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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 MANUEL H. HERNANDEZ                     :
                                         :
                     Appellant           :   No. 3374 EDA 2018

          Appeal from the PCRA Order Entered November 6, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0641321-1992


BEFORE:    LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY LAZARUS, J.:                             FILED MAY 21, 2019

      Manuel H. Hernandez appeals, pro se, from the trial court’s order

dismissing, as untimely, his second petition filed pursuant to the Post

Conviction Relief Act (PCRA). See 42 Pa.C.S. §§ 9541-9546. After careful

review, we affirm.

      On April 22, 1992, Hernandez robbed his victim at gunpoint in the

victim’s home.       Two days later, Hernandez returned to the victim’s

neighborhood with four compatriots and used a teenage bystander as a human

shield when he shot the victim in the stomach. The victim died later that day.

Hernandez was twenty-two years old at the time of the murder. Hernandez

was tried by a jury and found guilty of first-degree murder, kidnapping,

recklessly endangering another person, and possessing an instrument of

crime. On July 23, 1993, the trial court sentenced Hernandez to life in prison

without the possibility of parole for murder and an aggregate, concurrent

____________________________________
* Former Justice specially assigned to the Superior Court.
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sentence of 2½-5 years’ imprisonment on the remaining charges.1 Hernandez

filed post-trial motions that were denied. On May 4, 1992, our Court affirmed

Hernandez’s judgment of sentence on direct appeal. On December 1, 1994,

the Pennsylvania Supreme Court denied Hernandez’s petition for allocatur.

        On April 10, 1995, Hernandez filed his first PCRA petition alleging

ineffectiveness of trial counsel. The PCRA court dismissed the petition, after

holding an evidentiary hearing, and this Court affirmed the dismissal on

collateral appeal. Commonwealth v. Hernandez, 697 A.2d 274 (Pa. Super.

filed Dec. 11, 1996) (Table). On May 30, 1997, the Pennsylvania Supreme

Court    denied    Hernandez’s      petition   for   allowance   of   appeal.   See

Commonwealth v. Hernandez, 698 A.2d 64 (Pa. filed May 30, 1997)

(Table).

        On August 28, 2012, Hernandez filed the instant PCRA petition pro se.

In his petition, Hernandez claimed that he is entitled to relief under Miller v.

Alabama, 567 U.S. 460 (2012).              On September 6, 2018,2 the trial court

issued Pa.R.Crim.P. 907 notice of its intent to dismiss Hernandez’s petition

without a hearing. Hernandez responded to the Rule 907 notice, “directing

[the trial] court’s attention to the Superior Court’s October 23, 2018[,] en

____________________________________________


1   No sentence was imposed for the kidnapping conviction.

2 There is nothing in the certified record explaining the six-year gap between
the filing of Hernandez’s second PCRA petition and the trial court’s action on
that petition. The record merely indicates that on January 27, 2017, the
“[c]ase is restored.” Court of Common Pleas of Philadelphia County Appeal
Inventory (CP-51-CR-0641321-1992), Entry 8, 1/27/17.

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banc hearing on COMMONWEALTH V. AVIS LEE, a case involving the matter

at issue in his case (extending MILLER’S juveniles[’] ages to 18-25), where

the outcome of that decision should determine the outcome of Petitioner’s

present [p]etition that has been pending since 2012.” Response to Rule 907

Notice, 9/18/18, at ¶ 9.

       On November 6, 2018, the trial court entered an order dismissing

Hernandez’s petition as untimely. This timely appeal followed.3 On appeal,

Hernandez raises the following issues for our review:

       (1)    Whether the petitioner’s Miller claim was timely filed after
              Montgomery [v. Louisiana, 136 S. Ct. 718 (2016),]
              rendered Miller retroactive and his petition was filed within
              60 days of that announcement.

       (2)    Whether petitioner’s sentence is unconstitutional under
              Miller.

Appellant’s Brief, at vi.

       In Commonwealth v. Sandusky, 2019 PA Super. 27 (Pa. Super. filed

Feb. 5, 2019), our Court set forth the applicable standard of review in

collateral appeals:

       [O]ur standard of review from the denial of a PCRA petition “is
       limited to examining whether the PCRA court’s determination is
       supported by the evidence of record and whether it is free of legal
       error.” Commonwealth v. Ousley, [] 21 A.3d 1238, 1242 (Pa.
       Super. 2011) (citation omitted). “The PCRA court’s credibility
       determinations, when supported by the record, are binding on this
       Court; however, we apply a de novo standard of review to the

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3 The trial court did not order Hernandez to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal.

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       PCRA court’s legal conclusions.” Commonwealth v. Mitchell, []
       105 A.3d 1257, 1265 ([Pa]. 2014) (citation omitted).

Id. at *4.

       Generally, a petition for PCRA relief, including a second or subsequent

petition, must be filed within one year of the date the judgment is final. See

42 Pa.C.S.A. § 9545(b)(3). A PCRA court lacks jurisdiction to entertain an

untimely petition unless a petitioner pleads and proves one of the PCRA’s

section 9545(b)(1) timeliness exceptions. Where the petition alleges, and the

petitioner proves, that an exception to the time for filing the petition is met,

the petition will be considered timely. These exceptions include interference

by government officials in the presentation of the claim, newly-discovered

facts or evidence, and an after-recognized constitutional right.           See

Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000). A PCRA

petition invoking one of these exceptions must “be filed within 60 days of the

date the claims could have been presented.” Id.; see also 42 Pa.C.S.A. §

9545(b)(2).4 The timeliness requirements of the PCRA are jurisdictional in

nature and, accordingly, a PCRA court cannot hear untimely petitions.

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


____________________________________________


4 Section 9545(b)(2) was amended on October 24, 2018, effective in 60 days
(Dec. 24, 2018), extending the time for filing from sixty (60) days of the date
the claim could have been presented, to one year. The amendment applies
to claims arising on December 24, 2017, or thereafter. See Act 2018, Oct.
24, P.L. 894, No. 146, § 3. Here, the 60-day time limit in section 9545(b)(2)
applies to Hernandez’s petition, as he filed his petition on August 28, 2012.


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        Instantly, Hernandez’s judgment of sentence became final, for purposes

of the PCRA, on March 1, 1995, when the time expired for him to file a petition

for certiorari with the United States Supreme Court.     See Sup. Ct. R. 13.

Here, Hernandez filed the petition more than 17 years later, on August 28,

2012.     Accordingly, it is patently untimely and the PCRA court had no

jurisdiction to entertain Hernandez’s petition unless he pled and proved one

of the timeliness exceptions set forth in section 9545(b)(1).

        Here, Hernandez invokes the after-recognized constitutional right

exception to the PCRA. 42 Pa.C.S. § 9545(b)(1)(iii). Hernandez claims that

he is entitled to PCRA relief based on the holdings in Miller, supra, and

Jackson v. Hobbs, 567 U.S. 460 (2012),5 because his “brain had not been

fully developed at the age of 22” when he committed the instant offenses.

PCRA Petition, 8/28/12, at 5.

        In Miller, the United States Supreme Court held that mandatory life

without parole sentences for those offenders who were under the age of 18 at

the time of their crimes violate the Eighth Amendment’s prohibition on “cruel

and unusual punishments.” Id. at 465. Later, in Montgomery, supra, the

Supreme Court determined that Miller applies retroactively to cases on

collateral review. 136 S. Ct. at 732-37.




____________________________________________


5 Jackson and Miller were companion cases, both involving 14-year-old
offenders convicted of murder and sentenced to life imprisonment without the
possibility of parole.

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      We first note that Hernandez filed the instant petition 64 days after

Miller and Jackson were decided. Thus, he did not file his petition within the

60-day window set forth in section 9545(b)(2). However, even if we were to

find that Hernandez complied with section 9545(b)(2)’s time restriction, he

would not be entitled to collateral relief. Recently, an en banc panel of our

Court held that a petitioner, asserting an identical claim, could not satisfy the

newly-recognized constitutional right exception to the PCRA’s time-bar to

overcome the untimeliness of her PCRA petition. In Commonwealth v. Lee,

2019 PA Super 64 (Pa. Super. filed March 1, 2019) (en banc), like in the

instant case, the defendant, who was over the age of eighteen at the time she

committed murder, could not successfully invoke the holding of Miller to

prove the PCRA’s section 9545(b)(1)(iii) exception.      Specifically, our Court

recognized that “age is the sole factor in determining whether Miller applies

to overcome the PCRA time-bar,” concomitantly declined to extend “its

categorical holding,” and found meritless defendant’s argument that at the

time she committed the offense she had an undeveloped brain that prevented

her from forming the requisite intent for murder. Lee, supra at *9.

      Likewise, Hernandez cannot overcome the untimeliness of his petition

by invoking section 9545(b)(1)(iii) on the basis of Miller where he was

twenty-two years old at the time he committed the instant offenses, despite

any underdeveloped brain he claims he may have had at the time he murdered

the victim.   Accordingly, the PCRA court lacked jurisdiction to consider

Hernandez’s untimely petition.     Thus, we find that the court’s decision to

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dismiss Hernandez’s petition is supported by the evidence of record and is free

of legal error. Ousley, supra.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/19




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