J-S78026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 FIDEL SANTIAGO                          :
                                         :
                   Appellant             :   No. 3617 EDA 2017

         Appeal from the PCRA Order Entered September 22, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0420121-1990


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

MEMORANDUM BY McLAUGHLIN, J.:                        FILED APRIL 08, 2019

     Fidel Santiago appeals from the order denying his petition filed under

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

petition was untimely, we affirm.

     Following a non-jury trial in 1990, Santiago was convicted of first-degree

murder and related charges, and sentenced to life imprisonment in 1992. We

affirmed his judgment of sentence in 1996, and the Supreme Court denied his

appeal in 1997. Commonwealth v. Santiago, 687 A.2d 860 (Pa.Super.

1996); Commonwealth v. Santiago, 700 A.2d 440 (Pa. 1997).




____________________________________
* Former Justice specially assigned to the Superior Court.
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       Santiago filed the instant PCRA Petition pro se in 2012.1 The PCRA court

appointed counsel, who filed a Turner/Finley2 letter and motion to withdraw.

The PCRA court then issued notice of its intent to dismiss the Petition without

a hearing, styled as a letter addressed to Santiago. The notice stated that the

court was dismissing the Petition “for reasons outlined in the Finley Letter

submitted by [Santiago’s] attorney,” those being that the Petition was

untimely and failed to satisfy any exception to the PCRA time-bar.

Pa.R.Crim.P. 907 Notice at 1. Santiago filed a pro se response to the notice.

The court dismissed the Petition and granted counsel’s request to withdraw on

September 22, 2017.3 Santiago filed a timely notice of appeal pro se.




____________________________________________


1 The PCRA court issued notice of its intent to dismiss the Petition in 2016,
and Santiago filed a notice of appeal from the notice of dismissal. We quashed
that appeal as interlocutory, as no final order had been entered disposing of
the Petition. See Commonwealth v. Santiago, No. 2001 EDA 2016
(Pa.Super.) (Order filed August 30, 2016).

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

3 Although there is no copy of an order explicitly granting counsel’s withdraw
request in the certified record, the docket entry relating to the dismissal order
states “PCRA Petition is Formall[y] Dismissed as Untimely[.] Attorney
Permitted to withdraw as counsel[.]” Docket Entry No. 43. Moreover, the order
dismissing the Petition informed Santiago that he “may proceed on appeal on
a pro se basis or with retained counsel,” thus implying the court had permitted
Santiago’s appointed counsel to withdraw. We also note that Santiago was
apprised, via the dismissal notice, that the court had approved the
Turner/Finley letter, and Santiago thereafter filed, pro se, a response to the
notice, notice of appeal, Pa.R.A.P. 1925(b) statement, and appellate
documents in this Court.

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       Santiago raises the following issue:

       Whether failure for the court to [undertake] in the ruling to
       address that [Miller v. Alabama, 567 U.S. 460 (2012)] drew a
       line at 18 year old violated his rights under the Fourteenth
       Amendment to the U.S. Constitution and Art. 1 sec. 13 of the
       Pennsylvania Constitution pursuant to [Miller] and Montgomery
       v. Louisiana, 136 S. Ct. 718 (2016). [sic]

Santiago’s Br. at 2.

       This Court’s standard of review for the denial of a PCRA petition entails

only “examining whether the PCRA court’s determination is supported by

evidence of record and whether it is free of legal error.” Commonwealth v.

Jordan, 182 A.3d 1046, 1049 (Pa.Super. 2018).

       The timeliness of a PCRA petition is a jurisdictional prerequisite.

Commonwealth v. Lee, ___ A.3d. ___, 2019 PA Super 64 (filed March 1,

2019) (en banc). A petition must be filed within one year of the date that the

petitioner’s judgment of sentence became final, unless one of the three

exceptions to the time-bar applies. 42 Pa.C.S.A. § 9545(b)(1). At the time

Santiago filed his Petition, the PCRA required that a petition invoking any of

the exceptions to the time-bar be filed within 60 days of when the exception

became applicable. Id. at § 9545(b)(2).4 One of the exceptions, at issue here,

applies where “the right asserted [in the petition] is a constitutional right that

____________________________________________


4 This subsection has since been amended, and the amendment made
applicable to claims arising on or after December 24, 2017, to allow a petition
invoking an exception to be filed within one year of the date the claim could
have been presented. See Lee, 2019 PA Super 64 at *5 n.8.


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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 § 9545(b)(1)(iii).

       Here, Santiago’s judgment of sentence became final in 1997, and thus

his 2012 Petition is facially untimely. Id. at § 9545(b)(3). However, Santiago

filed his Petition on August 14, 2012, within 60 days of the June 25, 2012

Miller decision. Miller held that sentences of life without parole are

unconstitutional when mandatorily imposed on juveniles; Montgomery has

since held that Miller applies retroactively to cases on collateral review.

Santiago argues that the court erred in dismissing his Petition because it is

timely in wake of the Miller and Montgomery decisions.5

       However, as Santiago acknowledges, he had attained the age of 18 by

the time he committed the crimes for which he was sentenced. See Santiago’s

Reply Br. at 4. The rule announced in Miller therefore does not apply to

Santiago’s sentence. Lee, 2019 PA Super 64 at *9 (reaffirming that “age is

the sole factor in determining whether Miller applies to overcome the PCRA

time-bar and we decline to extend its categorical holding”).

       We thus hold the PCRA court did not err in concluding that Santiago’s

Petition was untimely, and dismissing it on that basis.

       Order affirmed.



____________________________________________


5As it predated the Montgomery decision, the Petition referenced only
Miller.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/8/19




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