J-S13002-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

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.

MEMORANDUM BY BENDER, P.J.E.:                          FILED MAY 03, 2016

      This case is before us on remand from our Supreme Court.              After

careful review, we affirm the PCRA Court’s order granting relief and remand

for resentencing.

      We previously summarized the relevant factual and procedural history

of this case as follows:

             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 States
      subsequently denied his Petition for Writ of Certiorari on
      February 21, 1979. Cristina v. Pennsylvania, 440 U.S. 925
      (1979) (table).
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            On March 15, 1984, Cristina filed a counseled petition
     under the Post Conviction Hearing Act (PCHA), the statutory
     predecessor of the PCRA. 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     Super. 1986) (unpublished memorandum), appeal denied, 521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 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.

Commonwealth v. Cristina, 114 A.3d 419, 420 (Pa. Super. 2015), appeal

granted, order vacated, No. 183 WAL 2015, 2016 WL 593950 (Pa. filed Feb.

11, 2016) (footnote omitted) (hereinafter, “Cristina”).




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        In Cristina, we reversed the PCRA’s court’s order in light of

Commonwealth v. Cunningham, 622 Pa. 543, 81 A.3d 1 (2013), holding

that:

        [I]n 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, 114 A.3d at 423.

        As we noted in Cristina,

        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, 593 Pa. 382, 930 A.2d
        1264, 1267 (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;

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              (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)-(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).

Cristina, 114 A.3d at 421.

     Following our ruling, Cristina petitioned our Supreme Court for

allowance of appeal. On August 17, 2015, our Supreme Court held Cristina’s

petition pending the outcome of Montgomery v. Louisiana, 136 S.Ct. 718

(2016). Montgomery was decided on January 25, 2016. In Montgomery,

the Supreme Court of the United States held that Miller announced a new

substantive constitutional rule that must be applied retroactively on state

collateral review. Montgomery, 136 S. Ct. at 736.

     Consequently, by order dated February 11, 2016, our Supreme Court

simultaneously granted Cristina’s petition for allowance of appeal and

reversed Cristina. That order stated, in pertinent part:

     AND NOW, this 11th day of February, 2016, The Petition for
     Allowance of Appeal is GRANTED on the issue of whether
     Petitioner’s sentence violates the prohibition against mandatory
     life sentences for juvenile offenders announced by the Supreme
     Court of the United States in Miller v. Alabama, 567 U.S. ___,
     132 S. Ct. 2455 (2012). As a result of the recent holding by that
     Court that Miller must be applied retroactively by the States,

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      see Montgomery v. Louisiana, 2016 WL 280758 (U.S. Jan.
      25, 2016), the Superior Court’s order is VACATED, and the case
      is REMANDED for further proceedings consistent with
      Montgomery.

      To the extent necessary, leave is to be granted to amend the
      post-conviction petition to assert the jurisdictional provision of
      the Post Conviction Relief Act extending to the recognition of
      constitutional rights by the Supreme Court of the United States
      which it deems to be retroactive.           See 42 Pa.C.S. §
      9545(b)(1)(iii).

Order, 2/11/16, at 1 (single page).

      Thus, we have been directed by our Supreme Court to reconsider our

decision in Cristina in light of Montgomery. In that regard, we are guided

by this Court’s recent decision in Commonwealth v. Secreti, --- A.3d ---,

2016 PA Super 28, 2016 WL 513341 (Pa. Super. filed February 9, 2016).

Secreti dealt with an identically situated PCRA petitioner in the sense that

he had filed an untimely PCRA petition seeking to invoke Miller to satisfy the

PCRA’s timeliness exception set forth in 42 Pa.C.S. § 9545(b)(1)(iii), but had

filed his petition before the Montgomery ruling.         However, unlike our

decision in Cristina, Montgomery was decided while the decision in

Secreti was still pending. In Secreti, this Court held that “the Miller rule

of law ‘has been held’ to be retroactive for purposes of collateral review as of

the date of the Miller decision on June 25, 2012.            The date of the

Montgomery decision (January 25, 2016, as revised on January 27, 2016)

will control for purposes of the 60–day rule in Section 9545(b)(2).” Secreti,

2016 WL 513341 at *6.      Accordingly, the Secreti Court reversed the PCRA




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court order denying relief, vacated Secreti’s sentence, and remanded for

resentencing. Id.

     Instantly, Cristina is clearly entitled to the retroactive application of

Miller, as was afforded in Secreti and required under Montgomery.

However, unlike what occurred in Secreti, Cristina was in fact granted such

relief in the PCRA court, as his PCRA petition seeking resentencing under

Miller was granted.   Accordingly, we affirm the PCRA court’s order granting

relief under Miller, and remand for resentencing.

     Order    affirmed.     Remanded      for   resentencing.     Jurisdiction

relinquished.

     Judge Mundy joins this memorandum.

     Judge Stabile concurs in the result of this memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2016




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