Com. v. Wilson, M.

J-S70012-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL WILSON,
Appellant No. 1469 EDA 2015
Appeal from the PCRA Order May 6, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-1214232-1970
BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*
JUDGMENT ORDER BY PLATT, J.: FILED DECEMBER 01, 2015
Appellant, Michael Wilson, appeals pro se from the order denying his
petition pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.
§§ 9541–9546. Appellant seeks relief under Miller v. Alabama, 132 S. Ct.
2455 (2012). We affirm.
Appellant is serving a life sentence following his 1971 jury conviction
of murder of the first degree for the shooting death of a rival gang member,
on October 10, 1970. Our Supreme Court affirmed the judgment of
sentence on December 5, 1974. (See Commonwealth v. Wilson, 329
A.2d 881, 886 (Pa. 1974)).
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S70012-15
Appellant presents one question for our review:
Did the [PCRA] court err in not granting Appellant’s request for
relief under Post Conviction Relief Act petition pursuant to Miller
v. Alabama, 567 U.S. ____, 132 S. Ct. 2455 [2012] [?]
(Appellant’s Brief, at 6) (most capitalization removed).
He maintains that because he was a juvenile at the time of the
murder, his sentence should be vacated and his case remanded for
resentencing.1 We disagree.
Our standard of review of a PCRA court’s order is whether the
determination of the court is supported by the evidence of record and is free
of legal error. See Commonwealth v. Carter, 21 A.3d 680, 682 (Pa.
Super. 2011). For a question of law our scope of review is plenary and our
standard of review is de novo. See Commonwealth v. Jackson, 30 A.3d
516, 518 (Pa. Super. 2011), appeal denied, 47 A.3d 845 (Pa. 2012).
Preliminarily, Appellant’s petition is untimely on its face. 2 Appellant
does not expressly plead and prove a statutory exception to the time bar.
____________________________________________
1
Appellant was born on April 4, 1953. (See Docket, CP-51-Cr-1214232-
1970, at 1). On the day of the murder he was seventeen years, six months,
and six days old.
2
Appellant filed the instant petition on July 17, 2012. This is his fifth
petition for collateral relief. The conviction became final no later than
January 6, 1975, after the time for seeking discretionary review in the
United States Supreme Court had passed. See Wilkins v. United States,
441 U.S. 468 (1979) (petitions for certiorari untimely unless filed within
thirty days, pursuant to then U.S.Sup.Ct.R. 22 (effective July 1, 1954,
(Footnote Continued Next Page)
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(See Appellant’s Brief, at 7, see also Commonwealth’s Brief, at 8).
However, we construe his argument liberally as a claim that he is entitled to
the benefit of a newly recognized constitutional right under Miller, supra.See 42 Pa.C.S.A. § 9545(b)(1)(iii).
Miller held that “the Eighth Amendment forbids a sentencing scheme
that mandates life in prison without possibility of parole for juvenile
offenders[.]” Miller, supra at 132 S. Ct. 2469. However, our Supreme
Court has held that Miller does not apply retroactively. See
Commonwealth v. Cunningham, 81 A.3d 1, 11 (Pa. 2013), cert. denied,
134 S. Ct. 2724 (2014). Appellant argues that, notwithstanding
Cunningham, the holding in Miller is a substantive rule which applies
retroactively to his case. (See Appellant’s Brief, at unnumbered page 9).
We disagree. Cunningham is controlling precedent.3
Order affirmed.
_______________________
(Footnote Continued)
through June 30, 1980; now replaced by U.S.Sup.Ct.R. 13, which provides
for a ninety-day period)); see also 42 Pa.C.S.A. § 9545(b)(3).
3
“This Court is bound by existing precedent under the doctrine of stare
decisis and continues to follow controlling precedent as long as the decision
has not been overturned by our Supreme Court.” Commonwealth v.
Reed, 107 A.3d 137, 143 (Pa. Super. 2014) (citing Commonwealth v.
Slocum, 86 A.3d 272, 278 n.9 (Pa. Super. 2014).
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J-S70012-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2015
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