Com. v. Wilson, M. (judgment order)

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J-S70012-15 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. MICHAEL WILSON, Appellant No. 1469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-12142321970, 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) -2- J-S70012-15 (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[.]” Court has Miller, supra at 132 S. Ct. 2469. held that Miller does not However, our Supreme 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). -3- J-S70012-15 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 12/1/2015 -4-

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