J-S87043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WILSON HERNANDEZ

                            Appellant                 No. 368 MDA 2016


                Appeal from the PCRA Order February 22, 2016
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0002927-1994


BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED JANUARY 10, 2017

        Wilson Hernandez appeals from the order entered in the Court of

Common Pleas of Luzerne County, dismissing his petition filed pursuant to

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

Hernandez’s counsel has filed a petition to withdraw and a no-merit brief.

After careful review, we grant counsel’s petition to withdraw and affirm the

PCRA court’s order.

        On June 28, 2001, Hernandez was convicted of second-degree murder,

robbery and criminal conspiracy1 stemming from an incident in which he and




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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a co-defendant beat another man to death in the victim’s own basement.

Hernandez filed this, his second2 PCRA petition, on September 5, 2012.

Counsel was appointed and filed a “Motion to Appoint Expert” asserting that,

although Hernandez was not a juvenile at the time of the offense, the

reasoning of the Supreme Court’s decision in Miller v. Alabama, 312 S.Ct.

2455 (2012), should be applied to his case and his sentence should be

vacated.    The court scheduled a hearing on Hernandez’s PCRA petition.

However, on April 22, 2013, the court issued an order generally continuing

the hearing due to the pendency of cases before the Pennsylvania appellate

courts addressing the retroactive application of Miller to cases filed under

the PCRA, because the outcome of the cases could potentially impact the

disposition of Hernandez’s claims.

      Hernandez’s case was subsequently reassigned to the Honorable Fred

A. Pierantoni, Jr., who scheduled a status conference for December 2, 2015.

Following the conference, the parties agreed to stipulate that Hernandez was

18 years old at the time he committed his crime. Thereafter, by opinion and
                       _______________________
(Footnote Continued)
1
 Hernandez had previously been tried and convicted of the same charges in
1995, but his conviction was overturned on appeal and he was granted a
new trial.
2
  In his response to counsel’s Turner/Finley brief, Hernandez asserts that
he filed a second PCRA petition on October 7, 2011. See Commonwealth
v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988). However, that petition is not contained in the
certified record.




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order dated January 22, 2016, the court dismissed Hernandez’s PCRA

petition, citing, inter alia, the fact that Hernandez was 18 at the time he

committed his crime.3 This timely appeal follows, in which counsel has filed

a petition to withdraw.

       When     counsel     seeks    to   withdraw,   we   first   review   counsel’s

submissions, as follows:

          Counsel petitioning to withdraw from PCRA representation
          must proceed . . . under Commonwealth v. Turner, 544
          A.2d 927 (Pa. 1998), and Commonwealth v. Finley, 550
          A.2d 213 (Pa. Super. 1988). . . . Turner/Finley counsel
          must review the case zealously. See Commonwealth v.
          Mosteller, 633 A.2d 615, 617 (Pa. Super. 1993).
          Turner/Finley counsel must then submit a “no-merit”
          letter to the trial court, or brief on appeal to this Court,
          detailing the nature and extent of counsel’s diligent review
          of the case, listing the issues which the petitioner wants to
          have reviewed, explaining why and how those issues lack
          merit,    and     requesting    permission    to    withdraw.
          Commonwealth v. Karanicolas, 836 A.2d 940, 947 (Pa.
          Super. 2003).

          Counsel must also send to the petitioner: (1) a copy of
          the “no merit” letter/brief; (2) a copy of counsel’s petition
          to withdraw; and (3) a statement advising petitioner of the
          right to proceed pro se or by new counsel.
____________________________________________


3
  In denying Hernandez relief, the PCRA court also noted that Miller was not
retroactively applicable to cases on collateral review. At the time the PCRA
court issued its decision in this matter, that was an accurate statement of
the law, pursuant to our Supreme Court’s holding in Commonwealth v.
Cunningham, 81 A.3d 1 (Pa. 2013). Subsequently, however, the U.S.
Supreme Court decided Montgomery v. Louisiana, 136 S.Ct. 718 (2016),
in which it held that Miller announced a new substantive constitutional rule
that was, in fact, retroactive on state collateral review.        Accordingly,
Cunningham was effectively overruled.



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          Commonwealth v. Friend, 896 A.2d 607, 615 (Pa.
          Super. 2006).

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007).

       Here, counsel has complied with the Turner/Finley requirements.

Hernandez filed a response to counsel’s motion to withdraw, in which he

claims that counsel’s submissions pursuant to Turner and Finley are

deficient.   This claim is meritless.4         Hernandez also raises certain claims

based on a prior PCRA petition he claims was filed on October 7, 2011.

However, such a petition does not appear in the certified record, and

Hernandez did not raise those claims in the PCRA petition currently before

us.   Accordingly, the claims are not properly before us.            See Pa.R.A.P.

302(a) (“Issues not raised in the lower court are waived and cannot be

raised for the first time on appeal.”).

       Counsel having complied with the requirements of Turner/Finley, we

proceed to our own independent review of Hernandez’s issues to determine

whether they are truly meritless.
____________________________________________


4
  Hernandez asserts that counsel’s submissions “do not detail the nature of
review counsel conducted, list each of the issues [Hernandez] wishes to
have reviewed by the Court and explain the reasons the issues are without
merit.” Objection to Turner/Finley Brief, October 11, 2016, at ¶ 2. These
assertions are without merit. In his petition to withdraw, counsel avers that
he reviewed the record in this matter. The Turner/Finley brief lists the two
issues Hernandez sought review of, both of which invoke the U.S. Supreme
Court’s ruling in Miller. Finally, in the argument section of the brief, counsel
explains his conclusion that Hernandez’s issues are frivolous because Miller
applies only to defendants who were under the age of 18 at the time they
committed their offense.



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     The PCRA court dismissed Hernandez’s petition as untimely filed.     A

PCRA petition, including a second or subsequent petition, must be filed

within one year of the date the underlying judgment of sentence becomes

final. See 42 Pa.C.S.A. § 9545(b)(1); see also Commonwealth v. Bretz,

830 A.2d 1273, 1275 (Pa. Super. 2003). 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 review.” 42 Pa.C.S.A. § 9545(b)(3); see also

Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super. 2006).

Here, Hernandez’s judgment of sentence became final on June 29, 2002,

upon the expiration of time for seeking allowance of appeal to the

Pennsylvania Supreme Court.     See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P.

1113(a). Thus, Hernandez had one year from that date, or until June 29,

2003, to file a timely PCRA petition.       See 42 Pa.C.S.A. § 9545(b).

Hernandez did not file the instant petition until September 5, 2012, more

than ten years after his judgment of sentence became final.     Accordingly,

the PCRA court had no jurisdiction to entertain Hernandez’s petition unless

he pleaded and proved one of the three statutory exceptions to the time bar.

See 42 Pa.C.S.A. § 9545(b)(1). A petition invoking one of the exceptions

must be filed within sixty days of the date the claim could have been

presented. 42 Pa.C.S.A. § 9545(b)(2).




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      Hernandez attempts to circumvent the time bar by asserting the “new

constitutional right” exception under subsection 9545(b)(1)(iii). Specifically,

Hernandez claims that the Supreme Court’s holding in Miller prohibits the

imposition of a mandatory life sentence in his case because “[a]ll of the

characteristics and circumstances attendant to his youth did not disappear

when [he] turned 18.” PCRA Petition, 9/5/12, at 8a. However, as both the

PCRA court and counsel properly conclude, the high court’s ruling in Miller

applies solely to defendants who had not reached the age of majority, or 18

years of age, at the time they committed their crime, and this Court has

previously declined to extent PCRA relief under Miller to defendants 18

years of age and older. See Commonwealth v. Cintora, 69 A.3d 759, 764

(Pa. Super. 2013) (contention that a newly-recognized constitutional right

should be extended to others does not render their petition timely pursuant

to   section   9545(b)(1)(iii)).   Accordingly,   Miller   is   inapplicable   to

Hernandez’s case and the PCRA court properly dismissed his petition as

untimely.

      Order affirmed. The Petition to Withdraw is granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/2017

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