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[U] Commonwealth v. McClellan

Superior Court of Pennsylvania

February 18, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
WILLIE MCCLELLAN Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order July 2, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0208241-1998

BEFORE: FORD ELLIOTT, P.J.E., BOWES, J., and OTT, J.

MEMORANDUM

OTT, J.

Willie McClellan appeals, pro se, from the order entered July 2, 2013, in the Philadelphia County Court of Common Pleas denying him relief on two petitions: (1) a petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq., and (2) a petition for writ of habeas corpus construed by the PCRA court to be another PCRA petition. McClellan seeks relief from the judgment of sentence of life imprisonment, imposed on April 9, 2001, following his guilty plea to two counts of first degree murder and one count of possession of an instrument of crime (PIC).[1] On appeal, McClellan argues the PCRA court erred (1) in determining that the decision in Miller v. Alabama, __U.S. __, 132 S.Ct. 2455 (2012), was not applicable to overcome the untimeliness of his PCRA petition, and (2) in treating his petition for writ of habeas corpus as a PCRA petition. For the reasons set forth below, we affirm.

The facts and procedural history of this case were aptly summarized by a panel of this Court affirming the denial of his first PCRA petition:

The allegations against McClellan involved disturbing conduct. On January 7, 1998, McClellan stuffed socks in the mouths of his eight year old daughter, Patrice, and five year old son, Willie, then brutally and repeatedly stabbed them to death with a butcher knife while they lay in their beds. McClellan was subsequently charged with two counts of murder and one count of possession of an instrument of crime ("PIC").
On June 8, 1999, following a day and a half of trial before a death penalty qualified jury, McClellan changed his plea from not guilty to guilty of two counts of first-degree murder and one count of PIC. In exchange for his plea, the prosecution withdrew its request for the death penalty. McClellan waived a pre-sentence investigation and was immediately sentenced to two concurrent life sentences for the murder charges and two and one-half (2 ½) to five (5) years on the PIC charge.
Surprisingly, just a few days later, on June 15, 1999, counsel filed a motion to withdraw McClellan's guilty plea and also requested leave to withdraw as counsel. Counsel was permitted to withdraw and new counsel was appointed to represent McClellan. On June 17, 1999, the trial court vacated its previously imposed sentence pending disposition of the motion to withdraw the guilty plea. Subsequently, on October 18, 1999, a hearing was held. On November 24, 1999, the trial court denied McClellan's motion to withdraw his guilty plea and resentenced him, changing the sentence to two consecutive terms of life imprisonment and a concurrent term of one and one-half (1½) to three (3) year sentence on the PIC charge. N.T. Sentencing, 11/24/1999, at 20-21.
On December 3, 1999, McClellan filed a direct appeal from the judgment of sentence, which this Court affirmed in a memorandum opinion filed on February 23, 2001. Commonwealth v. McClellan, [776 A.2d 1007] 148 EDA 2000 (Pa.Super. 2001) (per curiam). McClellan did not seek an allowance of appeal from the Supreme Court. On October 12, 2001, McClellan filed a PCRA petition[.]

Commonwealth v. McClellan, 876 A.2d 466 [57 EDA 2204] (Pa.Super. 2005) (unpublished memorandum at 1-3) (footnotes omitted), appeal denied, 897 A.2d 456 (Pa. 2006).

The PCRA court subsequently dismissed McClellan's petition without conducting an evidentiary hearing. McClellan filed an appeal to this Court, which affirmed the order denying relief, and the Pennsylvania Supreme Court subsequently denied his petition for allowance of appeal. See id.

On August 10, 2012, McClellan filed the instant, pro se PCRA petition, his second, asserting that his mandatory sentence of life imprisonment is unconstitutional pursuant to the United States Supreme Court's decision in Miller, supra. While that petition was pending, on April 29, 2013, McClellan also filed a petition for writ of habeas corpus. The PCRA court construed McClellan's petition for writ of habeas corpus as another PCRA petition. Accordingly, on May 29 and June 4, 2013, the court issued notice to McClellan of its intent to dismiss both petitions without first conducting an evidentiary hearing pursuant to Pa.R.Crim.P. 907. On June 18, 2013, McClellan filed a reponse to the court's Rule 907 notice. Thereafter, on July 2, 2013, the PCRA court entered an order dismissing both petitions as untimely filed. This appeal follows.

First, McClellan challenges the PCRA court's finding that the decision in Miller is inapplicable to the facts of his case. Specifically, McClellan argues that the Miller decision is applicable to him pursuant to the doctrine of equal protection, and, ...


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