J-S43020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

WILFREDO CABALLERO,

                          Appellant                    No. 1894 MDA 2015


               Appeal from the Order entered October 20, 2015
                 In the Court of Common Pleas of York County
             Criminal Division, at No(s): CP-67-CR-0000727-1989


BEFORE: GANTMAN, P.J., PANELLA J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                        FILED SEPTEMBER 23, 2016

        This is an appeal by the Commonwealth of Pennsylvania from the

order    granting   Wilfredo   Caballero   (“Caballero”)   post-conviction   relief

pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.

        In 1990, Appellant, who was fourteen years old at the time of the

offense, was convicted of first-degree murder as a result of his participation

in the killing of the victim. The trial court sentenced him to life in prison

without the possibility of parole. We affirmed Appellant’s judgment of

sentence, and our Supreme Court denied allowance of appeal.                   See

Commonwealth v. Caballero, 595 A.2d 189 (Pa. Super. 1991) (Table),

appeal denied, 123 M.D. Allocatur Dkt. 1991. In the decades that followed,

Caballero unsuccessfully sought post-conviction relief by filing five PCRA

petitions.
J-S43020-16



      Appellant filed the PCRA petition at issue here on August 21, 2012,

asserting that his sentence was illegal pursuant to Miller v. Alabama, 123

S.Ct. 2455 (2012). In response to the PCRA court’s notice of intent to

dismiss without a hearing, Caballero’s counsel asked the PCRA court to await

our Supreme Court’s decision in Commonwealth v. Cunningham, 51 A.3d

178 (Pa. 2012) (order granting petition for allowance of appeal).

      On October 30, 2013, our Supreme Court filed its decision in

Cunningham, determining that Miller did not apply retroactively to cases

on collateral appeal. See 81 A.3d 1 (Pa. 2013). On November 12, 2013, the

Commonwealth filed a motion to dismiss based upon the Cunningham

ruling. Caballero’s counsel filed a motion to amend the PCRA petition and a

motion to stay. On November 21, 2013, the PCRA court denied Caballero’s

petition. Caballero filed a timely appeal to this Court.     In an unpublished

memorandum, we remanded so that the PCRA court could consider

Caballero’s motion to amend. See Commonwealth v. Caballero, 106 A.3d

169 (Pa. Super. 2014) (Table).

      Following remand, the PCRA court granted Caballero’s motion to

amend. Following oral argument on September 20, 2015, the PCRA court

took the matter under advisement. By order entered October 20, 2015, the

PCRA court granted Caballero’s petition by concluding that the inequity

created by the Cunningham decision in the treatment of juvenile offenders

was   “not   permissible   under   the   more   protective   standards   of   the




                                     -2-
J-S43020-16



Pennsylvania Constitution.” Order, 10/20/15, at 2. The Commonwealth filed

this timely appeal.

      While this appeal was pending, Miller was held to be retroactive by

the United States Supreme Court in Montgomery v. Louisiana, 136 S.Ct.

718 (2016). In Commonwealth v. Secreti, 134 A.3d 77 (Pa. Super. 2016),

this Court held that, in light of the Montgomery decision, Miller applied

retroactively to Secreti’s sentence even though it was on collateral appeal,

that he therefore met the pertinent PCRA’s time bar exception, and that he

was entitled to a new sentencing hearing in accordance with the directives of

our Supreme Court’s decision in Commonwealth v. Batts, 66 A.3d 286

(Pa. 2013). Caballero is entitled to the same disposition.

      Accordingly, we affirm in part and reverse in part the PCRA order.

Specifically, we reverse that part of the PCRA court’s order granting

Caballero relief under our state constitution. See Commonwealth v.

Kennedy,        604   A.2d   1036,   1038-39   (Pa.   Super.   1990)   (noting

Pennsylvania’s long standing practice of avoiding constitutional issues when

alternative bases exist). Caballero is entitled to sentencing relief—under

Miller and Montgomery. We vacate his original judgment of sentence.

      Caballero has filed an application for remand in light of Montgomery.

Given our disposition, we deny the application as moot.

      Order reversed in part and affirmed in part. Judgment of sentence

vacated. Application denied. Case remanded for re-sentencing. Jurisdiction

relinquished.

                                      -3-
J-S43020-16



     President Judge Gantman joins the memorandum.

     Judge Jenkins concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/23/2016




                                   -4-
