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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JONATHAN HERNANDEZ,
Appellant No. 1855 EDA 2015
Appeal from the PCRA Order June 5, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1010912-1997
BEFORE: BOWES, LAZARUS AND PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED MAY 11, 2016
Jonathan Hernandez appeals the June 5, 2015 PCRA court order
denying his second petition as untimely. We reverse and remand for
resentencing consistent with the dictates of our Supreme Court’s decision in
Commonwealth v. Batts, 66 A.2d 286 (Pa. 2013).
On August 5, 1999, a jury convicted Appellant of two counts of murder
and aggravated assault and one count each of criminal conspiracy, recklessly
endangering another person, and possessing an instrument of crime. When
Appellant was sixteen years old, he and four cohorts conspired to kill a rival
drug dealer. Appellant and three others carried out the ambush, which killed
the intended target and a pregnant bystander. The trial court imposed
consecutive terms of life imprisonment for the two murders and a
* Retired Senior Judge assigned to the Superior Court.
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consecutive term of eleven to thirty years imprisonment for the remaining
offenses. We affirmed the judgment of sentence on March 6, 2003, and our
Supreme Court denied allowance of appeal on February 17, 2004. See
Commonwealth v. Hernandez, 823 A.2d 1024 (Pa.Super. 2003)
(unpublished memorandum), appeal denied, 843 A.2d 1237 (Pa. 2004).
Appellant filed his first PCRA petition during February of 2005. After
appointed counsel filed an amended petition and the PCRA court issued
notice pursuant to Pa.R.Crim.P 907, the petition was denied without a
hearing. We affirmed. Commonwealth v. Hernandez, 959 A.2d 461
(Pa.Super. 2008) (unpublished memorandum), appeal denied 946 A.2d 894
(Pa. 2009).
On July 8, 2010, Appellant filed the instant PCRA petition, and on July
27, 2012, he filed a supplemental petition invoking the United States
Supreme Court’s June 25, 2012 decision in Miller v. Alabama, 567 U.S.__,
132 S.Ct. 2455 (2012), that it is unconstitutional to sentence a juvenile
homicide offender to an automatic sentence of life without parole. Relying
upon then existing precedent, the PCRA court concluded that Appellant’s
Miller claim failed because the Supreme Court did not hold Miller to apply
retroactively. See Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013)
(denying retroactive application), overruled by Montgomery v. Louisiana,
136 S. Ct. 718 (2016). Accordingly, the PCRA court denied the petition as
time barred. This timely appeal ensued.
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Appellant presents one question for our review: “Does the United
States Supreme Court’s decision in Miller v. Alabama, 132 S.Ct. 2455
(2012) apply retroactively to case[s] on collateral review[.]” Appellant’s
brief at 2. Herein, the PCRA court noted that Appellant invoked Miller
within sixty days of the date that the Supreme Court issued its decision but
concluded that Appellant’s petition was time barred because that case was
held not to apply retroactively. The PCRA court’s legal conclusion is
erroneous in light of now-prevailing authority.
Preliminarily, we note our standard and scope of review. “An appellate
court reviews the PCRA court's findings of fact to determine whether they
are supported by the record, and reviews its conclusions of law to determine
whether they are free from legal error.” Commonwealth v. Spotz, 84 A.3d
294, 311 (Pa. 2014). “The scope of review is limited to the findings of the
PCRA court and the evidence of record, viewed in the light most favorable to
the prevailing party at the trial level.” Id.
The time limitations imposed by the PCRA implicate our jurisdiction
and they may not be altered or disregarded in order to address the merits of
a petition. See Commonwealth v. Monaco, 996 A.2d 1076, 1079
(Pa.Super. 2010) (“Pennsylvania law makes clear no court has jurisdiction to
hear an untimely PCRA petition.”). Appellant’s judgment of sentence
became final on May 17, 2004, upon the expiration of the ninety-day period
to petition the U.S. Supreme Court for a writ of certiorari following the denial
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of allowance of appeal. Accordingly, in order to comply with the time
requirements, Appellant’s petition had to be filed by May 17, 2005.
Appellant filed the instant petition on July 8, 2010; thus, unless one of the
exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) apply, the petition is
barred as untimely.
Section 9545 provides the following three exceptions that allow for
review of an untimely PCRA petition: (1) petitioner’s inability to raise a claim
as a result of governmental interference; (2) the discovery of previously
unknown facts that could not have been ascertained by the exercise of due
diligence; and (3) a newly-recognized constitutional right. 42 Pa.C.S. §
9545 (b)(1)(i)-(iii). To invoke an exception, the petitioner must plead it and
satisfy the burden of proof. Commonwealth v. Beasley, 741 A.2d 1258,
1261-62 (Pa. 1999). In addition, any exception must be raised within sixty
days of the date the claim could have been presented. 42 Pa.C.S. §
9545(b)(2).
Instantly, Appellant invoked the newly-recognized constitutional right
outlined in Miller as a basis to circumvent the PCRA time bar under § 9545
(b)(1)(iii). As noted, supra, when the PCRA court addressed Appellant’s
claim, Pennsylvania’s High Court had determined that Miller was not
retroactive. See Cunningham, supra overruled by Montgomery, supra.
However, while this appeal was pending, the United States Supreme Court
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held in Montgomery, supra, that state courts are required to apply Miller
retroactively.
In Commonwealth v. Secreti, 2016 WL 513341, this Court
addressed the application of Montgomery to PCRA appeals that had
invoked the retroactivity of Miller as the basis for relief. We concluded that
Miller applied retroactively to the date of that decision. Secreti, supra at
*5 (“we now hold that the best resolution of this dilemma is to interpret
Montgomery as making retroactivity under Miller effective as of the date
of the Miller decision”). Accordingly, Miller can be relied upon to establish
an exception to the PCRA time-bar under § 9545(b)(1)(iii) so long as it was
invoked within sixty days of the date that case was filed. See 42 Pa.C.S. §
9545(b)(2). As Appellant’s petition asserted Miller's substantive law within
sixty days of the date that Miller was decided, he satisfied the statutory
exception to the PCRA time-requirement that is outlined in § 9545 (b)(1)(iii).
In addition, we find Appellant’s argument meritorious. In Secreti,
supra, we reiterated that the imposition of automatic life imprisonment
without parole for a defendant committing first-degree murder as a juvenile
was unconstitutional under Miller. Thus, consistent with the dictates of our
Supreme Court’s decision in Commonwealth v. Batts, supra, we found
that Secreti, a juvenile sentenced to life for homicide, was entitled to a new
sentencing. Accordingly, we reversed the order denying PCRA relief,
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vacated the judgment of sentence, and remanded the case for a new
sentencing hearing.
Presently, Appellant was a juvenile when he participated in the
murders. Thus, the imposition of automatic terms of life imprisonment
without the possibility of parole was unconstitutional under Miller, and he is
entitled to a new sentencing hearing.
Order reversed. Judgment of sentence vacated and the case
remanded for resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2016
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