J-S40034-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILFREDO CABALLERO
Appellant No. 2272 MDA 2013
Appeal from the PCRA Order November 21, 2013
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0000727-1989
BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.
MEMORANDUM BY PANELLA, J.: FILED AUGUST 20, 2014
Appellant, Wilfredo Caballero, appeals from the order dismissing his
review, we remand.
On August 30, 1990, Caballero was convicted of committing first
degree murder as a 14-year-old. The trial court sentenced Caballero to life
imprisonment without the possibility of parole. Caballero concedes that he
has filed previous PCRA petitions, but filed a pro se petition on September 5,
2012, asserting that his sentence was illegal pursuant to the United States
Supreme Court decision in Miller v. Alabama, 132 S.Ct. 2455 (2012). On
October 30, 2013, the Supreme Court of Pennsylvania held that Miller was
not retroactive, and therefore offered no relief to petitioners, such as
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Caballero, whose sentences were already final. See Commonwealth v.
Cunningham, 81 A.3d 1 (Pa. 2013).
Caballero filed a counseled motion to amend his PCRA petition,
presenting additional arguments based upon Cunningham, specifically,
Collateral Relief Petition filed September 5, 2012
does not reference the pending motion to amend.
On appeal, Caballero argues that the PCRA court erred by not
addressing the issues raised in his motion to amend and requests a
remand.1 Under the Rules of Criminal Procedure, Rule 905(A), a PCRA court
any Commonwealth v.
Boyd, 835 A.2d 812, 816 (Pa. Super. 2003) (emphasis in original) (citation
substantial justic Id. (citation omitted). Rule 905(A) has been
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failure to address the issues raised in his motion to amend by failing to
include this argument in his Concise Statement of Matters pursuant to R.A.P.
1925. However, our review of the Concise Statement reveals that Caballero
contained only in his motion to amend. See Concise Statement of Errors
Complained of on Appeal, 1/15/2014, at ¶ 1 (arguing that his sentence
violates Article I, Section 13 of the Pennsylvania Constitution); ¶ 2 (arguing
that Cunningham
his sentence violates the U.S. and Pennsylvania Constitutions); ¶ 3 (arguing
that Cunningham has foreclosed relief pursuant to the PCRA and as a result
requesting habeas corpus relief).
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Id. (citation omitted).
Here, there is no indication that the PCRA court was aware, let alone
remand this case back to the PCRA court to consider and explicitly rule on
Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2014
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