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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. J-S87043-16
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,
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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. J-S87043-16
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.
-2- J-S87043-16
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.
-3- J-S87043-16
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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