J-S05046-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOSE GUADELUPE CRUZ,

                            Appellant                No. 1224 MDA 2016


              Appeal from the PCRA Order Entered June 23, 2016
                In the Court of Common Pleas of Adams County
              Criminal Division at No(s): CP-01-CR-0000204-1993


BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                        FILED MARCH 02, 2017

        Appellant, Jose Guadalupe Cruz, appeals from the trial court’s June 23,

2016 order dismissing, without a hearing, his petition filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–9546. In addition,

Appellant’s counsel, Jamison Entwistle, Esq., petitions this Court for leave to

withdraw as counsel pursuant to Commonwealth v. Turner, 544 A.2d 927

(Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1988).      Because we determine that we lack jurisdiction due to the

untimeliness of Appellant’s petition, we affirm the PCRA court’s order and

grant counsel’s petition to withdraw.



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S05046-17



       On October 13, 1994, Appellant pled nolo contendere to three counts

of second degree murder, 18 Pa.C.S. § 2502(b). On that same day, he was

sentenced to three consecutive terms of life imprisonment without the

possibility of parole.     He did not file a post-sentence motion or a direct

appeal, and his judgment of sentence became final on November 14, 1994.

See 42 Pa.C.S. § 9545(b)(3) (stating that judgment of sentence becomes

final at the conclusion of direct review or the expiration of the time for

seeking the review); Pa.R.A.P. 903(a) (directing that a notice of appeal to

Superior Court must be filed within 30 days after the entry of the order from

which the appeal is taken).1

       Since that time, Appellant has filed two PCRA petitions, which were

ultimately denied. On March 21, 2016, Appellant filed a third, pro se PCRA

petition, which forms the basis of this appeal.      In this present petition,

____________________________________________


1
  Our review of the record shows that the thirtieth day after the entry of
Appellant’s judgment of sentence — which would ordinarily constitute the
last day of the appeal period pursuant to Pa.R.A.P. 903 — fell on Saturday,
November 12, 1994. We must omit that day and the following day, Sunday,
November 13, 1994, from our computation of the appeal period. See
Pa.R.A.P. 107 (“Chapter 19 of Title 1 of the Pennsylvania Consolidated
Statutes (rules of construction) so far as not inconsistent with any express
provision of these rules, shall be applicable to the interpretation of these
rules and all amendments hereto to the same extent as if these rules were
enactments of the General Assembly.”); see also 1 Pa.C.S. § 1908
(“Whenever the last day of any such period shall fall on Saturday or Sunday,
or on any day made a legal holiday by the laws of this Commonwealth or of
the United States, such day shall be omitted from the computation.”).
Therefore, the last day of the thirty-day appeal period fell on Monday,
November 14, 1994.



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Appellant sought to withdraw his pleas of nolo contendere and argued that

his sentences of life imprisonment without the possibility of parole must be

vacated based on the Supreme Court’s holding in Miller v. Alabama, 132

S.Ct. 2455, 2460 (2012) (stating that “mandatory life without parole for

those under the age of 18 at the time of their crimes violates the Eighth

Amendment’s prohibition on ‘cruel and unusual punishments’”).                  See

“Petition   for   Relief   under   42   Pa.C.S.[]   §   9545,”   3/21/2016,   at   1

(unnumbered pages). In short, Appellant, who was 20 years old at the time

of his crimes, claims that Miller should apply to him because he “suffered

chronic traumatic abuse throughout childhood and adolescence[,] which

delayed the physical maturity of [his] brain[.]” Id. at 2.

      In response, the PCRA court gave Pa.R.Crim.P. 907 notice on May 5,

2016, that it intended to dismiss Appellant’s PCRA petition without a hearing

because it lacked jurisdiction pursuant to 42 Pa.C.S. § 9545. On May 20,

2016, Appellant submitted a pro se response, in which he asserted, inter

alia, that the PCRA court, in fact, had jurisdiction because he filed his

petition within sixty days from the date of the United States Supreme

Court’s decision in Montgomery v. Louisiana, 136 S.Ct. 718 (2016), which

held that Miller applies retroactively. See Appellant’s “Application for Relief

in Response to Forty-Five Day Notice of Intent to Dismiss,” 5/20/2016, at 1




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(unnumbered pages).2          Subsequently, on June 23, 2016, the PCRA court

dismissed Appellant’s PCRA petition without a hearing, explaining that the

petition “has not been filed within one year of the date of judgment

becoming final nor has [Appellant] specifically pled an exception to the

jurisdictional time limits.”        See PCRA Court Order, 6/23/2016.       More

specifically, the PCRA court stated:
       [Appellant’s] reliance on Miller…, as applied retroactively in
       Montgomery…, and Commonwealth v. Secreti, 2016 Pa.
       Super. 28[, 134 A.3d 77] (Pa. Super. 2016), is misplaced as
       those cases apply a constitutional right recognized by the United
       States Supreme Court which was held to apply retroactively.
       The claim currently being advanced by [Appellant] has not been
       recognized as a constitutional right by either the Supreme Court
       of the United States or the Supreme Court of Pennsylvania[,] nor
       has either Court ruled on the precise issue in favor of
       [Appellant]. Thus, exception to the timely filing of the Petition
       pursuant to 42 Pa.C.S.[] § 9545(b)(1)(iii) is inapplicable.

Id. Thereafter, Appellant filed a timely, pro se notice of appeal. On August

2, 2016, Attorney Entwistle was appointed to represent Appellant, and

subsequently filed a timely concise statement of matters complained of on

appeal on Appellant’s behalf.          However, on November 7, 2016, Attorney

____________________________________________


2
  Shortly thereafter, on May 31, 2016, Appellant also filed a Motion to
Recuse, in which he requested that the Honorable Michael A. George of the
Court of Common Pleas of Adams County recuse himself. Acknowledging
that he had “served as Adams County District Attorney during the period of
time [Appellant’s] initial PCRA petition was pending[,]” Judge George
granted Appellant’s motion “in order to avoid the appearance of
impropriety[.]” See PCRA Court Order, 6/7/2016. As a result, Appellant’s
case was forwarded to the Honorable Thomas R. Campbell, also of the Court
of Common Pleas of Adams County.



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Entwistle filed with this Court a petition to withdraw as counsel and a “no-

merit” letter pursuant to Turner/Finley.

       In response, Appellant filed a pro se brief, raising the following issues

for our review:
          1. Whether the PCRA court erred when it determined that …
             [A]ppellant’s pro se motion for post-conviction collateral
             relief was not timely filed[?]

          2. Whether the PCRA court erred when it determined that
             even if … [A]ppellant’s [p]ro se PCRA motion was timely
             filed[,] [A]ppellant still was not entitled to PCRA relief in
             the form of being granted a new trial because [A]ppellant’s
             claim was not recognize[d] by the U.S. Supreme [C]ourt[?]

Appellant’s Brief at 10 (formatting added).

       Before addressing Appellant’s claims, we must first determine whether

counsel has satisfied the prerequisites of withdrawal.          In Turner, our

Supreme Court “set forth the appropriate procedures for the withdrawal of

court-appointed counsel in collateral attacks on criminal convictions[.]”

Turner, 544 A.2d at 927.                The traditional requirements for proper

withdrawal of PCRA counsel, originally set forth in Finley, were updated by

this Court in Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006),

abrogated by Commonwealth v. Pitts, 981 A.2d 875 (Pa. 2009),3 which

provides:

____________________________________________


3
  In Pitts, our Supreme Court abrogated Friend “[t]o the extent Friend
stands for the proposition that an appellate court may sua sponte review the
sufficiency of a no-merit letter when the defendant has not raised such
issue.” Pitts, 981 A.2d at 879. In this case, Attorney Entwistle filed his
(Footnote Continued Next Page)


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      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

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

Friend, 896 A.2d at 615 (footnote omitted).

      “Once counsel for the petitioner determines that the issues raised

under the PC[R]A are ‘meritless,’ and the PC[R]A court concurs, counsel will

be permitted to withdraw and the petitioner may proceed on his own or with

the aid of private counsel to pursue a review of the ruling entered, if he/she

so wishes.” Finley, 550 A.2d at 215. The preceding sentence assumes that

counsel filed the no-merit letter with the trial court. However, counsel “may

                       _______________________
(Footnote Continued)

petition to withdraw and no-merit letter with this Court and, thus, our
Supreme Court’s holding in Pitts is inapplicable.



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withdraw at any stage of collateral proceedings if he, in the exercise of his

professional   judgment,   determines   that   the   issues   raised   in   those

proceedings are meritless,” Commonwealth v. Bishop, 645 A.2d 274, 275

(Pa. Super. 1994), and “the initial court before whom the request to

withdraw is pleaded would logically be the tribunal making the ruling.”

Finley, 550 A.2d at 215 n.4.       Attorney Entwistle filed his petition to

withdraw with our Court; accordingly, we must determine whether he has

complied with the Turner/Finley requirements.

     In the case sub judice, Attorney Entwistle submitted to Appellant a

copy of his no-merit letter.   That letter sets forth each claim Appellant

“wishes to have reviewed, and detail[s] the nature and extent of counsel’s

review of the merits of each of those claims[.]” Friend, 896 A.2d at 615.

The letter also provides an explanation as to why each issue is without merit

and wholly frivolous. Moreover, Attorney Entwistle advised Appellant of his

right to retain new counsel, or to proceed pro se, and/or to provide this

Court with any information that he deems worthy of our attention.

Accordingly, we conclude that Attorney Entwistle has complied with the

requirements necessary to withdraw as counsel.

     Next, this Court must conduct its own independent review of the

record in light of the issues presented in Appellant’s PCRA petition.        Our

standard of review regarding an order denying post conviction relief is

whether the determination of the court is supported by the evidence of

record and is free from legal error. Commonwealth v. Ragan, 923 A.2d

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J-S05046-17



1169, 1170 (Pa. 2007).     We must begin by addressing the timeliness of

Appellant’s petition because the PCRA time limitations implicate our

jurisdiction and may not be altered or disregarded in order to address the

merits of a petition.   Commonwealth v. Bennett, 930 A.2d 1264, 1267

(Pa. 2007). With respect to timeliness, the PCRA provides, in pertinent part,

the following:
      (b) Time for filing petition.--

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition
         alleges and the petitioner proves that:

            (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.

         (2) Any petition invoking an exception provided in
         paragraph (1) shall be filed within 60 days of the date the
         claim could have been presented.

42 Pa.C.S. § 9545(b)(1)-(2).

      In this case, as stated above, Appellant’s judgment of sentence

became final on November 14, 1994. Therefore, his present petition, filed

on March 21, 2016, is clearly untimely, and Appellant must satisfy one of the

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exceptions to the timeliness requirement set forth in section 9545(b)(1)(i)-

(iii), supra.     Appellant seemingly argues that he meets the ‘retroactive

constitutional right’ exception of section 9545(b)(1)(iii) based on the

Supreme Court’s holding in Miller.     In that case, as described supra, the

Supreme Court established a new constitutional right by 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 on ‘cruel and

unusual punishments.’” Miller, 132 S.Ct. at 2460 (emphasis added). After

Miller, the United States Supreme Court issued Montgomery, clarifying

that Miller applies retroactively. Montgomery, 136 S.Ct. at 735-36. This

Court also held, in Secreti, that the date of the Montgomery decision is to

be used when calculating whether a petition is timely filed under the 60-day

rule of 42 Pa.C.S. § 9545(b)(2). Secreti, 134 A.3d at 82.

      Initially, under the holding of Secreti, Appellant has complied with the

60-day rule of section 9545(b)(2), as his March 21, 2016 petition was filed

56   days       after   Montgomery   was   issued   on   January   25,   2016.

Notwithstanding, Appellant has not demonstrated that the rule created in

Miller applies to him. As the PCRA court observes, Appellant was born on

December 12, 1971, and committed the offense for which he is now

imprisoned on November 28, 1992. PCRA Court Opinion (PCO), 8/26/2016,




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at 2. As such, Appellant was 20 years and 11 months old at the time of his

crimes.4 Id.

       Nevertheless, on appeal, Appellant argues that the rule in Miller

should apply to him because “the brain is immature until age 25[,]” and

“[t]here is no legitimate basis for lowering the age of adulthood below the

age of brain maturity; 25 years old.”              See Appellant’s Brief at 13.   We

disagree, and have already rejected such arguments.                  Specifically, in

Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013), the co-

appellants, who were 19 and 21 years old at the time of their crimes, argued

that Miller applied to them because a human brain does not fully develop

until the age of 25, and because “it would be a violation of equal protection

for the courts to treat them[,] or anyone else with immature brains, as

adults.”     Cintora, 69 A.3d at 764.          In denying these claims, this Court

emphasized that the co-appellants’ “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).”             Id. (emphasis in

original).

       We recently reaffirmed Cintora’s holding in Commonwealth v.

Furgess, 149 A.3d 90 (Pa. Super. 2016). In that case, the appellant — who

was 19 years old when he committed his crimes — advanced an argument

____________________________________________


4
  Appellant does not contend that he was under 18 at the time he committed
his crimes.



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similar to Appellant’s, insisting that he “may invoke Miller because he was a

‘technical juvenile’” based on “neuroscientific theories regarding immature

brain development….”         Id. at 94.    Relying on Cintora, we reiterated that

“petitioners who were older than 18 at the time they committed murder are

not within the ambit of the Miller decision and therefore may not rely on

that decision to bring themselves within the time-bar exception in Section

9545(b)(1)(iii).” Id.

       Based on our holdings in Cintora and Furgess, it is clear that the rule

announced in Miller cannot apply to Appellant, who was 20 years and 11

months old when he committed the offenses for which he is now imprisoned.

Appellant’s arguments that Miller should apply to his case do not satisfy the

timeliness exception of section 9545(b)(1)(iii). Therefore, after our review

of the record and Appellant’s claims, we agree with Attorney Entwistle that

Appellant’s PCRA petition is meritless.5
____________________________________________


5
   We acknowledge that, in addition to his claims related to Miller, Appellant
seems to raise issues regarding the ineffective assistance of his trial counsel
and the validity of his plea in his third PCRA petition. He states that “[a]t no
time did I consent to enter this plea due to my mental incapacity[,]” and
that his trial counsel gave him incompetent advice regarding his plea. See
“Petition for Relief under 42 Pa.C.S.[] § 9545,” 3/21/2016, at 7-8
(unnumbered pages). In his no-merit letter, Attorney Entwistle notes that
these issues have already been litigated in Appellant’s prior PCRA actions.
Based on our review of the record, we reach the same conclusion. In his
first PCRA petition, filed on July 25, 2000, Appellant contended that his
counsel was incompetent and that he was “coerced into a plea of nolo
contendre [sic], whereas [his] mental conditions [] warrant[ed] a penalty
phase hearing or an insanity defense[.]” See PCRA Petition, 7/25/2000,
Exhibit 1, at 1, 6 (unnecessary capitalization and emphasis omitted).
(Footnote Continued Next Page)


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      Order affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/2017




                       _______________________
(Footnote Continued)

Because Appellant has already litigated these issues, we agree with Attorney
Entwistle that these issues do not entitle Appellant to relief. See 42 Pa.C.S.
§ 9543(a)(3) (stating that, to be eligible for relief, the petitioner must,
among other things, plead and prove by a preponderance of evidence that
“the allegation of error has not been previously litigated or waived”); 42
Pa.C.S. § 9544(a)(3) (explaining that an issue has been previously litigated
if “it has been raised and decided in a proceeding collaterally attacking the
conviction or sentence”).



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