J-S50044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

FERNANDO NUNEZ

                            Appellant                No. 3200 EDA 2014


                  Appeal from the PCRA Order October 22, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0402401-2014


BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

JUDGMENT ORDER BY JENKINS, J.:                  FILED FEBRUARY 10, 2016

        Appellant Fernando Nunez appeals from the order entered in the

Philadelphia County Court of Common Pleas, which denied his petition filed

for relief pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        On November 16, 2005, the trial court sentenced Appellant to life

imprisonment for committing a murder when he was 16 years old.                On

December 23, 2008, this Court affirmed his judgment of sentence.          The

Pennsylvania Supreme Court denied his petition for allowance of appeal on

July 27, 2009. On February 12, 2010, Appellant timely filed his first PCRA

petition, which the PCRA court denied on December 2, 2011.          On January


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1
    42 Pa.C.S. §§ 9541-9546.
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14, 2014, this Court affirmed the order denying Appellant’s first PCRA

petition.

        On April 1, 2014, Appellant filed the instant pro se PCRA petition

alleging Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455 (2012) announced

a newly discovered constitutional right that should apply retroactively to his

case.

        Before we address the merits of Appellant’s claims, we must

determine whether his PRCA petition was timely. The timeliness of a PCRA

petition implicates the jurisdiction of both this Court and the PCRA court.

Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal

denied, 50 A.3d 121 (Pa.2012).        “Pennsylvania law makes clear that no

court has jurisdiction to hear an untimely PCRA petition.”    Id. To “accord

finality to the collateral review process[,]” the PCRA “confers no authority

upon [appellate courts] to fashion ad hoc equitable exceptions to the PCRA

timebar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011). With

respect to jurisdiction under the PCRA, this Court has further explained:

            The most recent amendments to the PCRA...provide a
            PCRA petition, including a second or subsequent petition,
            shall be filed within one year of the date the underlying
            judgment becomes final. A judgment is deemed 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.

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)

(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011);

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see also 42 Pa.C.S. § 9545. This Court may review a PCRA petition filed

more than one year after the judgment of sentence becomes final only if the

claim falls within one of the following three statutory exceptions, which the

petitioner must plead and prove:

            (i) the failure to raise the claim 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).       Further, if a petition pleads one of these

exceptions, the petition will not be considered unless it is “filed within 60

days of the date the claim could have been presented.” 42 Pa.C.S. §

9545(b)(2). When a petitioner asserts the new constitutional right exception

to the PCRA time bar, he must file his PCRA petition within 60 days of the

decision of the Supreme Court of the United States or the Supreme Court of

Pennsylvania which has held the newly recognized constitutional right to

apply retroactively.   See Commonwealth v. Chambers, 35 A.3d 34, 39

(Pa.Super.2011), appeal denied, 46 A.3d 715 (Pa.2012).




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       Here, Appellant’s judgment of sentence became final on October 27,

2009, when his time to appeal to the United States Supreme Court expired.

See Monaco, supra. Accordingly, he had until October 27, 2010 to file a

timely PCRA petition. 42 Pa.C.S. § 9545(b)(1). Appellant filed the instant

pro se PCRA petition on April 1, 2014.           Thus, his PCRA petition is facially

untimely, and we must determine whether Appellant has pled and proved

any of the exceptions to the PCRA time limitation within 60 days of the date

the claim could have been presented. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii),

(b)(2).

       Appellant attempts to invoke the new constitutional right exception to

the PCRA time bar by arguing that Miller applies retroactively to his case.

Unfortunately, Appellant did not file his PCRA petition within 60 days of the

Miller decision or the date that this Court affirmed the PCRA order denying

his first PCRA petition.2 Thus, his petition is time barred.

       Order affirmed.




____________________________________________


2
  Fortunately for Appellant, he may still file a PCRA petition within 60 days of
the decision in Montgomery v. Louisiana, __ U.S. __, 2016 WL 280758
(filed January 25, 2016), which held that Miller applies retroactively to
cases on collateral appeal.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2016




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