J-S28013-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J-S28013-16



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(unpublished memorandum), appeal denied, 843 A.2d 1237 (Pa. 2004).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(Pa.Super. 2008) (unpublished memorandum), appeal denied 946 A.2d 894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.

                                    -2-
J-S28013-16



      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

                                       -3-
J-S28013-16



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




                                     -4-
J-S28013-16



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,




                                    -5-
J-S28013-16



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




                                    -6-
