J-A13025-15
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, J., SHOGAN, J., and OTT, J.
CONCURRING STATEMENT BY OTT, J.: FILED JUNE 24, 2015
I agree with the determination of the Majority that the PCRA court had
no jurisdiction to resentence Machicote, and, accordingly, we are compelled
to vacate the June 24, 2014, judgment of sentence and remand for
reinstatement of his original sentence.
Nevertheless, I write separately to note that, in my opinion,
Machicote’s August 22, 2012, PCRA petition was timely filed, pursuant to the
“new constitutional right” exception to the timeliness requirements, because
his second petition was filed within 60 days of the United States Supreme
Court’s decision in Miller. See 42 Pa.C.S. § 9545(b)(1)(iii). However,
before Machicote was resentenced, the Pennsylvania Supreme Court decided
Cunningham, and held that the United States Supreme Court’s decision in
Miller did not apply retroactively. Therefore, at the time of Machicote’s
resentencing hearing, the trial court had no jurisdiction due to the
intervening change in the law.
Accordingly, I concur.