J-S21025-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DWAYNE HILL

Appellant No. 2235 EDA 2014

Appeal from the PCRA Order June 30, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0505682-1990

BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.: FILED APRIL 08, 2015

Dwayne Hill appeals from an order denying his seventh petition for 

relief under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et 

seq. We affirm.

In 1992, Hill was convicted of second degree murder1and was 

sentenced to life imprisonment. On March 10, 1993, this Court affirmed his 

judgment of sentence on direct appeal. Hill did not file a petition for 

allowance of appeal in the Pennsylvania Supreme Court. Between 1994 and 

2010, he filed six unsuccessful petitions for post-conviction relief.2 On July 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 2502(b).

2

Pa.R.A.P. 1925(a) Opinion, p. 1 n.1 (chronology of Hill’s petitions). 
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5, 2012, Hill filed his seventh PCRA petition, the petition presently on 

appeal. On February 19, 2014, the PCRA court sent a Pa.R.Crim.P. 907 

notice of intent to dismiss the petition without a hearing. Hill filed a 

response in opposition to the Rule 907 notice. On July 3, 2014, the PCRA 

court dismissed Hill’s petition. Hill filed a timely notice of appeal. The PCRA 

court filed a Pa.R.A.P. 1925(a) opinion without ordering Hill to file a concise 

statement of matters complained of on appeal.

Acting pro se, Hill raises three issues on appeal: (1) Miller v. 

Alabama, -- U.S. --, 132 S.Ct. 2455 (2012), applies retroactively to his 

case; (2) the PCRA court erred in failing to appoint counsel to represent Hill 

in his seventh PCRA petition; and (3) the PCRA court failed to provide 

adequate notice of its intent to dismiss Hill’s petition under Pa.R.Crim.P. 

907. 

No court has jurisdiction to hear an untimely PCRA petition. 

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010) (citing 

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa.2003)). The PCRA 

provides that a petition, “including a second or subsequent petition, shall be 

filed within one year of the date the judgment becomes final.” 42 Pa.C.S. § 

9545(b)(1); accord Monaco, 996 A.2d at 1079; Commonwealth v. Bretz,

830 A.2d 1273, 1275 (Pa.Super.2003). A judgment is final “at the 

conclusion of direct review, including discretionary review in the Supreme 

Court of the United States and the Supreme Court of Pennsylvania, or at the 

expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3).
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Three exceptions to the PCRA’s time-bar provide for very limited 

circumstances under which a court may excuse the late filing of a PCRA 

petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079. The late 

filing of a petition will be excused if a petitioner alleges and proves:

(i) the failure to raise the claim previously was the 

result of interference by government officials with 

the presentation of the claim in violation of the 

Constitution or laws of this Commonwealth or the 

Constitution or laws of the United States;

(ii) the facts upon which the claim is predicated were 

unknown to the petitioner and could not have been 

ascertained by the exercise of due diligence; or

(iii) the right asserted is a constitutional right that 

was recognized by the Supreme Court of the United 

States or the Supreme Court of Pennsylvania after 

the time period provided in this section and has been 

held by that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii). A petition invoking an exception to the 

PCRA time-bar must “be filed within 60 days of the date the claim could 

have been presented.” 42 Pa.C.S. § 9545(b)(2). 

Hill’s judgment of sentence became final on April 9, 1993, thirty days 

after this Court affirmed on direct appeal. See 42 Pa.C.S. § 9545(b)(3) 

(judgment is final at the conclusion of direct review or at the expiration of 

time for seeking review). He had one year from that date, i.e., April 9, 

1994, to file a timely PCRA petition. See 42 Pa.C.S. § 9545(b)(1). He did 

not file his present PCRA petition until July 5, 2012, nineteen years after the 
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expiration of the PCRA time-bar. Thus, his PCRA petition is untimely on its 

face.

Nor does Hill satisfy any of the three exceptions to the one year 

statute of limitations. 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Hill’s argument that 

Miller applies retroactively to his case under section 9545(b)(1)(iii) is 

wrong. Miller held that “mandatory life without parole for those under the 

age of 18 at the time of their crimes violates the Eighth Amendment’s 

prohibition on ‘cruel and unusual punishments.’” 132 S.Ct. at 2460 

(emphasis added). Hill was twenty years old when he committed murder. 

Thus, Miller is facially inapplicable. Commonwealth v. Cintora, 69 A.3d 

759, 763 (Pa.Super.2013), appeal denied, 81 A.3d 75 (Pa.2013); 

Commonwealth v. Lawson, 90 A.3d 1, 6 (Pa.Super.2014) (“Miller only 

addressed individuals who were juveniles when they committed the crime on 

which their current conviction is based ... ”). Even if Hill had been under 18 

when he committed his crime, our Supreme Court has held that Miller does 

not apply retroactively to life-term offenders, even juvenile offenders, 

proceeding under the PCRA. Commonwealth v. Cunningham, 81 A.3d 1, 

11 (Pa.2013), cert. denied, 134 S.Ct. 2724 (2014).

Hill’s remaining procedural arguments are equally groundless. He first 

argues that the PCRA court should have appointed counsel to represent him 

in his seventh PCRA petition. In a second or subsequent petition for 

collateral relief, the PCRA court should only appoint counsel when an 

unrepresented defendant satisfies the court that (1) he is unable to afford or 
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otherwise procure counsel, and (2) an evidentiary hearing is required under 

Pa.R.Crim.P. 908. See Pa.R.Crim.P. 904(b). An evidentiary hearing is 

unnecessary when there are no disputed factual issues. Commonwealth v. 

Carpenter, 725 A.2d 154, 170 (Pa.1999). Hill fails to raise any genuine 

issues of material fact. He asks “whether he was a juvenile at the time of 

this incident,”3 but he then admits that he was 20 years old at the time of 

the murder. He also asks whether Miller applies retroactively, but this 

obviously presents a question of law, not an issue of fact. Therefore, the 

PCRA court properly declined to appoint counsel for Hill.

Second, Hill argues that the PCRA court’s Rule 907 notice of intent to 

dismiss his petition without a hearing was defective. We disagree. 

Pa.R.Crim.P. 907(a) provides in relevant part:

[T]he judge shall promptly review the [PCRA] 

petition, any answer by the attorney for the 

Commonwealth, and other matters of record relating 

to the defendant’s claim(s). If the judge is satisfied 

from this review that there are no genuine issues 

concerning any material fact and that the defendant 

is not entitled to post-conviction collateral relief, and 

no purpose would be served by any further 

proceedings, the judge shall give notice to the 

parties of the intention to dismiss the petition and 

shall state in the notice the reasons for the 

dismissal. The defendant may respond to the 

proposed dismissal within 20 days of the date of the 

notice ...

____________________________________________

3 Brief For Appellant, p. 5. 
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Id. The PCRA court complied with all requirements of Rule 907. The notice 

of intent stated that the PCRA court intended to dismiss Hill’s petition as 

untimely and gave Hill the requisite 20 days to respond. Hill filed a brief in 

opposition to the Rule 907 notice claiming that his petition was timely. The 

PCRA court ultimately dismissed Hill’s petition several months later for lack 

of timeliness. There were no deficiencies in the Rule 907 notice. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/8/2015