (internal quotation marks and citation omitted). This is to “accord finality to the collateral review process.” Commonwealth v. Watts, 611 Pa. 80, 23 A.3d 980, 983 (2011) (citation omitted). “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. Lawson, 90 A.3d 1, 5 (Pa.Super.2014) (citation omitted). The PCRA provides, in relevant part, as follows.

§ 9545. Jurisdiction and proceedings

...

(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 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.
(2) Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.

...

42 Pa.C.S.A. § 9545(b).

In the case sub judice, Appellant was sentenced on July 18, 2005. This Court affirmed the judgment of sentence on October 23, 2007, and our Supreme Court denied allocator on May 8, 2008. Appellant did not seek a writ of certiorari from the United States Supreme Court. Therefore, Appellant's judgment of sentence became final on August 6, 2008, when the period for Appellant to file a petition for a writ of certiorari expired. See 42 Pa.C.S.A. § 9545(b)(3) (stating, “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[ ]); U.S. Sup.Ct. R. 13(1) (stating “a petition for a writ of certiorari to review a judgment in any case ... is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment[ ]). Therefore, Appellant had until August 6, 2009 to timely file his PCRA petition. As Appellant filed the instant petition on ...

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