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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
WILFREDO CABALLERO,
Appellant No. 1894 MDA 2015
Appeal from the Order entered October 20, 2015
In the Court of Common Pleas of York County
Criminal Division, at No(s): CP-67-CR-0000727-1989
BEFORE: GANTMAN, P.J., PANELLA J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 23, 2016
This is an appeal by the Commonwealth of Pennsylvania from the
order granting Wilfredo Caballero (“Caballero”) post-conviction relief
pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
In 1990, Appellant, who was fourteen years old at the time of the
offense, was convicted of first-degree murder as a result of his participation
in the killing of the victim. The trial court sentenced him to life in prison
without the possibility of parole. We affirmed Appellant’s judgment of
sentence, and our Supreme Court denied allowance of appeal. See
Commonwealth v. Caballero, 595 A.2d 189 (Pa. Super. 1991) (Table),
appeal denied, 123 M.D. Allocatur Dkt. 1991. In the decades that followed,
Caballero unsuccessfully sought post-conviction relief by filing five PCRA
petitions.
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Appellant filed the PCRA petition at issue here on August 21, 2012,
asserting that his sentence was illegal pursuant to Miller v. Alabama, 123
S.Ct. 2455 (2012). In response to the PCRA court’s notice of intent to
dismiss without a hearing, Caballero’s counsel asked the PCRA court to await
our Supreme Court’s decision in Commonwealth v. Cunningham, 51 A.3d
178 (Pa. 2012) (order granting petition for allowance of appeal).
On October 30, 2013, our Supreme Court filed its decision in
Cunningham, determining that Miller did not apply retroactively to cases
on collateral appeal. See 81 A.3d 1 (Pa. 2013). On November 12, 2013, the
Commonwealth filed a motion to dismiss based upon the Cunningham
ruling. Caballero’s counsel filed a motion to amend the PCRA petition and a
motion to stay. On November 21, 2013, the PCRA court denied Caballero’s
petition. Caballero filed a timely appeal to this Court. In an unpublished
memorandum, we remanded so that the PCRA court could consider
Caballero’s motion to amend. See Commonwealth v. Caballero, 106 A.3d
169 (Pa. Super. 2014) (Table).
Following remand, the PCRA court granted Caballero’s motion to
amend. Following oral argument on September 20, 2015, the PCRA court
took the matter under advisement. By order entered October 20, 2015, the
PCRA court granted Caballero’s petition by concluding that the inequity
created by the Cunningham decision in the treatment of juvenile offenders
was “not permissible under the more protective standards of the
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Pennsylvania Constitution.” Order, 10/20/15, at 2. The Commonwealth filed
this timely appeal.
While this appeal was pending, Miller was held to be retroactive by
the United States Supreme Court in Montgomery v. Louisiana, 136 S.Ct.
718 (2016). In Commonwealth v. Secreti, 134 A.3d 77 (Pa. Super. 2016),
this Court held that, in light of the Montgomery decision, Miller applied
retroactively to Secreti’s sentence even though it was on collateral appeal,
that he therefore met the pertinent PCRA’s time bar exception, and that he
was entitled to a new sentencing hearing in accordance with the directives of
our Supreme Court’s decision in Commonwealth v. Batts, 66 A.3d 286
(Pa. 2013). Caballero is entitled to the same disposition.
Accordingly, we affirm in part and reverse in part the PCRA order.
Specifically, we reverse that part of the PCRA court’s order granting
Caballero relief under our state constitution. See Commonwealth v.
Kennedy, 604 A.2d 1036, 1038-39 (Pa. Super. 1990) (noting
Pennsylvania’s long standing practice of avoiding constitutional issues when
alternative bases exist). Caballero is entitled to sentencing relief—under
Miller and Montgomery. We vacate his original judgment of sentence.
Caballero has filed an application for remand in light of Montgomery.
Given our disposition, we deny the application as moot.
Order reversed in part and affirmed in part. Judgment of sentence
vacated. Application denied. Case remanded for re-sentencing. Jurisdiction
relinquished.
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President Judge Gantman joins the memorandum.
Judge Jenkins concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/23/2016
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