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[U] Commonwealth v. McMillion

Superior Court of Pennsylvania

October 21, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
BERNARD McMILLION, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order entered on April 22, 2013 in the Court of Common Pleas of Dauphin County, Criminal Division, No(s): CP-22-CR-0003733-2010; CP-22-CR-0003760-2010

Joseph D. Seletyn, Esq.

BEFORE: PANELLA, MUNDY and MUSMANNO, JJ.

MEMORANDUM

MUSMANNO, J.

Bernard McMillion ("McMillion") appeals from the Order denying his Petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA").[1]We affirm.

On October 2, 2011, McMillion pled guilty, pursuant to a negotiated plea agreement, to the charges of theft by unlawful taking, criminal conspiracy, flight to avoid apprehension, resisting arrest, tampering with or fabricating physical evidence, false identification to law enforcement authorities, possession with the intent to deliver a controlled substance and possession of drug paraphernalia.[2] The trial court sentenced McMillion to an aggregate prison term of one to two years, to be served concurrently with a sentence imposed in a federal case.[3] On February 2, 2012, McMillion was given 433 days of credit for time served in his state proceeding. As a result of the credit for time served, McMillion's maximum sentence in the instant case expired on July 29, 2012. In August 2012, McMillion began serving his federal sentence.

On October 22, 2012, McMillion filed a pro se PCRA Petition. The PCRA court appointed counsel, after which McMillion filed a counseled amended Petition. After appropriate Notice, the PCRA court dismissed McMillion's

Petition without a hearing, concluding that the claim was "untimely raised." PCRA Court Opinion, 4/2/13, at 3. Thereafter, McMillion filed the instant timely appeal, and a Concise Statement of matters complained of on appeal, in accordance with Pa.R.A.P. 1925(b).

McMillion presents the following claims for our review:
1. Whether [McMillion] was serving a sentence at the time his PCRA was filed?
2. Whether [McMillion's] constitutional rights were violated when a negotiated plea agreement was not honored?
3. Whether [McMillion's] guilty plea was unlawfully induced as the result of ...

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