J-S13002-15
2015 PA Super 74
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JEFFREY CRISTINA,
Appellee No. 601 WDA 2013
Appeal from the PCRA Order Entered March 20, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s):
CP-02-CR-0001478-1976
CP-02-CR-0002462-1976
CP-02-CR-0002464-1976
BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.
OPINION BY BENDER, P.J.E.: FILED APRIL 14, 2015
The Commonwealth appeals from the PCRA1 court’s order granting
Jeffrey Cristina a new sentencing hearing. Because the PCRA court lacked
jurisdiction to entertain Cristina’s untimely PCRA petition, we reverse.
In 1976, Cristina was convicted by a jury of second degree murder for
the killing of Frank Slazinski during a home invasion. Cristina, a juvenile
when the homicide occurred, was sentenced to life in prison without the
possibility of parole (LWOP) on March 29, 1977. On October 5, 1978, our
Supreme Court affirmed his judgment of sentence. Commonwealth v.
Cristina, 391 A.2d 1307 (Pa. 1978). The Supreme Court of the United
____________________________________________
1
Post Conviction Relief Act, 42 Pa.C.S. §§ 9541–9546.
J-S13002-15
States subsequently denied his Petition for Writ of Certiorari on February 21,
1979. Cristina v. Pennsylvania, 440 U.S. 925 (1979) (table).
On March 15, 1984, Cristina filed a counseled petition under the Post
Conviction Hearing Act (PCHA), the statutory predecessor of the PCRA.2
Cristina’s PCHA petition was denied by order of the PCHA court on April 3,
1985. This Court affirmed that order on May 12, 1986, and our Supreme
Court denied Cristina’s subsequent petition for allowance of appeal on
January 7, 1987. Commonwealth v. Cristina, 512 A.2d 1288 (Pa. Super.
1986) (unpublished memorandum), appeal denied, 521 A.2d 931 (Pa. 1987)
(table).
Cristina filed his second post-conviction petition for collateral relief on
June 16, 2010. Counsel was appointed and filed an amended PCRA petition
on September 14, 2011. Following a hearing, Cristina’s amended petition
was denied by order of the PCRA court dated October 28, 2011. Cristina did
not appeal from that order.
Cristina filed his third post-conviction petition for collateral relief, the
subject of the instant appeal, on July 27, 2012, 32 days after the United
States Supreme Court’s decision in Miller v. Alabama, 132 S.Ct. 2455,
2469 (2012) (holding that “the Eighth Amendment forbids a sentencing
scheme that mandates life in prison without possibility of parole for juvenile
____________________________________________
2
The PCHA was repealed in part, modified in part, and renamed the Post
Conviction Relief Act, effective April 13, 1988.
-2-
J-S13002-15
offenders”). On August 14, 2012, current PCRA counsel was appointed. He
filed an amended PCRA petition (hereinafter “the Petition”) on Cristina’s
behalf on December 3, 2012, alleging that, under the rubric of Miller,
Cristina’s LWOP sentence constituted cruel and unusual punishment under
the 8th Amendment. By order dated March 20, 2013, the PCRA court
granted the Petition and set a date for resentencing Cristina. The
Commonwealth then timely filed the instant appeal, as well as a timely
Pa.R.A.P. 1925(b) statement. Subsequently, the PCRA court issued its Rule
1925(a) opinion on September 9, 2014. Therein, the PCRA court changed
course, recommending that this Court reverse its March 20, 2013 order.
PCRA Court Opinion (PCO), 9/9/14, at 2.
The Commonwealth now presents the following question for our
review:
Whether the PCRA court erred in granting [Cristina] post-
conviction relief in the form of resentencing where the [Petition]
was untimely filed?
Commonwealth’s Brief, at 4.
This Court’s standard of review regarding an order granting or denying
a petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa. Super. 2001). “However, this Court applies a de novo standard of
-3-
J-S13002-15
review to the PCRA court's legal conclusions.” Commonwealth v. Spotz,
18 A.3d 244, 259 (Pa. 2011).
We must begin by addressing the timeliness of the Petition, because
the PCRA time limitations implicate our jurisdiction and may not be altered
or disregarded in order to address the merits of a petition. Commonwealth
v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (stating PCRA time limitations
implicate our jurisdiction and may not be altered or disregarded to address
the merits of the petition); Commonwealth v. Johnson, 803 A.2d 1291,
1294 (Pa. Super. 2002) (holding the Superior Court lacks jurisdiction to
reach merits of an appeal from an untimely PCRA petition). Under the PCRA,
any petition for post-conviction relief, including a second or subsequent one,
must be filed within one year of the date the judgment of sentence becomes
final, unless one of the exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-
(iii) applies. That section states, in relevant part:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition
alleges and the petitioner proves that:
(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
-4-
J-S13002-15
(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). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, it is undisputed that the Petition is untimely and, therefore, that
Cristina had to avail himself of at least one of the exceptions to the
timeliness requirements set forth in Section 9545(b)(1)(i)-(iii) in the
Petition. There is also no dispute that Cristina has not alleged the
applicability of either Section 9545(b)(1)(i) or (ii). Accordingly, our inquiry
is focused on whether Cristina can rely on Section 9545(b)(1)(iii) to
overcome the PCRA’s time limitations.
Subsection (iii) of Section 9545[(b)(1)] has two requirements.
First, it provides that 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 provided
in this section. Second, it provides that the right “has been
held” by “that court” to apply retroactively. Thus, a petitioner
must prove that there is a “new” constitutional right and that the
right “has been held” by that court to apply retroactively. The
language “has been held” is in the past tense. These words
mean that the action has already occurred, i.e., “that court” has
already held the new constitutional right to be retroactive to
cases on collateral review. By employing the past tense in
writing this provision, the legislature clearly intended that the
right was already recognized at the time the petition was filed.
-5-
J-S13002-15
Commonwealth v. Copenhefer, 941 A.2d 646, 649–50 (Pa. 2007)
(quoting Commonwealth v. Abdul–Salaam, 812 A.2d 497, 501 (Pa.
2002)).
The Commonwealth argues that the United States Supreme Court’s
decision in Miller, the case relied upon by Cristina to invoke Section
9545(b)(1)(iii), has not been “held by that court to apply retroactively.” 42
Pa.C.S. § 9545(b)(iii). Accordingly, the Commonwealth contends that the
PCRA court lacked jurisdiction to entertain the Petition. Despite entering an
order granting Cristina’s Petition, the PCRA court now agrees with the
Commonwealth’s position in light of our Supreme Court’s decision in
Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), cert. denied,
Cunningham v. Pennsylvania, 134 S.Ct. 2724 (2014). PCO, 9/9/14, at 2.
In Cunningham, our Supreme Court held that, “applying settled
principles of appellate review, nothing in [Cunningham]’s arguments
persuades us that Miller's proscription of the imposition of mandatory life-
without-parole sentences upon offenders under the age of eighteen at the
time their crimes were committed must be extended to those whose
judgments of sentence were final as of the time of Miller's announcement.”
Cunningham, 81 A.3d at 11. Moreover, the Cunningham Court
determined that “the Miller majority did not specifically address the
question of whether its holding applies to judgments of sentence for
prisoners, … which already were final as of the time of the Miller decision.”
Id. at 4.
-6-
J-S13002-15
Notably, however, the Cunningham decision addressed claims of
Miller’s retroactivity as presented by Cunningham. As the Cunningham
Court acknowledged,
Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d
334 (1989) (plurality), delineated a general rule of non-
retroactivity for new procedural, constitutional rules announced
by the Court, ... subject to two narrow exceptions.... [T]he
exceptions extend to “rules prohibiting a certain category of
punishment for a class of defendants because of their status or
offense,” and “watershed rules of criminal procedure implicating
the fundamental fairness and accuracy of the criminal
proceeding.” More recently, in Schriro v. Summerlin, 542 U.S.
348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), the High Court
appears to have merged the first Teague exception with the
principle that new substantive rules generally apply retroactively.
Cunningham, 81 A.3d at 4-5 (internal citations omitted).
The Cunningham Court clearly held that “the first Teague exception
does not apply to the Miller rule.” Id. at 10. However, as to the second
Teague exception, the Cunningham Court stated that “[Cunningham] has
not developed his arguments in such terms.” Id. The Court went on to
admit that “given the high importance attached by the Miller majority to the
new rule which it discerned, it seems possible that some Justices of the
United States Supreme Court may find the rule to be of the watershed
variety.” Id. Nonetheless, the Cunningham Court expressed doubt
regarding whether a majority of the High Court would apply the second
Teague exception to Miller. Id. Whether our Supreme Court’s prediction
will be accurate remains to be seen; however, that prediction is obviously
-7-
J-S13002-15
dicta, because Cunningham had not argued the applicability of that
exception.
Accordingly, while it may be convenient shorthand to state that
Cunningham held that the rule in Miller does not apply retroactively, that
is not completely accurate. Cunningham can only be read for the
propositions that 1) the Miller Court did not, itself, give retroactive effect to
the new rule it announced, and 2) Miller is not otherwise retroactive under
the first Teague exception. Whether Miller is retroactive under the second
Teague exception, or some other theory,3 has not yet been addressed by
our Supreme Court.
Nevertheless, in the wake of Cunningham, it is clear that neither the
United States Supreme Court, nor the Pennsylvania Supreme Court, has held
that the rule in Miller applies retroactively. Accordingly, we are constrained
to agree with the Commonwealth that Cristina cannot rely on Miller to
establish the exception set forth in 42 Pa.C.S. § 9545(b)(1)(iii). As such,
the PCRA court lacked jurisdiction to entertain the Petition, and Cristina’s
LWOP sentence must remain in effect.
Cristina argues, in the alternative, that because he filed the Petition
after Miller, but before Cunningham, we should remand to the PCRA court
____________________________________________
3
In his concurring opinion in Cunningham, then Chief Justice Castille
offered several “thoughts upon the prospects of other methods of remedying
the seeming inequity arising in the post-Miller landscape.” Cunningham,
81 A.3d at 14 (Castille, C.J., concurring).
-8-
J-S13002-15
to afford him the opportunity to amend the Petition so as to construe his
invocation of Section 9545(b)(1)(iii) in light of the “current legal
landscape[.]” Appellant’s Brief, at 15. Ostensibly, Cristina would amend his
petition to raise the retroactivity questions left unaddressed in
Cunningham, as we discussed supra. However, no such modification could
overcome the obstacle presented by Section 9545(b)(1)(iii). Because the
United States Supreme Court has never expressly recognized Miller to apply
retroactively, Cristina cannot avail himself of that exception to the PCRA’s
time-bar. The time-bar is jurisdictional in nature and, thus, the PCRA court
lacks jurisdiction to entertain the Petition, let alone any amendment thereto.
See Commonwealth v. Seskey, 86 A.3d 237 (Pa. Super. 2014), appeal
denied, 101 A.3d 103 (Pa. 2014).4 Accordingly, we deny Cristina’s remand
request.
____________________________________________
4
In Seskey, this Court considered the appellant’s attempts to give
retroactive effect to Miller under multiple legal theories not settled by the
Cunningham decision, including some of the theories suggested by former
Chief Justice Castille in his concurring opinion in Cunningham. The Seskey
Court held:
While these arguments someday may require consideration by
our courts, today cannot be that day. Before a court may
address [the a]ppellant's arguments, or similar contentions, that
court must have jurisdiction. We cannot manufacture
jurisdiction based upon the substantive claims raised by the
parties. Presently, we are confined by the express terms of
subsection 9545(b)(1)(iii) and our Supreme Court's decision in
Cunningham. Combined, those two elements require us to
conclude that we lack jurisdiction. No substantive claim can
overcome this conclusion.
(Footnote Continued Next Page)
-9-
J-S13002-15
Order reversed. Jurisdiction relinquished.
Judge Stabile joins this opinion.
Judge Mundy files a concurring statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/2015
_______________________
(Footnote Continued)
Seskey, 86 A.3d at 243 (emphasis added).
- 10 -