J-A13025-15


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, J., SHOGAN, J., and OTT, J.

CONCURRING STATEMENT BY OTT, J.:                     FILED JUNE 24, 2015

      I agree with the determination of the Majority that the PCRA court had

no jurisdiction to resentence Machicote, and, accordingly, we are compelled

to vacate the June 24, 2014, judgment of sentence and remand for

reinstatement of his original sentence.

      Nevertheless, I write separately to note that, in my opinion,

Machicote’s August 22, 2012, PCRA petition was timely filed, pursuant to the

“new constitutional right” exception to the timeliness requirements, because

his second petition was filed within 60 days of the United States Supreme

Court’s decision in Miller.    See 42 Pa.C.S. § 9545(b)(1)(iii).   However,

before Machicote was resentenced, the Pennsylvania Supreme Court decided

Cunningham, and held that the United States Supreme Court’s decision in

Miller did not apply retroactively.   Therefore, at the time of Machicote’s

resentencing hearing, the trial court had no jurisdiction due to the

intervening change in the law.

      Accordingly, I concur.
