J-S66027-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                        Appellee         :
                                         :
              v.                         :
                                         :
OSCAR MANUEL MARTINEZ,                   :
                                         :
                        Appellant        :    No. 871 MDA 2014


              Appeal from the PCRA Order Entered April 28, 2014,
              In the Court of Common Pleas of Lancaster County,
               Criminal Division, at No. CP-36-CR-0002587-2011.

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED OCTOBER 28, 2014

      Oscar Manuel Martinez (“Appellant”) appeals from the order denying

his petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. In addition, counsel has filed a petition

seeking to withdraw. We grant counsel’s motion to withdraw and affirm the

order of the PCRA court.

      The PCRA Court summarized the history of this case, in relevant part,

as follows:

            Pursuant to the negotiated [plea] agreement, [the trial
      court] imposed the mandatory sentence of life in prison without
      parole for the first degree murder [charge], and a concurrent
      sentence of 20 to 40 years’ incarceration for the criminal
      conspiracy charge [on August 1, 2011]. Neither post sentence
      motions nor a direct appeal to the Superior Court of
      Pennsylvania was filed by [Appellant].
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              On December 28, 2013, [Appellant], acting pro se, filed a
       motion for leave to file an amended petition for post conviction
       collateral relief.[1] Pursuant to Rule 904(A) of the Pennsylvania
       Rules of Criminal Procedure, [counsel] was appointed to
       represent [Appellant] on his collateral claims and was granted
       60 days leave to file an amended petition, if appropriate.

              After receiving an extension of time, an amended petition
       was filed by counsel on March 10, 2014. Upon review of the pro
       se and amended petitions, and the entire record in this case,
       [the PCRA court] found that there [were] no disputed issues of
       fact, that [Appellant was] not entitled to post conviction
       collateral relief, and that no purpose [would] be served by any
       further proceedings.      Therefore, pursuant to Pa. R.Crim.P.
       907(1), [the PCRA court] gave notice to [Appellant] on March
       27, 2014, of [its] intent to deny his second amended PCRA
       petition for these reasons, and because the petition was not
       timely filed pursuant to Pa.C.S.A. § 9545(b), and [Appellant]
       failed to plead and prove any of the exceptions set forth in §
       9545(b)(1)(i-iii) to the timeliness requirement. [Appellant] was
       given 21 days to respond to the Rule 907 Notice. No response
       has been filed.

PCRA Court Opinion, 4/28/14, at 2–3.




1
    Regarding Appellant’s petitions, the PCRA court noted:

              The initial pro se pleading is actually captioned “Motion for
       Leave to Amend Petition Petition [sic] for Habeas Corpus Relief
       Under Article 1, Section 14 of the Pennsylvania Constitution and
       for Post-Conviction Relief Under the Post Conviction Relief Act Et
       Seq.” This pleading, which appears to be a fill-in-the-blank
       form, asserts that [Appellant] has “previously filed” a petition for
       relief and that this pleading is an “amended petition.” The
       official file maintained by the Clerk of Courts contains, however,
       no previously filed PCRA or habeas corpus petition. Still, court-
       appointed PCRA counsel titled his petition as a “second amended
       post-conviction relief act petition.”

PCRA Court Opinion, 4/28/14, at 1 n.1 (“[sic]” in original).

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        The PCRA court dismissed the petition as untimely on April 28, 2014.

This appeal followed. Appellant and the PCRA court complied with Pa.R.A.P.

1925.

        On August 13, 2014, Appellant’s PCRA counsel filed an application to

withdraw pursuant to the Turner/Finley2 formula. When counsel seeks to

withdraw representation in a collateral appeal, the following conditions must

be met:

        1)   As part of an application to withdraw as counsel, PCRA
        counsel must attach to the application a “no-merit” letter[;]

        2)    PCRA counsel must, in the “no-merit” letter, list each claim
        the petitioner wishes to have reviewed, and detail the nature
        and extent of counsel’s review of the merits of each of those
        claims[;]

        3)    PCRA counsel must set forth in the “no-merit” letter an
        explanation of why the petitioner’s issues are meritless[;]

        4)     PCRA counsel must contemporaneously forward to the
        petitioner a copy of the application to withdraw, which must
        include (i) a copy of both the “no-merit” letter, and (ii) a
        statement advising the PCRA petitioner that, in the event the
        trial court grants the application of counsel to withdraw, the
        petitioner has the right to proceed pro se, or with the assistance
        of privately retained counsel;

        5)    The court must conduct its own independent review of the
        record in light of the PCRA petition and the issues set forth
        therein, as well as of the contents of the petition of PCRA
        counsel to withdraw; and

2
   Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). Mistakenly, counsel
refers to the controlling authority as Turner/Friend.       Application to
Withdraw as Counsel, 8/13/14, at ¶ 2. The case of Commonwealth v.
Friend, 896 A.2d 607 (Pa. Super. 2006), is a post-Turner/Finley decision.

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      6)    The court must agree with counsel that the petition is
      meritless.

Commonwealth v. Daniels, 947 A.2d 795, 798 (Pa. Super. 2008) (internal

punctuation marks omitted) (citing Commonwealth v. Friend, 896 A.2d

607, 615 (Pa. Super. 2006)).

      In the present case, counsel has complied with the requirements for

withdrawal from a collateral appeal. In the application filed with this Court,

counsel alleged that he has reviewed and evaluated the case and concluded

that the appeal is frivolous.    Counsel has also set forth an issue and

explained why, in his opinion, it lacks merit.     In addition, counsel has

included a letter sent to Appellant containing a copy of his application to

withdraw and a statement advising Appellant of his right to proceed pro se

or through privately retained counsel.      Thus, we will allow counsel to

withdraw if, after our review, we conclude that the issue relevant to this

appeal lacks merit.

      PCRA counsel presents the following question on behalf of Appellant:

      Whether the post-conviction court erred when it denied relief on
      Appellant’s claim that the mandatory sentence of life
      imprisonment without parole was imposed illegally?

Appellant’s Brief at 2.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31



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A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).      The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

      Initially, we consider the PCRA court’s determination that Appellant’s

petition was untimely. PCRA Court Opinion, 4/28/14, at 8. A PCRA petition

must be filed within one year of the date that the judgment of sentence

becomes final.    42 Pa.C.S.A. § 9545(b)(1).       This time requirement is

mandatory and jurisdictional in nature and the court may not ignore it in

order to reach the merits of the petition. Commonwealth v. Murray, 753

A.2d 201, 203 (Pa. 2000). 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.A. § 9545(b)(3).

      Our review of the record reflects that Appellant’s judgment of sentence

became final on August 31, 2011, thirty days after the trial court imposed

the judgment of sentence and Appellant failed to file a direct appeal with this

Court. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Thus, in order to

be timely, Appellant needed to file his PCRA petition on or before August 31,




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2012.     Appellant did not file the instant PCRA petition until December 26,

2013. Accordingly, Appellant’s PCRA petition is patently untimely.

        However, the PCRA court may receive an untimely petition 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.A. §

9545(b)(1)(i), (ii), and (iii), is met.3    A petitioner invoking one of these

exceptions must file his petition within sixty days of the date the claim could

first have been presented.      42 Pa.C.S.A. § 9545(b)(2).      In order to be

entitled to the exceptions to the PCRA’s one-year filing deadline, “the

petitioner must plead and prove specific facts that demonstrate his claim




3
    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.A. § 9545(b)(1)(i), (ii), and (iii).



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was raised within the sixty-day time frame” under section 9545(b)(2). Carr,

768 A.2d at 1167.

      Our review of the record reflects that Appellant 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). Specifically, Appellant asserted

that the United States Supreme Court decision in Miller v. Alabama, ___

U.S. ___, 132 S.Ct. 2455 (2012), provides him relief.4        Second Amended

Petition, 3/10/14, at ¶¶ 7, 8.   Therein, the U.S. Supreme Court held that

“mandatory life-without-parole sentences for juveniles” violate the Eighth

Amendment’s prohibition of cruel and unusual punishment.            Miller, 132

S.Ct. at 2463–2464.

      Appellant does not qualify for relief under the third exception to the

timeliness requirement on two fronts.       First, Appellant did not satisfy the

sixty–day requirement set forth in section 9545(b)(2).           To fulfill that

requirement, Appellant needed to file his PCRA petition within sixty days

from the date of the U.S. Supreme Court’s decision in Miller.              See


4
   As the PCRA court observed, Miller v. Alabama and Jackson v. Hobbs,
“were decided together in a single opinion, for which there is a single
citation.” PCRA Court Opinion, 4/28/14, at 5 n. 6.



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Commonwealth v. Baldwin, 789 A.2d 728, 730-731 (Pa. Super. 2001)

(reiterating that PCRA petition claiming exception to timeliness requirement

based upon constitutional right newly recognized by United States Supreme

Court or Pennsylvania Supreme Court must be presented within sixty days of

newly published decision).     The U.S. Supreme Court filed its decision in

Miller on June 25, 2012.        Appellant filed his initial pro se petition on

December 26, 2013. Thus, the petition was untimely on this basis.

      Second, our recent decision in Commonwealth v. Cintora, 69 A.3d

759 (Pa. Super. 2013), negates Appellant’s claim that Miller affords him

relief under section 9545(b)(1)(iii).

            In Miller, the Supreme Court of the United States
      recognized a constitutional right for juveniles under the age of
      eighteen, holding that “mandatory life without parole for those
      under the age of 18 at the time of their crimes violates the
      Eighth Amendment’s prohibition against ‘cruel and unusual
      punishments.’” Miller, supra at 2460. Here, Appellants Jesus
      and Oscar were twenty-one and nineteen years old, respectively,
      when they committed the underlying crimes. . . Therefore, the
      holding in Miller does not create a newly-recognized
      constitutional right that can serve as the basis for relief for
      Appellants. See 42 Pa.C.S. § 9545(b)(1)(iii); Miller, supra at
      2460.

Cintora, 69 A.3d at 764.

      Here, the PCRA court found, and the record confirms, that Appellant

was “not a juvenile at the time of his crimes, but rather was an 18-year-old

adult. . . [He] was 18 years, 10 months and 21 days old on the date of the

offense.” PCRA Court opinion, 4/28/14, at 5, n.7; Second Amended Petition,


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3/10/14, at ¶¶ 7, 8; Criminal Complaint, 4/20/11, at 1, 4.        Additionally,

although the retroactivity of Miller was under review when we filed Cintora,

that issue was resolved when the U.S. Supreme Court denied certiorari on

June 9, 2014, in Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013),

cert. denied, ___ U.S. ___, 134 S.Ct. 2724 (2014), letting stand the

Pennsylvania Supreme Court’s ruling that Miller would not be applied

retroactively in PCRA cases.    Therefore, Miller does not create a newly

recognized constitutional right that can serve as the basis for PCRA relief for

Appellant. Cintora, 69 A.3d at 764.

      Consequently, because the PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address any claims

presented and grant relief.    See Commonwealth v. Fairiror, 809 A.2d

396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to

hear untimely petition). Likewise, we lack jurisdiction to reach the merits of

the appeal. See Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa.

Super. 2002) (holding that Superior Court lacks jurisdiction to reach merits

of appeal from untimely PCRA petition).

      Finally, having conducted an independent review of the record in light

of the PCRA petition and the arguments set forth therein, as well as the

contents of counsel’s motion to withdraw, we agree with counsel that the




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petition is meritless.    Daniels, 947 A.2d at 798.   Accordingly, we allow

counsel to withdraw.

      Order affirmed. Motion to withdraw granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/28/2014




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