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[U] Commonwealth v. Rivers

Superior Court of Pennsylvania

February 13, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JAMES A. RIVERS, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order May 14, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0010624-1986

BEFORE: FORD ELLIOTT, P.J.E., BOWES, and WECHT, JJ.

MEMORANDUM

BOWES, J.

James A. Rivers appeals pro se from the dismissal of his serial post-conviction relief ("PCRA") petition, which the court denied as untimely after it granted counsel's petition to withdraw pursuant to the dictates of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 230 (Pa.Super. 1988) (en banc). We affirm.

A jury found Appellant guilty of first-degree murder on March 18, 1987, after he shot and killed Melvin Hudson on September 26, 1986. At the time of the crime, Appellant was thirty-eight years old. The court imposed the mandatory sentence of life without parole on February 11, 1988. New counsel filed post-trial motions, raising ineffective assistance of counsel claims. In a published decision, this Court affirmed Appellant's judgment of sentence. Commonwealth v. Rivers, 557 A.2d 5 (Pa.Super. 1989). The Pennsylvania Supreme Court denied allowance of appeal. Commonwealth v. Rivers, 567 A.2d 652 (Pa. 1989). Thereafter, Appellant filed a pro se PCRA petition on August 11, 1992. The court appointed counsel, who filed an amended petition and supplements thereto. The PCRA court denied relief on June 18, 1997, and this Court affirmed. Commonwealth v. Rivers, 726 A.2d 415 (Pa.Super. 1998) (unpublished memorandum). Our Supreme Court denied allowance of appeal. Commonwealth v. Rivers, 734 A.2d 861 (Pa. 1999).

Appellant filed the underlying petition on August 23, 2012. Therein, he claimed that the decision in Miller v. Alabama, 132 S.Ct. 2455 (2012), constituted a newly-discovered fact and was a new constitutional rule that applied retroactively to him. The PCRA court appointed counsel. Counsel filed a Turner/Finley no-merit letter and requested to withdraw. The PCRA court issued a Pa.R.Crim.P. 907 notice of dismissal on March 8, 2013, finding the petition untimely, and granted counsel's petition to withdraw. Appellant filed a pro se response, and the court entered a final order on May 16, 2013. This timely appeal ensued. The PCRA court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant complied, and the court authored a Pa.R.A.P. 1925(a) order indicating its reasons for dismissal were contained in its Rule 907 notice. The matter is now ready for our review. Appellant presents two issues for this Court's consideration.

A. Was err[or] committed by the court's failure to determine Post Conviction Relief Act (PCRA) petition[er]'s claim that the ruling in Miller v. Alabama, 567 U.S.; 132 S.Ct. 2455 (2012) has invalidated [the] mandatory sentence without opportunity to apply for parole clause in the Pennsylvania Homicide Statute (Title 18 Pa.C.S.A. §2502) legislatively impacted class as those once convicted of first or second degree murder?
B. Did the PCRA court abuse its discretion by order that granted leave to withdraw, and by its disregard of counsel's ineffective assistance?

Appellant's brief at 4.

Appellant's first issue is controlled by Commonwealth v. Cintora, 69 A.3d 759 (Pa.Super. 2013). The Cintora Court held both that the Miller decision is not a newly-discovered fact and that it does not apply to adult defendants convicted of murder. Since Appellant was not a juvenile at the time he committed homicide, the Miller decision has no effect on his case. Therefore, the PCRA court did not err in finding Appellant's petition untimely.

Appellant in his second claim contends that, because he informed PCRA counsel of sufficient facts to establish a timeliness exception, PCRA counsel performed ineffectively and the PCRA court erred in allowing counsel to withdraw. While Appellant did preserve this issue in his Pa.R.Crim.P. 907 response, the issue fails for the reasons outlined above.

Order affirmed.


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