J-A13025-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ANTHONY MACHICOTE,
Appellee No. 1176 WDA 2014
Appeal from the Judgment of Sentence June 24, 2014
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0001958-2003
BEFORE: PANELLA, SHOGAN, and OTT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JUNE 24, 2015
The Commonwealth appeals from the judgment of sentence entered
following the grant of relief pursuant to an untimely second petition filed
under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, by
Anthony Machicote, Appellee. Upon review, we vacate the judgment of
sentence and remand for reinstatement of Appellee’s original sentence.
In an appeal from Appellee’s first PCRA petition, we summarized the
facts of this case as follows:
On November 10, 2003, [Appellee (then age 17)] and
Jeremy Melvin executed their plan to escape from the George
Junior Republic Facility, a housing facility for delinquent and
dependent children [located in Pine Township, Mercer County].
[Appellee] called a night supervisor, Wayne Urey, Jr., to
[Appellee’s] room by faking an illness. Melvin came up behind
Urey and locked him in a choke hold while [Appellee] tied Urey’s
legs with a sheet. Melvin put a sock in Urey’s mouth and tied a
sheet around it. [Appellee] and Melvin stole Urey’s money,
J-A13025-15
keys, and car and fled from the facility. Later that day,
[Appellee] and Melvin confessed the details of the incident to a
school security guard and turned themselves in to police. Urey
suffocated as a result of the incident.
Commonwealth v. Machicote, 965 WDA 2006, 929 A.2d 242 (Pa. Super.
filed May 30, 2007) (unpublished memorandum at 1-2).
Both Appellee and Melvin were charged as adults with criminal
homicide, robbery, and related charges. On November 3, 2004, Appellee
pled guilty to second-degree murder. In exchange for the guilty plea, the
Commonwealth nol prossed the remaining charges. In addition, the
Commonwealth agreed to provide Appellee with a letter indicating that it
would take no position if Appellee filed an application for commutation of
sentence after serving twenty-five years of imprisonment. On January 6,
2005, the trial court sentenced Appellee to serve a term of life
imprisonment. Appellee did not file a direct appeal.
On January 9, 2006, Appellee filed a timely pro se PCRA petition,
which was his first. Appointed counsel then filed an amended PCRA petition,
and the PCRA court denied relief. On May 30, 2007, this Court affirmed the
denial of PCRA relief, and the Pennsylvania Supreme Court denied Appellee’s
petition for allowance of appeal. Commonwealth v. Machicote, 965 WDA
2006, 929 A.2d 242 (Pa. Super. 2007) (unpublished memorandum), appeal
denied, 932 A.2d 1287 (Pa. 2007).
On August 22, 2012, Appellee filed an untimely second PCRA petition,
in which he sought to have his life sentence without parole vacated, and to
-2-
J-A13025-15
be resentenced pursuant to Miller v. Alabama, ___ U.S. ___, 132 S.Ct.
2455 (2012). Disposition of the PCRA petition was continued several times
awaiting a ruling on the applicability of Miller in Pennsylvania. On
September 30, 2013, the PCRA court entered an order granting Appellee’s
request for relief on the grounds that the Miller decision rendered the life
sentence unlawful. The Commonwealth appealed and then withdrew the
appeal. Thereafter, the Commonwealth’s appeal was reinstated, but it was
ultimately dismissed due to failure to file a brief.
Consequently, Appellee was resentenced on June 24, 2014, to a term
of life in prison with parole, with a recommendation that Appellee not be
paroled until his 58th birthday. On July 2, 2014, the Commonwealth filed a
post-sentence motion alleging that the lower court lacked the authority to
resentence Appellee in light of Commonwealth v. Cunningham, 81 A.3d 1
(Pa. 2013). The motion was denied on July 2, 2014. This appeal by the
Commonwealth followed.
The Commonwealth presents the following issues for our review:
1. Did the Sentenc[ing] Court err by imposing a sentence of life
with the possibility of parole upon [Appellee’s] 58th birthday
where the sentence was not based on a sentencing scheme in
place at the time of [Appellee’s] original sentence?
2. Did the Sentenc[ing] Court err by considering the factors set
forth in Miller v. Alabama, 132 S.Ct. 2455 (2012), after
holding that case law interpreting Pa.R.A.P. Rule 2314 requires
that the dismissal of the Commonwealth’s original appeal due to
a procedural defect constrained the Sentence Court from
conducting a resentence hearing in accordance with
Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013)?
-3-
J-A13025-15
3. Did the Sentenc[ing] Court err by imposing a sentence
inconsistent with the Pennsylvania Supreme Court’s ruling in
Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), which
held that Miller is not retroactive, and that juveniles sentenced
prior to Miller were not entitled to a resentencing?
Commonwealth’s Brief at 4.
Before we address the issues raised on appeal, we must first ascertain
the jurisdictional posture of this case, as it appears that this direct appeal
stems from the grant of relief by the PCRA court, which itself lacked
jurisdiction. As noted above, Appellee was sentenced in 2005, but he filed
his second PCRA petition in 2012.
It is undisputed that a PCRA petition must be filed within one year of
the date that the judgment of sentence becomes final. 42 Pa.C.S. §
9545(b)(1). A judgment of sentence “becomes 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). This time
requirement is mandatory and jurisdictional in nature, and no court may
properly disregard or alter the time requirement in order to reach the merits
of the claims raised in a PCRA petition that is filed in an untimely manner.
Commonwealth v. Murray, 753 A.2d 201, 202-203 (Pa. 2000). These
provisions apply to “all PCRA petitions, regardless of the nature of the
individual claims raised therein.” Id. at 202. Our Supreme Court has held
that, “[a]lthough legality of sentence is always subject to review within the
-4-
J-A13025-15
PCRA, claims must still first satisfy the PCRA’s time limits or one of the
exceptions thereto.” Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.
1999). Moreover, we have long stated that jurisdiction cannot be conferred
by mere agreement or silence of the parties where it is otherwise
nonexistent. Commonwealth v. Borrero, 692 A.2d 158, 159 (Pa. Super.
1997).
However, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),
and (iii), is met.1 A petition invoking one of these exceptions must be filed
within sixty days of the date the claim could first have been presented. 42
Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the
____________________________________________
1
The exceptions to the timeliness requirement are:
(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), (ii), and (iii).
-5-
J-A13025-15
PCRA’s one-year filing deadline, “the petitioner must plead and prove
specific facts that demonstrate his claim was raised within the sixty-day time
frame” under section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa. Super. 2001).
Our review of the record reflects that the trial court imposed upon
Appellee a sentence of life imprisonment on January 6, 2005. Accordingly,
Appellee’s judgment of sentence became final on February 7, 2005,2 thirty
days after the trial court imposed the judgment of sentence and Appellee
failed to file a direct appeal with this Court. 42 Pa.C.S. § 9545(b)(3);
Pa.R.A.P. 903(a). In order to be timely, Appellee needed to file his second
PCRA petition within one year of the date that his judgment of sentence
became final. Appellee did not file the PCRA petition that predicated the
instant relief until August 22, 2012. Therefore, Appellee’s second PCRA
petition was patently untimely, and the PCRA court lacked jurisdiction to
consider it.
As previously stated, if a petitioner does not file a timely PCRA
petition, his petition may nevertheless be received under any of the three
limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. §
____________________________________________
2
We note Appellee needed to file his direct appeal with this Court on or
before Monday, February 7, 2005, because February 5, 2005, was a
Saturday. See 1 Pa.C.S. § 1908 (stating that, for computations of time,
whenever the last day of any such period shall fall on Saturday or Sunday,
or a legal holiday, such day shall be omitted from the computation). See
also Pa.R.A.P. 107; Pa.R.A.P. 903, note.
-6-
J-A13025-15
9545(b)(1). If a petitioner asserts one of these exceptions, he must file his
petition within sixty days of the date that the exception could be asserted.
42 Pa.C.S. § 9545(b)(2).
To the extent that Appellee attempted to invoke the third exception to
the PCRA timeliness requirements, i.e., “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. §
9544(b)(1)(iii), with reliance upon the United States Supreme Court’s
decision in Miller, such application fails. In Miller, the United States
Supreme Court held that sentencing a juvenile convicted of a homicide
offense to mandatory life imprisonment without parole violates the Eighth
Amendment’s prohibition to cruel and unusual punishment. Accordingly,
such sentences cannot be handed down unless a judge or jury first considers
mitigating circumstances. Id. at 2475.3
Subsequently, the Pennsylvania Supreme Court determined that Miller
does not apply retroactively to an inmate, convicted as a juvenile, who is
serving a sentence of life imprisonment without the possibility of parole and
____________________________________________
3
We note that on October 15, 2012, effective immediately, the Pennsylvania
Legislature amended 18 Pa.C.S. § 1102(a)(1) (first-degree murder) and (b)
(second-degree murder), to provide sentencing standards for juvenile
offenders convicted of first and second-degree murder after June 24, 2012,
so as to comply with Miller.
-7-
J-A13025-15
who has exhausted his direct appeal rights and is proceeding under the
PCRA. Cunningham, 81 A.3d at 11. Furthermore, we observe that on June
9, 2014, the United States Supreme Court declined to grant certiorari in
Cunningham. Cunningham v. Pennsylvania, ___ U.S. ___, 134 S.Ct.
2724 (2014). Thus, the Pennsylvania Supreme Court’s decision in
Cunningham is final and binding. Accordingly, Miller does not qualify as
an exception to the PCRA time bar.
Consequently, the PCRA court lacked jurisdiction ab initio to entertain
Appellee’s second PCRA petition and to grant relief because Appellee filed
that petition more than one year after his judgment of sentence became
final and failed to prove a statutory timeliness exception. 42 Pa.C.S. §
9545(b)(1). A judgment or decree rendered by a court, which lacks
jurisdiction of the subject matter or of the person, is null and void.
Commonwealth v. Schmotzer, 831 A.2d 689, 695 n.2 (Pa. Super. 2003).
As a result, the PCRA court lacked authority to grant relief.4 Thus, the relief
granted by the PCRA court in its order of September 30, 2013, was done
without authority and is a nullity. Therefore, we are constrained to hold that
the judgment of sentence entered on June 24, 2014, predicated upon the
improper order of the PCRA court, is likewise a nullity. Hence, we vacate the
____________________________________________
4
This is so regardless of the fact that the Commonwealth failed to perfect an
appeal from the order of the PCRA court. See Borrero, 692 A.2d at 159
(reiterating that jurisdiction cannot be conferred by mere agreement or
silence of the parties where it is otherwise nonexistent).
-8-
J-A13025-15
judgment of sentence entered on June 24, 2014, as well as the order of
September 30, 2013, granting PCRA relief. Furthermore, we remand this
matter to the lower court to reinstate the original judgment of sentence
imposed upon Appellee.
Judgment of sentence vacated. Case remanded with instructions.
Jurisdiction relinquished.
Judge Panella joins the Memorandum.
Judge Ott files a Concurring Statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/24/2015
-9-