J-S26040-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 JUAN MATOS                               :
                                          :
                     Appellant            :   No. 2367 EDA 2018

             Appeal from the PCRA Order Entered July 13, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0301811-1986


BEFORE:    PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                           FILED MAY 29, 2019

      Juan Matos (Matos) appeals from the order of the Court of Common

Pleas of Philadelphia County (PCRA court) dismissing his petition filed pursuant

to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.         After

review, we affirm.

      In 1988, Matos was sentenced to life imprisonment after being found

guilty by a jury of, among other offenses, First Degree Murder. This Court

subsequently affirmed the judgment of sentence and our Supreme Court

denied allowance of appeal. Matos filed his first PCRA petition in 1996, which

was dismissed by the PCRA court and we affirmed. See Commonwealth v.

Matos, 747 A.2d 416 (Pa. Super. 1999), appeal denied, 749 A.2d 468 (Pa.

2000).




____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       On August 6, 2012, Matos filed a PCRA petition based on the United

States Supreme Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012),

decided June 25, 2012 (holding mandatory life imprisonment without parole

for those under the age of 18 at the time of their crimes violated the Eighth

Amendment), even though he was 24 years old at the time of his offense. The

PCRA Court appointed counsel. On August 8, 2012, the PCRA court sent a

notice of intent to dismiss the PCRA petition pursuant to Pa.R.Crim.P. 907 and

dismissed the petition on November 8, 2012.

       On June 13, 2016, Matos filed his third PCRA petition, the one on appeal,

this time relying on the United States Supreme Court’s decision in

Montgomery v. Louisiana, 136 S. Ct. 718 (2016). In Montgomery, the

Court held that Miller established a new substantive right that must be

applied retroactively in cases on state collateral review. See id. at 736.

       On April 24, 2018, the PCRA court issued a notice of its intent to dismiss

Matos’s petition as untimely. After Matos did not respond, the PCRA court

dismissed the petition.       Matos appealed, claiming (1) his petition qualified

under the new constitutional rule for timeliness, and (2) the PCRA court should

have granted him an evidentiary hearing and appointed counsel.1



____________________________________________


1“Our standard of review for issues arising from the denial of PCRA relief is
well-settled. We must determine whether the PCRA court’s ruling is supported
by the record and free of legal error.” Commonwealth v. Presley, 193 A.3d
436, 442 (Pa. Super. 2018) (citation omitted).


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      To address Matos’s first issue, we must determine whether his PCRA

petition would qualify under one of the exceptions to the PCRA’s timeliness

requirements.      “The timeliness of a [PCRA] petition is jurisdictional.”

Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). “A

PCRA petition, including a second and subsequent petition, shall be filed within

one   year    of   the   date   the   underlying   judgment     becomes        final.”

Commonwealth v. Graves, 197 A.3d 1182, 1185 (Pa. Super. 2018) (citation

omitted).    “[A] judgment 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).

      There are three limited exceptions to the PCRA’s one-year time

limitation set forth in Section 9545:

      (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.




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42 Pa.C.S. § 9545(b)(1)(i)-(iii). A PCRA petition seeking to invoke any one of

these statutory exceptions must “be filed within 60 days of the date the claims

could have been presented.” 42 Pa.C.S. § 9545(b)(2).2

       Matos is seeking relief based on the United States Supreme Court’s

decision in Montgomery as the basis for his attempt to invoke the new

constitutional rule exception under Section 9545(b)(1)(iii). Because a PCRA

petition had to filed within 60 days of the date of the Montgomery decision,

i.e., January 27, 2016, that means Matos’s PCRA petition needed to be filed

on or before March 25, 2016. Because Matos did not file the instant PCRA

petition until June 13, 2016, we lack jurisdiction to consider the merits of his

claim based on Montgomery.3

       In any event, even if his petition was timely, Matos was 24 years old at

the time of the offense and Miller only applies to those defendants who were


____________________________________________


2 As of December 24, 2018, Section 9545(b)(2) states that any PCRA petition
invoking a time-bar exception must be filed within one year of the date the
claim first could have been presented. See Act 2018, Oct. 24, P.L. 894, No.
146, § 2, effective in 60 days [Dec. 24, 2018]. The amendment applies only
to claims arising on or after December 24, 2017.

3 Matos also claims in his brief that he invoked the timeliness exception under
Section 9545(b)(1)(iii) in his PCRA petition by relying on Alleyne v. United
States, 570 U.S. 99 (2013) (holding any fact that increases mandatory
minimum sentence for a crime is considered an element of the crime for fact-
finder to find beyond reasonable doubt). However, our Supreme Court has
held that Alleyne does not apply retroactively to PCRA proceedings. See
Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016).




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under the age of 18 at the time of their crimes.        This Court has rejected

attempts by PCRA petitioners who attempt to extend the Miller application to

those whose crimes were committed beyond their 18th birthday.                See

Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016) (holding that

Miller did not apply to PCRA petitioner who was 19 at time of his offense).

       Last, Matos also claims that the PCRA court erred in denying him an

evidentiary hearing or appointed PCRA counsel.4 Because this petition was

not his first, there was no right to counsel. As his petition is clearly untimely,

the PCRA court did not abuse its discretion in declining to hold an evidentiary

hearing on Matos’s serial PCRA petition.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/19




____________________________________________


4 “There is no absolute right to an evidentiary hearing on a PCRA petition, and
if the PCRA court can determine from the record that no genuine issues of
material fact exist, then a hearing is not necessary.” Commonwealth v.
Jones, 942 A.2d 903, 906 (Pa. Super. 2008). “[S]uch a decision is within the
discretion of the PCRA court and will not be overturned absent an abuse of
discretion.” Commonwealth v. Mason, 130 A.3d 601, 617 (Pa. 2015).

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