Opinion
J-S44043-15 No. 456 WDA 2015
08-05-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. MICHAEL MCMILLAN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order March 3, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0006930-2007
BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J. JUDGMENT ORDER BY LAZARUS, J.:
Michael McMillan appeals from the order of the Court of Common Pleas of Allegheny 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 July 16, 2008, the trial court sentenced McMillan to life imprisonment without parole for second-degree murder and an additional aggregate sentence of 12½ to 25 years' imprisonment for robbery, aggravated assault and possession of a firearm by a minor. McMillan was seventeen years old when he committed the underlying offenses.
McMillan filed an appeal to this Court, which affirmed the judgment of sentence on May 5, 2010. McMillan did not file a petition for allowance of appeal.
On September 29, 2014, McMillan filed his second pro se PCRA petition. Counsel was appointed, and filed an amended petition. On February 5, 2015, the court issued an order notifying McMillan 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. McMillan filed a response, and on March 3, 2015, the court dismissed the petition. This appeal followed.
McMillan filed his first pro se PCRA petition on February 14, 2011, which the court dismissed without a hearing by order docketed August 8, 2011. McMillan filed an appeal, and this Court affirmed the order on November 26, 2013. The Supreme Court denied McMillan's petition for allowance of appeal on May 8, 2014.
"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).
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. Here, this Court affirmed McMillan's judgment of sentence on May 5, 2010. His sentence became final on June 4, 2010, when the period in which to file a petition for allowance of appeal expired. See Pa.R.A.P. 1113(a). Accordingly, McMillan had until June 4, 2011, 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).
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).
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 , 114 A.3d 419 (Pa. Super. 2015), 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 McMillan could not rely on Miller to establish the exception set forth in section 9545(b)(1)(iii) of the PCRA. Therefore, McMillan's petition was untimely and the court lacked jurisdiction to entertain the petition.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2015