Com. v. Hill, D. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DWAYNE HILL
Appellant No. 2235 EDA 2014
Appeal from the PCRA Order June 30, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0505682-1990
BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED APRIL 08, 2015
Dwayne Hill appeals from an order denying his seventh petition for
relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et
seq. We affirm.
In 1992, Hill was convicted of second degree murder 1 and was
sentenced to life imprisonment. On March 10, 1993, this Court affirmed his
judgment of sentence on direct appeal. Hill did not file a petition for
allowance of appeal in the Pennsylvania Supreme Court. Between 1994 and
2010, he filed six unsuccessful petitions for post-conviction relief.2 On July
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 2502(b).
2
Pa.R.A.P. 1925(a) Opinion, p. 1 n.1 (chronology of Hill’s petitions).
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5, 2012, Hill filed his seventh PCRA petition, the petition presently on
appeal. On February 19, 2014, the PCRA court sent a Pa.R.Crim.P. 907
notice of intent to dismiss the petition without a hearing. Hill filed a
response in opposition to the Rule 907 notice. On July 3, 2014, the PCRA
court dismissed Hill’s petition. Hill filed a timely notice of appeal. The PCRA
court filed a Pa.R.A.P. 1925(a) opinion without ordering Hill to file a concise
statement of matters complained of on appeal.
Acting pro se, Hill raises three issues on appeal: (1) Miller v.
Alabama, -- U.S. --, 132 S.Ct. 2455 (2012), applies retroactively to his
case; (2) the PCRA court erred in failing to appoint counsel to represent Hill
in his seventh PCRA petition; and (3) the PCRA court failed to provide
adequate notice of its intent to dismiss Hill’s petition under Pa.R.Crim.P.
907.
No court has jurisdiction to hear an untimely PCRA petition.
Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010) (citing
Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa.2003)). The PCRA
provides that a petition, “including a second or subsequent petition, shall be
filed within one year of the date the judgment becomes final.” 42 Pa.C.S. §
9545(b)(1); accord Monaco, 996 A.2d at 1079; Commonwealth v. Bretz,
830 A.2d 1273, 1275 (Pa.Super.2003). A judgment is 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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Three exceptions to the PCRA’s time-bar provide for very limited
circumstances under which a court may excuse the late filing of a PCRA
petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079. The late
filing of a petition will be excused if a petitioner alleges and proves:
(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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). A petition invoking an exception to the
PCRA time-bar must “be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Hill’s judgment of sentence became final on April 9, 1993, thirty days
after this Court affirmed on direct appeal. See 42 Pa.C.S. § 9545(b)(3)
(judgment is final at the conclusion of direct review or at the expiration of
time for seeking review). He had one year from that date, i.e., April 9,
1994, to file a timely PCRA petition. See 42 Pa.C.S. § 9545(b)(1). He did
not file his present PCRA petition until July 5, 2012, nineteen years after the
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expiration of the PCRA time-bar. Thus, his PCRA petition is untimely on its
face.
Nor does Hill satisfy any of the three exceptions to the one year
statute of limitations. 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Hill’s argument that
Miller applies retroactively to his case under section 9545(b)(1)(iii) is
wrong. Miller held that “mandatory life without parole for those under the
age of 18 at the time of their crimes violates the Eighth Amendment’s
prohibition on ‘cruel and unusual punishments.’” 132 S.Ct. at 2460(emphasis added). Hill was twenty years old when he committed murder.
Thus, Miller is facially inapplicable. Commonwealth v. Cintora, 69 A.3d
759, 763 (Pa.Super.2013), appeal denied, 81 A.3d 75 (Pa.2013);
Commonwealth v. Lawson, 90 A.3d 1, 6 (Pa.Super.2014) (“Miller only
addressed individuals who were juveniles when they committed the crime on
which their current conviction is based … ”). Even if Hill had been under 18
when he committed his crime, our Supreme Court has held that Miller does
not apply retroactively to life-term offenders, even juvenile offenders,
proceeding under the PCRA. Commonwealth v. Cunningham, 81 A.3d 1,
11 (Pa.2013), cert. denied, 134 S.Ct. 2724 (2014).
Hill’s remaining procedural arguments are equally groundless. He first
argues that the PCRA court should have appointed counsel to represent him
in his seventh PCRA petition. In a second or subsequent petition for
collateral relief, the PCRA court should only appoint counsel when an
unrepresented defendant satisfies the court that (1) he is unable to afford or
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otherwise procure counsel, and (2) an evidentiary hearing is required under
Pa.R.Crim.P. 908. See Pa.R.Crim.P. 904(b). An evidentiary hearing is
unnecessary when there are no disputed factual issues. Commonwealth v.
Carpenter, 725 A.2d 154, 170 (Pa.1999). Hill fails to raise any genuine
issues of material fact. He asks “whether he was a juvenile at the time of
this incident,”3 but he then admits that he was 20 years old at the time of
the murder. He also asks whether Miller applies retroactively, but this
obviously presents a question of law, not an issue of fact. Therefore, the
PCRA court properly declined to appoint counsel for Hill.
Second, Hill argues that the PCRA court’s Rule 907 notice of intent to
dismiss his petition without a hearing was defective. We disagree.
Pa.R.Crim.P. 907(a) provides in relevant part:
[T]he judge shall promptly review the [PCRA]
petition, any answer by the attorney for the
Commonwealth, and other matters of record relating
to the defendant’s claim(s). If the judge is satisfied
from this review that there are no genuine issues
concerning any material fact and that the defendant
is not entitled to post-conviction collateral relief, and
no purpose would be served by any further
proceedings, the judge shall give notice to the
parties of the intention to dismiss the petition and
shall state in the notice the reasons for the
dismissal. The defendant may respond to the
proposed dismissal within 20 days of the date of the
notice …
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3
Brief For Appellant, p. 5.
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Id. The PCRA court complied with all requirements of Rule 907. The notice
of intent stated that the PCRA court intended to dismiss Hill’s petition as
untimely and gave Hill the requisite 20 days to respond. Hill filed a brief in
opposition to the Rule 907 notice claiming that his petition was timely. The
PCRA court ultimately dismissed Hill’s petition several months later for lack
of timeliness. There were no deficiencies in the Rule 907 notice.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/2015
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