J-S13002-15


                                   2015 PA Super 74

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

JEFFREY CRISTINA,

                            Appellee                    No. 601 WDA 2013


              Appeal from the PCRA Order Entered March 20, 2013
               In the Court of Common Pleas of Allegheny County
                           Criminal Division at No(s):
                            CP-02-CR-0001478-1976
                            CP-02-CR-0002462-1976
                            CP-02-CR-0002464-1976


BEFORE: BENDER, P.J.E., MUNDY, J., and STABILE, J.

OPINION BY BENDER, P.J.E.:                              FILED APRIL 14, 2015

        The Commonwealth appeals from the PCRA1 court’s order granting

Jeffrey Cristina a new sentencing hearing. Because the PCRA court lacked

jurisdiction to entertain Cristina’s untimely PCRA petition, we reverse.

        In 1976, Cristina was convicted by a jury of second degree murder for

the killing of Frank Slazinski during a home invasion.       Cristina, a juvenile

when the homicide occurred, was sentenced to life in prison without the

possibility of parole (LWOP) on March 29, 1977. On October 5, 1978, our

Supreme Court affirmed his judgment of sentence.            Commonwealth v.

Cristina, 391 A.2d 1307 (Pa. 1978).            The Supreme Court of the United
____________________________________________


1
    Post Conviction Relief Act, 42 Pa.C.S. §§ 9541–9546.
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States subsequently denied his Petition for Writ of Certiorari on February 21,

1979. Cristina v. Pennsylvania, 440 U.S. 925 (1979) (table).

       On March 15, 1984, Cristina filed a counseled petition under the Post

Conviction Hearing Act (PCHA), the statutory predecessor of the PCRA.2

Cristina’s PCHA petition was denied by order of the PCHA court on April 3,

1985. This Court affirmed that order on May 12, 1986, and our Supreme

Court denied Cristina’s subsequent petition for allowance of appeal on

January 7, 1987. Commonwealth v. Cristina, 512 A.2d 1288 (Pa. Super.

1986) (unpublished memorandum), appeal denied, 521 A.2d 931 (Pa. 1987)

(table).

       Cristina filed his second post-conviction petition for collateral relief on

June 16, 2010. Counsel was appointed and filed an amended PCRA petition

on September 14, 2011.          Following a hearing, Cristina’s amended petition

was denied by order of the PCRA court dated October 28, 2011. Cristina did

not appeal from that order.

       Cristina filed his third post-conviction petition for collateral relief, the

subject of the instant appeal, on July 27, 2012, 32 days after the United

States Supreme Court’s decision in Miller v. Alabama, 132 S.Ct. 2455,

2469 (2012) (holding that “the Eighth Amendment forbids a sentencing

scheme that mandates life in prison without possibility of parole for juvenile

____________________________________________


2
 The PCHA was repealed in part, modified in part, and renamed the Post
Conviction Relief Act, effective April 13, 1988.



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offenders”). On August 14, 2012, current PCRA counsel was appointed. He

filed an amended PCRA petition (hereinafter “the Petition”) on Cristina’s

behalf on December 3, 2012, alleging that, under the rubric of Miller,

Cristina’s LWOP sentence constituted cruel and unusual punishment under

the 8th Amendment.      By order dated March 20, 2013, the PCRA court

granted the Petition and set a date for resentencing Cristina.                   The

Commonwealth then timely filed the instant appeal, as well as a timely

Pa.R.A.P. 1925(b) statement. Subsequently, the PCRA court issued its Rule

1925(a) opinion on September 9, 2014. Therein, the PCRA court changed

course, recommending that this Court reverse its March 20, 2013 order.

PCRA Court Opinion (PCO), 9/9/14, at 2.

     The Commonwealth now presents the following question for our

review:

     Whether the PCRA court erred in granting [Cristina] post-
     conviction relief in the form of resentencing where the [Petition]
     was untimely filed?

Commonwealth’s Brief, at 4.

     This Court’s standard of review regarding an order granting or denying

a petition under the PCRA is whether the determination of the PCRA court is

supported   by   the   evidence   of   record   and   is   free   of   legal   error.

Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007).                   The PCRA

court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001). “However, this Court applies a de novo standard of

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review to the PCRA court's legal conclusions.” Commonwealth v. Spotz,

18 A.3d 244, 259 (Pa. 2011).

      We must begin by addressing the timeliness of the 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) (stating PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded to address

the merits of the petition); Commonwealth v. Johnson, 803 A.2d 1291,

1294 (Pa. Super. 2002) (holding the Superior Court lacks jurisdiction to

reach merits of an appeal from an untimely PCRA petition). Under the PCRA,

any petition for post-conviction relief, including a second or subsequent one,

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

final, unless one of the exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-

(iii) applies. That section states, in relevant part:

      (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



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            (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. § 9545(b)(1)(i)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Here, it is undisputed that the Petition is untimely and, therefore, that

Cristina had to avail himself of at least one of the exceptions to the

timeliness requirements set forth in Section 9545(b)(1)(i)-(iii) in the

Petition.   There is also no dispute that Cristina has not alleged the

applicability of either Section 9545(b)(1)(i) or (ii). Accordingly, our inquiry

is focused on whether Cristina can rely on Section 9545(b)(1)(iii) to

overcome the PCRA’s time limitations.

      Subsection (iii) of Section 9545[(b)(1)] has two requirements.
      First, it provides that 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 provided
      in this section. Second, it provides that the right “has been
      held” by “that court” to apply retroactively. Thus, a petitioner
      must prove that there is a “new” constitutional right and that the
      right “has been held” by that court to apply retroactively. The
      language “has been held” is in the past tense. These words
      mean that the action has already occurred, i.e., “that court” has
      already held the new constitutional right to be retroactive to
      cases on collateral review. By employing the past tense in
      writing this provision, the legislature clearly intended that the
      right was already recognized at the time the petition was filed.




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Commonwealth v. Copenhefer, 941 A.2d 646, 649–50 (Pa. 2007)

(quoting Commonwealth v. Abdul–Salaam, 812 A.2d 497, 501 (Pa.

2002)).

      The Commonwealth argues that the United States Supreme Court’s

decision in Miller, the case relied upon by Cristina to invoke Section

9545(b)(1)(iii), has not been “held by that court to apply retroactively.” 42

Pa.C.S. § 9545(b)(iii).   Accordingly, the Commonwealth contends that the

PCRA court lacked jurisdiction to entertain the Petition. Despite entering an

order granting Cristina’s Petition, the PCRA court now agrees with the

Commonwealth’s position in light of our Supreme Court’s decision in

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), cert. denied,

Cunningham v. Pennsylvania, 134 S.Ct. 2724 (2014). PCO, 9/9/14, at 2.

      In Cunningham, our Supreme Court held that, “applying settled

principles of appellate review, nothing in [Cunningham]’s arguments

persuades us that Miller's proscription of the imposition of mandatory life-

without-parole sentences upon offenders under the age of eighteen at the

time their crimes were committed must be extended to those whose

judgments of sentence were final as of the time of Miller's announcement.”

Cunningham, 81 A.3d at 11.            Moreover, the Cunningham Court

determined that “the Miller majority did not specifically address the

question of whether its holding applies to judgments of sentence for

prisoners, … which already were final as of the time of the Miller decision.”

Id. at 4.

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      Notably, however, the Cunningham decision addressed claims of

Miller’s retroactivity as presented by Cunningham.      As the Cunningham

Court acknowledged,

      Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d
      334 (1989) (plurality), delineated a general rule of non-
      retroactivity for new procedural, constitutional rules announced
      by the Court, ... subject to two narrow exceptions.... [T]he
      exceptions extend to “rules prohibiting a certain category of
      punishment for a class of defendants because of their status or
      offense,” and “watershed rules of criminal procedure implicating
      the fundamental fairness and accuracy of the criminal
      proceeding.” More recently, in Schriro v. Summerlin, 542 U.S.
      348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), the High Court
      appears to have merged the first Teague exception with the
      principle that new substantive rules generally apply retroactively.

Cunningham, 81 A.3d at 4-5 (internal citations omitted).

      The Cunningham Court clearly held that “the first Teague exception

does not apply to the Miller rule.” Id. at 10. However, as to the second

Teague exception, the Cunningham Court stated that “[Cunningham] has

not developed his arguments in such terms.”       Id.   The Court went on to

admit that “given the high importance attached by the Miller majority to the

new rule which it discerned, it seems possible that some Justices of the

United States Supreme Court may find the rule to be of the watershed

variety.”   Id.   Nonetheless, the Cunningham Court expressed doubt

regarding whether a majority of the High Court would apply the second

Teague exception to Miller. Id. Whether our Supreme Court’s prediction

will be accurate remains to be seen; however, that prediction is obviously




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dicta, because Cunningham had not argued the applicability of that

exception.

       Accordingly, while it may be convenient shorthand to state that

Cunningham held that the rule in Miller does not apply retroactively, that

is not completely accurate.            Cunningham can only be read for the

propositions that 1) the Miller Court did not, itself, give retroactive effect to

the new rule it announced, and 2) Miller is not otherwise retroactive under

the first Teague exception. Whether Miller is retroactive under the second

Teague exception, or some other theory,3 has not yet been addressed by

our Supreme Court.

       Nevertheless, in the wake of Cunningham, it is clear that neither the

United States Supreme Court, nor the Pennsylvania Supreme Court, has held

that the rule in Miller applies retroactively. Accordingly, we are constrained

to agree with the Commonwealth that Cristina cannot rely on Miller to

establish the exception set forth in 42 Pa.C.S. § 9545(b)(1)(iii).     As such,

the PCRA court lacked jurisdiction to entertain the Petition, and Cristina’s

LWOP sentence must remain in effect.

       Cristina argues, in the alternative, that because he filed the Petition

after Miller, but before Cunningham, we should remand to the PCRA court
____________________________________________


3
  In his concurring opinion in Cunningham, then Chief Justice Castille
offered several “thoughts upon the prospects of other methods of remedying
the seeming inequity arising in the post-Miller landscape.” Cunningham,
81 A.3d at 14 (Castille, C.J., concurring).



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to afford him the opportunity to amend the Petition so as to construe his

invocation      of    Section      9545(b)(1)(iii)   in   light   of   the    “current   legal

landscape[.]” Appellant’s Brief, at 15. Ostensibly, Cristina would amend his

petition   to        raise   the    retroactivity    questions     left      unaddressed    in

Cunningham, as we discussed supra. However, no such modification could

overcome the obstacle presented by Section 9545(b)(1)(iii).                     Because the

United States Supreme Court has never expressly recognized Miller to apply

retroactively, Cristina cannot avail himself of that exception to the PCRA’s

time-bar. The time-bar is jurisdictional in nature and, thus, the PCRA court

lacks jurisdiction to entertain the Petition, let alone any amendment thereto.

See Commonwealth v. Seskey, 86 A.3d 237 (Pa. Super. 2014), appeal

denied, 101 A.3d 103 (Pa. 2014).4 Accordingly, we deny Cristina’s remand

request.
____________________________________________


4
   In Seskey, this Court considered the appellant’s attempts to give
retroactive effect to Miller under multiple legal theories not settled by the
Cunningham decision, including some of the theories suggested by former
Chief Justice Castille in his concurring opinion in Cunningham. The Seskey
Court held:

       While these arguments someday may require consideration by
       our courts, today cannot be that day. Before a court may
       address [the a]ppellant's arguments, or similar contentions, that
       court must have jurisdiction.        We cannot manufacture
       jurisdiction based upon the substantive claims raised by the
       parties. Presently, we are confined by the express terms of
       subsection 9545(b)(1)(iii) and our Supreme Court's decision in
       Cunningham. Combined, those two elements require us to
       conclude that we lack jurisdiction. No substantive claim can
       overcome this conclusion.
(Footnote Continued Next Page)


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      Order reversed. Jurisdiction relinquished.

      Judge Stabile joins this opinion.

      Judge Mundy files a concurring statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/14/2015




                       _______________________
(Footnote Continued)

Seskey, 86 A.3d at 243 (emphasis added).



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