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Commonwealth v. Miller

Superior Court of Pennsylvania

September 26, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
EUGENE MILLER, Appellant

Submitted August 18, 2014

Page 989

Appeal from the PCRA Order of the Court of Common Pleas, Delaware County, Criminal Division, No(s): CP-23-CR-0004094-2004. Before CRONIN, J.

Eugene Miller, appellant, pro se.

John J. Whelan, Assistant District Attorney, Media and Michelle P. Hutton, Assistant District Attorney, Media, for Commonwealth, appellee.

BEFORE: DONOHUE, J., MUNDY, J., and STABILE, J.

OPINION

Page 990

MUNDY, J.

Appellant, Eugene Miller, appeals pro se from the November 21, 2013 order dismissing his second petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. § § 9541-9546. After careful review, we affirm.

Page 991

We summarize the relevant procedural history of this case as follows. On October 25, 2004, the Commonwealth filed an information charging Appellant with one count each of murder, simple assault, aggravated assault, recklessly endangering another person (REAP), persons not to possess a firearm, possession of a firearm without a license, and possession of an instrument of a crime (PIC).[1] On May 10, 2005, Appellant proceeded to a jury trial. On May 25, 2005, the jury found Appellant guilty of third-degree murder, aggravated assault, possession of a firearm without a license, and PIC. The Commonwealth withdrew the remaining charges. On July 18, 2005, the trial court imposed an aggregate sentence of 27 1/2 to 55 years' imprisonment.[2] Relevant to this appeal, the trial court imposed the mandatory minimum sentence of 25 years' imprisonment pursuant to Section 9714(a)(2). This was based on Appellant's previous convictions in New Jersey. See 42 Pa.C.S.A. § 9714(a)(2) (providing for a minimum sentence of 25 years' imprisonment " [w]here the person had at the time of the commission of the current offense previously been convicted of two or more such crimes of violence arising from separate criminal transactions[]" ).

On July 20, 2005, Appellant filed a timely post-sentence motion, which the trial court denied on December 14, 2005. Appellant filed a timely notice of appeal, and this Court affirmed the judgment of sentence on October 23, 2007. Commonwealth v. Miller, 943 A.2d 318 (Pa. Super. 2007) (unpublished memorandum) (Miller I), appeal denied, 596 Pa. 753, 947 A.2d 736 (Pa. 2008). Our Supreme Court denied Appellant's petition for allowance of appeal on May 8, 2008. Appellant did not file a petition for a writ of certiorari with the United States Supreme Court.

On August 7, 2009, Appellant filed his first PCRA petition. The PCRA court appointed counsel, who filed an application to withdraw along with a " no-merit" letter pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (Pa. 1988), Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (Pa. Super. 1988) ( en banc ), and their progeny. On April 30, 2010, the PCRA court granted PCRA counsel's application to withdraw. On December 14, 2010, the PCRA court issued its notice of intent to dismiss Appellant's PCRA petition without a hearing pursuant to Pennsylvania Rule of Criminal Procedure 907. Appellant did not file a response, and the PCRA court entered an order dismissing Appellant's PCRA petition on February 8, 2011. Appellant filed a timely notice of appeal and this court affirmed the PCRA court's order on May 4, 2012. Commonwealth v. Miller, 50 A.3d 233 (Pa. Super. 2012) (unpublished memorandum). Appellant did not file a petition for allowance of appeal with our Supreme Court.

On August 8, 2013, Appellant filed his second PCRA petition. On October 1, 2013, the PCRA court issued its Rule 907 notice, concluding that Appellant's petition was untimely filed, and Appellant had not proven an exception to the time-bar. Appellant did not file a response. On November 21, 2013, the PCRA court entered an order dismissing Appellant's second

Page 992

PCRA petition. On December 16, 2013, Appellant filed a timely ...


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