J-S24033-20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                    Appellee            :
                                        :
          v.                            :
                                        :
FREDDY MCCUTCHEN,                       :
                                        :
                    Appellant           :    No. 1323 EDA 2019

        Appeal from the Judgment of Sentence Entered April 8, 2019
           in the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0701591-1971

BEFORE:        BENDER, P.J.E., STABILE, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                      FILED JUNE 22, 2020

     Freddy McCutchen (Appellant) appeals pro se from the April 8, 2019

judgment of sentence of 40 years to life imprisonment imposed following a

resentencing hearing pursuant to Miller v. Alabama, 567 U.S. 460 (2012).1

Upon review, we conclude that the PCRA court lacked jurisdiction to vacate

Appellant’s original judgment of sentence, and therefore quash.

     A prior panel of this Court provided the following background.

     This case has been the subject of four prior published decisions.
     In 1973, a jury initially found Appellant guilty of killing a six-
     year[-]old boy after sodomizing the victim [(Victim)]. The facts
     of the brutal slaying are unnecessary to our disposition and are



1 In Miller, the United States Supreme Court held that a “mandatory
[sentence of] life without parole [(LWOP)] for those under the age of 18 at
the time of their crimes violates the Eighth Amendment’s prohibition on cruel
and unusual punishments.” 567 U.S. at 465 (internal quotation marks
omitted).

*Retired Senior Judge assigned to the Superior Court.
J-S24033-20


        set forth in  our  Supreme    Court’s   1982    decision.
        Commonwealth v. McCutchen, 454 A.2d 547 (Pa. 1982).[2]

        At the time of the crime, Appellant was fifteen.[3] His initial
        conviction for first-degree murder was reversed by the

2   Our Supreme Court set forth the evidence as follows.

        Evidence adduced at trial established that on June 7, 1971, at
        approximately 9:05 P.M., [Appellant], known as “Shank,”
        wearing a yellow jacket with a round, blue emblem, was seen
        walking with [] six-year-old [V]ictim and calming him after
        [Victim’s] involvement in a scuffle with another child. They
        walked in the general direction of the crime scene. Later, []
        fifteen-year-old [Appellant], no longer wearing the yellow jacket,
        was seen entering a taproom where he washed his hands. At
        approximately 10:30 P.M. that evening, the battered body of
        [V]ictim was found in a dark, abandoned area behind a vacant
        factory within blocks of where he was seen with [Appellant].
        Slacks around his ankles, undershorts pulled up around his
        waist, [Victim] was pronounced dead at the scene. His shirt,
        stained with feces and semen, was on the ground four feet
        away. Near [Victim’s] shirt was a large black, “bush type,” comb
        with “Shank” scratched on the handle. A yellow jacket with a
        round, blue emblem was found one and one-half days later not
        far from the scene. Stained with both blood of [V]ictim’s type
        and semen consistent with [Appellant’s] type, the jacket was
        identified as the one worn by [Appellant] when he was seen
        calming [V]ictim and walking in the general direction of the
        vacant factory.

        The medical examiner testified to the various severe injuries to
        the head, producing at least three comminuted fractures of the
        skull, opined to have been inflicted by blows of a heavy rounded
        object. Also recounted was the tearing of the marginal area of
        the anus in four discrete areas, as a result of the anal sodomy,
        and the outcome of laboratory examination of material from the
        anal area which established the presence of semen.

454 A.2d at 548.

3 The record is inconsistent as to whether Appellant was 15 or 16 at the time
of the crime, but our Supreme Court reviewed the crime as happening when
(Footnote Continued Next Page)

                                      -2-
J-S24033-20


      Pennsylvania Supreme Court because he had confessed to the
      crime without being afforded an opportunity to speak with his
      mother or another interested adult. Commonwealth v.
      McCutchen, 343 A.2d 669 (Pa. 1975). Concomitantly, [this]
      Court reversed his sodomy conviction for the same
      reason. Commonwealth v. McCutchen, 369 A.2d 291 (Pa.
      Super. 1976).

      Thereafter, the Commonwealth retried Appellant for the murder
      and nolle prossed the sodomy count. A jury again convicted
      Appellant of first-degree murder on May 5, 1976. [On April 5,
      1977, Appellant was sentenced to a mandatory sentence of
      LWOP.] This Court reversed on the basis that two color slides of
      [] six-year-old [V]ictim’s body, which were shown to the jury,
      were too gruesome and inflammatory. Commonwealth v.
      McCutchen, 417 A.2d 1260 (Pa. Super. 1979). However, the
      Pennsylvania Supreme Court reversed that decision and
      remanded to the Superior Court for consideration of additional
      issues not addressed. McCutchen, 454 A.2d 547. This Court
      then affirmed. Commonwealth v. McCutchen, 488 A.2d 1165
      (Pa. Super. 1984) (unpublished memorandum). The Supreme
      Court denied allocatur on April 10, 1985.

McCutchen, 121 A.3d 1126 (Pa. Super. 2015) (unpublished memorandum

at 2) (footnotes omitted). Appellant subsequently filed petitions pursuant to

the   Post   Conviction       Relief      Act,   42    Pa.C.S.   §§   9541-9546,   and   its

predecessor, in 1989, 1990, 2005, 2012, 2016, and 2018.4


(Footnote Continued)   _______________________

Appellant was 15 years old, and, according to Appellant’s answer at his
resentencing hearing, he would have been 15 years old at the time of the
murder. See McCutchen, 454 A.2d at 548; N.T., 4/8/2019, at 10-13
(discussing inconsistencies in the record regarding Appellant’s date of birth,
and Appellant’s providing his date of birth).
4 On April 29, 2015, Appellant filed a petition for a writ of habeas corpus in
federal court based in part upon Miller. The District Court denied and
dismissed Appellant’s petition in part, holding the portion seeking relief
pursuant to Miller in abeyance. See McCutchen v. Wenerowicz, 2018 WL
2250876 at *1 & n.1 (E.D.Pa. 2018) (unreported order) (“While
(Footnote Continued Next Page)

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      Of particular relevance to this appeal are the 2012, 2016, and 2018

petitions. In 2012, Appellant sought relief, inter alia, for his LWOP sentence

based on Miller.            This Court affirmed the PCRA court’s dismissal of

Appellant’s Miller claim pursuant to Commonwealth v. Cunningham, 81

A.3d 1 (Pa. 2013) (overruled), which had held that Miller did not apply

retroactively to claims on collateral review.            See McCutchen, 121 A.3d

1126 (unpublished memorandum). Appellant did not seek review before our

Supreme Court.

      On January 25, 2016, the United States Supreme Court held that

Miller’s prohibition on LWOP sentences for juvenile offenders announced a

new substantive rule that applied retroactively in cases on collateral review,

overruling Cunningham. Montgomery v. Louisiana, ___ U.S. ___, 136

S.Ct. 718 (2016).           Appellant did not file a PCRA petition pursuant to

Montgomery.        Following         Montgomery,       the   Defender   Association   of

Philadelphia (DAP) compiled a list of 66 individuals, including Appellant, who

it believed were entitled to Miller/Montgomery relief. On May 25, 2016,

DAP was appointed to represent Appellant and the 65 other individuals in


(Footnote Continued)   _______________________

[Appellant’s] Miller claim also appears to be untimely, this Court will, by
separate order, appoint the Federal Community Defender Office for the
Eastern District of Pennsylvania to represent Petitioner on this claim. This
Court will hold in abeyance its decision on [Appellant’s] Miller claim until the
Federal Community Defender Office has an opportunity to respond to the
timeliness issue and the merits of the claim.”). There is no indication in the
record or in this Court’s independent research as to the status of Appellant’s
federal case.

                                                 -4-
J-S24033-20

connection with any Montgomery proceedings.                    Following appointment,

DAP did not file a PCRA petition based on Montgomery.

          On June 22, 2016, Appellant pro se filed a petition seeking relief

pursuant to Williams v. Pennsylvania, ___ U.S. ___, 136 S.Ct. 1899

(2016)      (holding   “that   under    the   Due    Process    Clause   there    is   an

impermissible risk of actual bias when a judge earlier had significant,

personal involvement as a prosecutor in a critical decision regarding the

defendant’s case”).        Specifically, Appellant averred that Pennsylvania

Supreme Court Justice McDermott, who was the judge at Appellant’s jury

trial, should have recused himself from Appellant’s appeal before that Court

in 1982.

          On August 15, 2016, as part of the “Juvenile Lifers Sentenced Without

the Possibility of Parole Program,” a “PCRA Conference Order” was entered

tentatively scheduling Appellant for a resentencing hearing on October 17,

2016. Order, 8/15/2016.5 On October 25, 2016, the Commonwealth filed

an   answer,      purportedly    in    response     to   a   PCRA   petition     seeking

Miller/Montgomery relief, conceding that Appellant was entitled to such

relief.     However, no PCRA petitions raising a Miller/Montgomery claim

appear in the record prior to the filing of this purported answer. In its March

15, 2017 answer to Appellant’s 2016 pro se PCRA petition raising a



5 We are unable to glean any additional information on this program from
the record.

                                          -5-
J-S24033-20

Williams claim, the Commonwealth stated that no petition pursuant to

Miller/Montgomery had been filed when it filed its October 25, 2016

answer.   Commonwealth’s Response, 3/15/2017, at 3 (unnumbered).              In

Appellant’s pro se response to the Commonwealth, Appellant raised for the

first time, in cursory fashion at the conclusion of his Williams analysis, that

his LWOP sentence was illegal pursuant to Montgomery.                 Appellant’s

Response, 3/29/2017, at 6.

      The PCRA court appointed non-DAP counsel on Appellant’s Williams

petition, and that counsel filed a petition to withdraw and Turner/Finley6

no-merit letter. The PCRA court ultimately dismissed Appellant’s 2016 PCRA

petition raising a Williams claim as untimely.     On October 16, 2018, this

Court affirmed the PCRA court’s dismissal. Commonwealth v. McCutchen,

200 A.3d 567 (Pa. Super. 2018) (unpublished memorandum).

      On December 7, 2018, and December 17, 2018, additional “PCRA

Conference    Orders”   were   issued,   rescheduling   Appellant’s    purported

resentencing hearing. On December 18, 2018, DAP filed for the first time a

PCRA petition challenging the legality of Appellant’s LWOP sentence under

Montgomery.      Therein, counsel acknowledged that he had failed to file

timely a petition, but argued that all parties had been operating as if

Appellant had filed timely a petition following Montgomery, and requested



6 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

                                     -6-
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that the PCRA court consider Appellant’s December 18, 2018 petition nunc

pro tunc. PCRA Petition, 12/18/2018, at 2 (unnumbered) (“[S]ince the lack

of having filed a Montgomery claim appears to have been a mere

administrative oversight, in the interest of justice, [Appellant] respectfully

requests that [the PCRA court] reinstate his Miller/Montgomery PCRA

nunc pro tunc, and continue its diligent efforts at permitting vacation of the

mandatory life sentence, and re[]sentencing [Appellant] according to the

current [juvenile LWOP resentencing] procedures.”).     On January 4, 2019,

the PCRA court granted Appellant’s request to consider his December 18,

2018 petition nunc pro tunc.7

      On April 8, 2019, the PCRA court granted Appellant’s December 18,

2018 PCRA petition, vacated his 1977 LWOP sentence, and held a

resentencing hearing in accordance with Commonwealth v. Batts (Batts

II), 163 A.3d 410 (Pa. 2017).8 After hearing the arguments of counsel and



7 For the reasons discussed at length infra, the court lacked jurisdiction to
consider the PCRA petition.
8 In Batts II, our Supreme Court held that in resentencing a juvenile
defendant convicted of first-degree murder pre-Miller, a court may sentence
the defendant to LWOP only after finding him “permanently incorrigible and
that rehabilitation would be impossible[;]” otherwise, the defendant shall be
sentenced to life with the possibility of parole following a minimum term-of-
years sentence. 163 A.3d at 459-60. Here, the Commonwealth conceded
that it could not prove Appellant was incorrigible and incapable of
rehabilitation, and therefore did not seek a LWOP sentence. N.T., 4/8/2019,
at 15-16. Due to the surrounding circumstances of the murder, even though
Appellant was not convicted of sodomy at his second trial, the
Commonwealth requested that Appellant be supervised upon release by a
(Footnote Continued Next Page)

                                    -7-
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victim impact statements from Victim’s sister and father, the court

sentenced Appellant as follows.

      [T]his is one of the worst cases that I have seen. The damage
      that you caused and the pain that you caused can’t be described.
      And you heard from [Victim’s sister] that her mother attempted
      to commit suicide multiple times as a result of your actions. So
      you had this happy family who has been destroyed. That
      doesn’t diminish how you destroyed your own life, but it is
      hereby the sentence of this [c]ourt that you serve a period of not
      less than 40 nor more than life imprisonment.

      Now, I am making a condition that you undergo a sex treatment
      program in the prison before you are eligible for parole. So
      make sure you hear me and understand me. In the past, you
      may have refused programs and you can refuse programs again.
      But if you don’t complete a sex offender program in prison, the
      Parole Board is not going to consider paroling you, nor will I
      when they ask me what my recommendations are.

                                                 ***

      So, you have the time credit in, but so we understand, get that
      program done and then you’ll be eligible for parole. Time for
      credit.

N.T., 4/8/2019, at 39-41.

      Immediately following the court’s imposition of sentence, Appellant

indicated that he wanted to represent himself for purposes of appeal.

Accordingly, the court held a hearing pursuant to Commonwealth v.

Grazier, 713 A.2d 1 (Pa. 1998).                  See N.T., 4/8/2019, at 41-51.   At the
(Footnote Continued)   _______________________

sex offender unit of the Parole Board. Id. at 33-34. DAP conveyed
Appellant’s request of a sentence of 22½ to 45 years, but acknowledged that
such a sentence was not legally permissible under Batts II. Alternatively,
DAP asked the court to sentence Appellant to 35 years to life. Id. at 31-32.
It was undisputed that Appellant had been in prison for 48 years at the time
of his resentencing hearing.

                                                 -8-
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conclusion of the hearing, the court permitted DAP to withdraw and granted

Appellant’s request to proceed pro se. Id. at 51.

      On April 15, 2019, Appellant filed a motion for reconsideration of

sentence based on, inter alia, (1) the Commonwealth’s reading aloud a

portion of Appellant’s statement that had previously been suppressed by

McCutchen, 343 A.2d 669; (2) the Commonwealth’s mentioning Appellant’s

sodomy charge even though it had been nolle prossed; (3) the court’s

imposing a condition requiring that Appellant complete sex offender

treatment before being eligible for parole; and (4) an alleged due process

violation because the court imposed a new minimum sentence of 40 years

where Appellant had 48 years’ credit, thereby causing him to lose the

opportunity to seek parole for the last eight years.       The court denied

Appellant’s post-sentence motion on April 30, 2019.

      Appellant filed a notice of appeal on April 30, 2019.9 Both Appellant

and the resentencing court have complied with the mandates of Pa.R.A.P.



9 The notice of appeal was hand-dated April 27, 2019, and received April 30,
2019. Thus, it was filed before the court ruled on Appellant’s post-sentence
motion. See Commonwealth v. DiClaudio, 210 A.3d 1070, 1074 (Pa.
Super. 2019) (“[T]he prisoner mailbox rule provides that a pro se prisoner’s
document is deemed filed on the date he delivers it to prison authorities for
mailing.”). As a general rule, this Court has jurisdiction only over final
orders. When a post-sentence motion is filed timely, the judgment of
sentence does not become final until the trial court disposes of the motion or
it is denied by operation of law. Pa.R.Crim.P. 720(A)(2). “No direct appeal
may be taken by a defendant while his or her post-sentence motion is
pending.” Pa.R.Crim.P. 720 comment. When an appellant files a notice of
appeal before the court has ruled on his post-sentence motions, the
(Footnote Continued Next Page)

                                    -9-
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1925.    On appeal, Appellant raises the following questions for our review,

which we restate verbatim.

        1. Whether where the Commonwealth introduced a confession
           which had been suppressed over 44 years ago created
           prosecutorial misconduct and violated the Appellants
           constitutional right to remain silent and as such impermissibly
           contributed to the sentence of 40 years to life?

        2. Whether where the Commonwealth injected into the
           sentencing hearing a sodomy charge and conviction that had
           been reversed and nolle prosequi and the indictment
           squashed for lack of prosecution over 42 years ago
           impermissibly contributed to the sentence of 40 years to life
           and as such created prosecutorial misconduct?

        3. Whether where the hearing and sentencing court ordered that
           the Appellant must enter a sex offender program and must
           complete it before he can be paroled created two
           impermissible presumptions (1) where there is no conviction
           for any sexual conduct and (2) where neither at the first trial
           held October 1972 sentence imposed on 10-3-73 nor at a
           second trial held April-May 1976 sentence imposed on April
           5th 1977 did either court order any such program nor
           conditions nor any sex offender registration once out of prison
           causes the sentencing court order of April 8th 2019 to be an
           abuse of discretion, judicial overreaching and retaliation, and
           amounts to convicting the Appellant of a crime he is not
           charged with?

        4. Whether where the sentencing court imposed a 40 year
           minimum is contrary to the State Supreme Court
(Footnote Continued)   _______________________

judgment of sentence is not yet final, and any purported appeal therefrom is
premature and interlocutory. In those circumstances, the proper remedy is
to quash the appeal, relinquish jurisdiction, and remand for the trial court to
consider the post-sentence motions nunc pro tunc. See Commonwealth v.
Borrero, 692 A.2d 158, 160 (Pa. Super. 1997) (holding appeal premature
while post-sentence motion was still pending before the lower court). In the
instant case, although Appellant’s notice of appeal was filed prematurely, our
jurisdiction has been perfected because the court subsequently entered an
order denying Appellant’s post-sentence motion.

                                                 - 10 -
J-S24033-20


          determination at Commonwealth v. Batts No. 79 MAP
          (2009) decided 3-26-19[10] where the Court ordered that
          juveniles convicted prior to June 25, 2012 cannot be
          subjected to the high mandatory minimum of § 1102.1 upon
          resentencing?

        5. Whether where the sentencing court imposed a sentence of
           40 years to life denied the Appellant substantive due process
           and created cruel and unusual punishment violative of the
           United States Constitutions 8th and 14th Amendments where
           (1) the minimum of 40 years expired on June 8th 2011 8
           years before the sentence was imposed, and as such denied
           the Appellant the right to had submitted an application for a
           parole from 2011 to 2018 and (2) where the Appellant was
           not allowed to had challenged such sentence on appeal
           following both trials held in 1972 and 1976 and as such
           causes such sentence to be invalid?

Appellant’s Brief at 5-6 (capitalization altered).

        Before we reach the merits of Appellant’s claims on appeal, we must

first determine whether Appellant’s Montgomery claim was properly

presented. “Appellate jurisdiction cannot be conferred by mere agreement

or silence of the parties where it is otherwise nonexistent.        We may

accordingly raise this issue sua sponte, even though neither of the parties

have done so.”      Commonwealth v. Borrero, 692 A.2d 158, 159 (Pa.

Super. 1997) (citations omitted).     See also Montgomery, ___ U.S. ___,

136 S.Ct. at 732 (“In adjudicating claims under its collateral review

procedures a State may not deny a controlling right asserted under the

Constitution, assuming the claim is properly presented in the case.”).

Specifically at issue is whether the PCRA court had jurisdiction to entertain

10   Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013) (Batts I).

                                      - 11 -
J-S24033-20

Appellant’s 2018 PCRA petition, because if it did not, the court was likewise

without jurisdiction to vacate Appellant’s LWOP sentence, rendering the

proceedings after it and any appeal from the 2019 sentence nullities.

     The PCRA provides that “[a]ny petition under this subchapter,
     including a second or subsequent petition, shall be filed within
     one year of the date the judgment becomes final.” 42 Pa.C.S.
     § 9545(b)(1). A PCRA petition may be filed beyond the one-year
     time period only if the convicted defendant pleads and proves
     one of the following three exceptions:

           (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.

     Id. At the time of all events relevant to this PCRA
     petition, [subs]ection 9545(b)(2) required that a PCRA petition
     invoking an exception “be filed within 60 days of the date the
     claim could have been presented.” 42 Pa.C.S. § 9545(b)(2) (in
     effect January 16, 1996 to December 23, 2018).3 The PCRA’s
     time limit is mandatory and jurisdictional, and a court may not
     ignore it and reach the merits of the PCRA petition, even where
     the convicted defendant claims that his sentence is
     unconstitutional and illegal.
            ______
            3 In 2018, [subs]ection 9545(b)(2) was amended to

            provide that a PCRA petition invoking an exception “shall
            be filed within one year of the date the claim could have
            been presented.” 42 Pa.C.S. § 9545(b)(2); Act of October
            24, 2018, P.L. 894, No. 146, § 2. The Act

                                   - 12 -
J-S24033-20


              amending [subs]ection 9545(b)(2) provided that the one-
              year period applies only to timeliness exception claims
              arising on or after December 24, 2017. Act of October 24,
              2018, P.L. 894, No. 146, §§ 3, 4. The events [giving rise
              to Cobbs’s] claims timeliness exceptions are the
              2012 Miller decision, the 2016 Montgomery [] decision
              and [Cobbs’s] September 2017 Allegheny County case
              resentencing. Because all of these occurred prior to
              December 2017, the 60-day rather than the one-year
              period applies here.[11]

Commonwealth v. Cobbs, ___ A.3d ___, 2020 WL 880345 at *2-3 (Pa.

Super. 2020) (some citations omitted).

       “For purposes of [the PCRA], a judgment [of sentence] 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).     Here, Appellant’s sentence became final in 1985 after our

Supreme Court denied allocatur and Appellant declined to seek review with

the United States Supreme Court.       As such, Appellant’s 2018 petition is

facially untimely and he was required to plead and prove an exception to the

timeliness requirements.

      Appellant did not plead any timeliness exceptions in his 2018

petition.12   Instead, counsel requested that the PCRA court consider the



11Insofar as Appellant also bases his timeliness exception on the
Montgomery decision, the 60-day period similarly applies here.
12 Even if Appellant had attempted to plead and prove any of the exceptions,
it would have been fruitless. The only potentially applicable exception would
(Footnote Continued Next Page)

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J-S24033-20

petition nunc pro tunc based on a “mere administrative oversight” resulting

in   Appellant’s   failure       to    file      timely   a   PCRA   petition   pursuant    to

Miller/Montgomery, and because all parties had been proceeding as if

Appellant had timely filed a PCRA petition following Montgomery.                           See

PCRA Petition, 12/18/2018, at 2 (unnumbered). While counsel attempted to

take the blame for failing to file timely a PCRA petition, it is well-settled that

allegations of the ineffective assistance of counsel will not overcome the



(Footnote Continued)   _______________________

be the new-retroactive-right exception based upon Montgomery. The
Supreme Court decided Montgomery on January 25, 2016. As such, PCRA
petitions that would otherwise be untimely had to be filed by March 25,
2016, within 60 days of the issuance of Montgomery, to invoke the new-
retroactive-right timeliness exception. Appellant’s 2018 petition clearly does
not fall within that time frame, and Appellant did not file any other petition
pursuant to Montgomery during that time frame.

      Nor can the 2018 petition be considered an extension of Appellant’s
2012 petition invoking Miller.    This Court affirmed the dismissal of
Appellant’s 2012 petition in 2015.    See McCutchen, 121 A.3d 1126
(unpublished memorandum). Thus, Appellant’s 2012 petition was final at
the time Montgomery was issued.

      Once a PCRA petition has been decided and the ruling on it has
      become final, there is nothing for a subsequent petition or
      pleading to “extend.” Far from continuing into perpetuity, the
      [PCRA] court’s jurisdiction over a matter generally ends once an
      appeal is taken from a final order or, if no appeal is taken, thirty
      days elapse after the final order.

Commonwealth v. Robinson, 837 A.2d 1157, 1162 (Pa. 2003) (“Since the
jurisdiction of the court system over the prior PCRA petition had expired,
appellee’s subsequent petitions were entirely new collateral actions and, as
such, they were subject to the time and serial petition restrictions
of [subs]ection 9545(b) of the PCRA.”).


                                                 - 14 -
J-S24033-20

PCRA’s jurisdictional timeliness requirements,13 and “the nature of the

constitutional violations alleged has no effect on the application of the PCRA

time   bar.     Rather,   the   only   cognizable   exceptions   are   set   forth

at [subs]ection 9545(b)(1).” Commonwealth v. Edmiston, 65 A.3d 339,

349 (Pa. 2013) (citing Commonwealth v. Wharton, 886 A.2d 1120, 1127

(Pa. 2005)).

       [Our Supreme] Court has repeatedly stated that the timeliness
       requirements are jurisdictional in nature and, accordingly, a
       PCRA court cannot hear untimely PCRA petitions. In addition,
       we have noted that [t]he PCRA confers no authority upon this
       Court to fashion ad hoc equitable exceptions to the PCRA time-
       bar in addition to those exceptions expressly delineated in the
       Act. We have also recognized that the PCRA’s time restriction is
       constitutionally valid.

Commonwealth v. Robinson, 837 A.2d 1157, 1161 (Pa. 2003) (citations

and quotation marks omitted).

       Here, Appellant’s petition was patently untimely and he failed to plead

or prove any of the statutory timeliness exceptions. As a result, the PCRA

court lacked jurisdiction to consider Appellant’s 2018 PCRA petition.        See

Commonwealth v. Valentine, 928 A.2d 346, 349 (Pa. Super. 2007)

(citations omitted) (“The PCRA court lacked jurisdiction ab initio to grant

PCRA relief, because [Valentine] filed his PCRA petition more than one year

after his judgment of sentence became final and failed to plead or prove a



13 Additionally, counsel did not seek appointment until after the 60-day
timeframe for filing a petition invoking Montgomery as a timeliness
exception had elapsed.

                                       - 15 -
J-S24033-20

statutory timeliness exception. Accordingly, we are likewise precluded from

addressing the merits of Appellant’s claim and quash this appeal.”).

      We are cognizant that Appellant is serving a sentence that would have

been vacated as unconstitutional if he had filed his petition within 60 days of

the issuance of Montgomery, because the lower court would have had

jurisdiction to grant him relief. At the same time, we note that

      any formulation of a time limitation curtailing collateral judicial
      review must accept that some legitimate claims may possibly
      escape review. Nevertheless, a time bar applicable to post-
      conviction review is a rational, and perhaps necessary,
      legislative response to serial challenges raised by prisoners that
      undermine finality and tax government resources, and to
      effectively implement a limitation, exceptions by their nature
      must contain effective boundaries to prevent them from
      undermining the general rule.

Commonwealth v. Bennett, 930 A.2d 1264, 1279 (Pa. 2007) (Saylor, J.,

dissenting) (footnote omitted).     Our Supreme Court has created clear

boundaries around the timeliness of PCRA petitions, and we cannot create a

non-statutory exception to allow Appellant the benefit of Montgomery.

      Accordingly, we conclude that the PCRA court lacked jurisdiction to

grant Appellant’s request to review his PCRA petition nunc pro tunc or to

grant PCRA relief. Consequently, Appellant’s 2019 sentence and appeal

therefrom are legal nullities, and his 1977 sentence remains in effect.

      Appeal quashed.




                                    - 16 -
J-S24033-20




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/20




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