J-A13025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellant

                     v.

ANTHONY MACHICOTE,

                          Appellee                   No. 1176 WDA 2014


            Appeal from the Judgment of Sentence June 24, 2014
               In the Court of Common Pleas of Mercer County
             Criminal Division at No(s): CP-43-CR-0001958-2003


BEFORE: PANELLA, SHOGAN, and OTT, JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED JUNE 24, 2015

      The Commonwealth appeals from the judgment of sentence entered

following the grant of relief pursuant to an untimely second petition filed

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, by

Anthony Machicote, Appellee.          Upon review, we vacate the judgment of

sentence and remand for reinstatement of Appellee’s original sentence.

      In an appeal from Appellee’s first PCRA petition, we summarized the

facts of this case as follows:

            On November 10, 2003, [Appellee (then age 17)] and
      Jeremy Melvin executed their plan to escape from the George
      Junior Republic Facility, a housing facility for delinquent and
      dependent children [located in Pine Township, Mercer County].
      [Appellee] called a night supervisor, Wayne Urey, Jr., to
      [Appellee’s] room by faking an illness. Melvin came up behind
      Urey and locked him in a choke hold while [Appellee] tied Urey’s
      legs with a sheet. Melvin put a sock in Urey’s mouth and tied a
      sheet around it. [Appellee] and Melvin stole Urey’s money,
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        keys, and car      and fled from the facility.     Later that day,
        [Appellee] and    Melvin confessed the details of the incident to a
        school security   guard and turned themselves in to police. Urey
        suffocated as a   result of the incident.

Commonwealth v. Machicote, 965 WDA 2006, 929 A.2d 242 (Pa. Super.

filed May 30, 2007) (unpublished memorandum at 1-2).

        Both Appellee and Melvin were charged as adults with criminal

homicide, robbery, and related charges.          On November 3, 2004, Appellee

pled guilty to second-degree murder. In exchange for the guilty plea, the

Commonwealth nol prossed the remaining charges.                     In addition, the

Commonwealth agreed to provide Appellee with a letter indicating that it

would take no position if Appellee filed an application for commutation of

sentence after serving twenty-five years of imprisonment.               On January 6,

2005,    the   trial   court   sentenced    Appellee   to   serve   a   term   of   life

imprisonment. Appellee did not file a direct appeal.

        On January 9, 2006, Appellee filed a timely pro se PCRA petition,

which was his first. Appointed counsel then filed an amended PCRA petition,

and the PCRA court denied relief. On May 30, 2007, this Court affirmed the

denial of PCRA relief, and the Pennsylvania Supreme Court denied Appellee’s

petition for allowance of appeal. Commonwealth v. Machicote, 965 WDA

2006, 929 A.2d 242 (Pa. Super. 2007) (unpublished memorandum), appeal

denied, 932 A.2d 1287 (Pa. 2007).

        On August 22, 2012, Appellee filed an untimely second PCRA petition,

in which he sought to have his life sentence without parole vacated, and to

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be resentenced pursuant to Miller v. Alabama, ___ U.S. ___, 132 S.Ct.

2455 (2012). Disposition of the PCRA petition was continued several times

awaiting a ruling on the applicability of Miller in Pennsylvania.        On

September 30, 2013, the PCRA court entered an order granting Appellee’s

request for relief on the grounds that the Miller decision rendered the life

sentence unlawful.     The Commonwealth appealed and then withdrew the

appeal. Thereafter, the Commonwealth’s appeal was reinstated, but it was

ultimately dismissed due to failure to file a brief.

      Consequently, Appellee was resentenced on June 24, 2014, to a term

of life in prison with parole, with a recommendation that Appellee not be

paroled until his 58th birthday. On July 2, 2014, the Commonwealth filed a

post-sentence motion alleging that the lower court lacked the authority to

resentence Appellee in light of Commonwealth v. Cunningham, 81 A.3d 1

(Pa. 2013).   The motion was denied on July 2, 2014.     This appeal by the

Commonwealth followed.

      The Commonwealth presents the following issues for our review:

      1. Did the Sentenc[ing] Court err by imposing a sentence of life
      with the possibility of parole upon [Appellee’s] 58th birthday
      where the sentence was not based on a sentencing scheme in
      place at the time of [Appellee’s] original sentence?

      2. Did the Sentenc[ing] Court err by considering the factors set
      forth in Miller v. Alabama, 132 S.Ct. 2455 (2012), after
      holding that case law interpreting Pa.R.A.P. Rule 2314 requires
      that the dismissal of the Commonwealth’s original appeal due to
      a procedural defect constrained the Sentence Court from
      conducting a resentence hearing in accordance               with
      Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013)?

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      3. Did the Sentenc[ing] Court err by imposing a sentence
      inconsistent with the Pennsylvania Supreme Court’s ruling in
      Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), which
      held that Miller is not retroactive, and that juveniles sentenced
      prior to Miller were not entitled to a resentencing?

Commonwealth’s Brief at 4.

      Before we address the issues raised on appeal, we must first ascertain

the jurisdictional posture of this case, as it appears that this direct appeal

stems from the grant of relief by the PCRA court, which itself lacked

jurisdiction. As noted above, Appellee was sentenced in 2005, but he filed

his second PCRA petition in 2012.

      It is undisputed that a PCRA petition must be filed within one year of

the date that the judgment of sentence becomes final.          42 Pa.C.S. §

9545(b)(1).   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).       This time

requirement is mandatory and jurisdictional in nature, and no court may

properly disregard or alter the time requirement in order to reach the merits

of the claims raised in a PCRA petition that is filed in an untimely manner.

Commonwealth v. Murray, 753 A.2d 201, 202-203 (Pa. 2000).                 These

provisions apply to “all PCRA petitions, regardless of the nature of the

individual claims raised therein.” Id. at 202. Our Supreme Court has held

that, “[a]lthough legality of sentence is always subject to review within the

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PCRA, claims must still first satisfy the PCRA’s time limits or one of the

exceptions thereto.”       Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.

1999). Moreover, we have long stated that jurisdiction cannot be conferred

by mere agreement or silence of the parties where it is otherwise

nonexistent. Commonwealth v. Borrero, 692 A.2d 158, 159 (Pa. Super.

1997).

        However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.1 A petition invoking one of these exceptions must be filed

within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2).         In order to be entitled to the exceptions to the
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1
    The exceptions to the timeliness requirement are:

        (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.

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).




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PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).

       Our review of the record reflects that the trial court imposed upon

Appellee a sentence of life imprisonment on January 6, 2005. Accordingly,

Appellee’s judgment of sentence became final on February 7, 2005,2 thirty

days after the trial court imposed the judgment of sentence and Appellee

failed to file a direct appeal with this Court.          42 Pa.C.S. § 9545(b)(3);

Pa.R.A.P. 903(a). In order to be timely, Appellee needed to file his second

PCRA petition within one year of the date that his judgment of sentence

became final.      Appellee did not file the PCRA petition that predicated the

instant relief until August 22, 2012.            Therefore, Appellee’s second PCRA

petition was patently untimely, and the PCRA court lacked jurisdiction to

consider it.

       As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may nevertheless be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S. §
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2
  We note Appellee needed to file his direct appeal with this Court on or
before Monday, February 7, 2005, because February 5, 2005, was a
Saturday. See 1 Pa.C.S. § 1908 (stating that, for computations of time,
whenever the last day of any such period shall fall on Saturday or Sunday,
or a legal holiday, such day shall be omitted from the computation). See
also Pa.R.A.P. 107; Pa.R.A.P. 903, note.



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9545(b)(1). If a petitioner asserts one of these exceptions, he must file his

petition within sixty days of the date that the exception could be asserted.

42 Pa.C.S. § 9545(b)(2).

       To the extent that Appellee attempted to invoke the third exception to

the PCRA timeliness requirements, i.e., “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. §

9544(b)(1)(iii), with reliance upon the United States Supreme Court’s

decision in Miller, such application fails.      In Miller, the United States

Supreme Court held that sentencing a juvenile convicted of a homicide

offense to mandatory life imprisonment without parole violates the Eighth

Amendment’s prohibition to cruel and unusual punishment.          Accordingly,

such sentences cannot be handed down unless a judge or jury first considers

mitigating circumstances. Id. at 2475.3

       Subsequently, the Pennsylvania Supreme Court determined that Miller

does not apply retroactively to an inmate, convicted as a juvenile, who is

serving a sentence of life imprisonment without the possibility of parole and

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3
  We note that on October 15, 2012, effective immediately, the Pennsylvania
Legislature amended 18 Pa.C.S. § 1102(a)(1) (first-degree murder) and (b)
(second-degree murder), to provide sentencing standards for juvenile
offenders convicted of first and second-degree murder after June 24, 2012,
so as to comply with Miller.



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who has exhausted his direct appeal rights and is proceeding under the

PCRA. Cunningham, 81 A.3d at 11. Furthermore, we observe that on June

9, 2014, the United States Supreme Court declined to grant certiorari in

Cunningham.         Cunningham v. Pennsylvania, ___ U.S. ___, 134 S.Ct.

2724 (2014).         Thus, the Pennsylvania Supreme Court’s decision in

Cunningham is final and binding. Accordingly, Miller does not qualify as

an exception to the PCRA time bar.

       Consequently, the PCRA court lacked jurisdiction ab initio to entertain

Appellee’s second PCRA petition and to grant relief because Appellee filed

that petition more than one year after his judgment of sentence became

final and failed to prove a statutory timeliness exception.      42 Pa.C.S. §

9545(b)(1).      A judgment or decree rendered by a court, which lacks

jurisdiction of the subject matter or of the person, is null and void.

Commonwealth v. Schmotzer, 831 A.2d 689, 695 n.2 (Pa. Super. 2003).

As a result, the PCRA court lacked authority to grant relief.4 Thus, the relief

granted by the PCRA court in its order of September 30, 2013, was done

without authority and is a nullity. Therefore, we are constrained to hold that

the judgment of sentence entered on June 24, 2014, predicated upon the

improper order of the PCRA court, is likewise a nullity. Hence, we vacate the
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4
  This is so regardless of the fact that the Commonwealth failed to perfect an
appeal from the order of the PCRA court. See Borrero, 692 A.2d at 159
(reiterating that jurisdiction cannot be conferred by mere agreement or
silence of the parties where it is otherwise nonexistent).



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judgment of sentence entered on June 24, 2014, as well as the order of

September 30, 2013, granting PCRA relief.      Furthermore, we remand this

matter to the lower court to reinstate the original judgment of sentence

imposed upon Appellee.

      Judgment of sentence vacated.      Case remanded with instructions.

Jurisdiction relinquished.

      Judge Panella joins the Memorandum.

     Judge Ott files a Concurring Statement.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/24/2015




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