Com. v. Cristina, J. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
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.
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 03, 2016
This case is before us on remand from our Supreme Court. After
careful review, we affirm the PCRA Court’s order granting relief and remand
for resentencing.
We previously summarized the relevant factual and procedural history
of this case as follows:
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 States
subsequently denied his Petition for Writ of Certiorari on
February 21, 1979. Cristina v. Pennsylvania, 440 U.S. 925(1979) (table).
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On March 15, 1984, Cristina filed a counseled petition
under the Post Conviction Hearing Act (PCHA), the statutory
predecessor of the PCRA. 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Super. 1986) (unpublished memorandum), appeal denied, 521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 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.
Commonwealth v. Cristina, 114 A.3d 419, 420 (Pa. Super. 2015), appeal
granted, order vacated, No. 183 WAL 2015, 2016 WL 593950 (Pa. filed Feb.
11, 2016) (footnote omitted) (hereinafter, “Cristina”).
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In Cristina, we reversed the PCRA’s court’s order in light of
Commonwealth v. Cunningham, 622 Pa. 543, 81 A.3d 1 (2013), holding
that:
[I]n 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, 114 A.3d at 423.
As we noted in Cristina,
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, 593 Pa. 382, 930 A.2d
1264, 1267 (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;
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(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. § 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).
Cristina, 114 A.3d at 421.
Following our ruling, Cristina petitioned our Supreme Court for
allowance of appeal. On August 17, 2015, our Supreme Court held Cristina’s
petition pending the outcome of Montgomery v. Louisiana, 136 S.Ct. 718(2016). Montgomery was decided on January 25, 2016. In Montgomery,
the Supreme Court of the United States held that Miller announced a new
substantive constitutional rule that must be applied retroactively on state
collateral review. Montgomery, 136 S. Ct. at 736.
Consequently, by order dated February 11, 2016, our Supreme Court
simultaneously granted Cristina’s petition for allowance of appeal and
reversed Cristina. That order stated, in pertinent part:
AND NOW, this 11th day of February, 2016, The Petition for
Allowance of Appeal is GRANTED on the issue of whether
Petitioner’s sentence violates the prohibition against mandatory
life sentences for juvenile offenders announced by the Supreme
Court of the United States in Miller v. Alabama, 567 U.S. ___,
132 S. Ct. 2455 (2012). As a result of the recent holding by that
Court that Miller must be applied retroactively by the States,
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see Montgomery v. Louisiana, 2016 WL 280758 (U.S. Jan.
25, 2016), the Superior Court’s order is VACATED, and the case
is REMANDED for further proceedings consistent with
Montgomery.
To the extent necessary, leave is to be granted to amend the
post-conviction petition to assert the jurisdictional provision of
the Post Conviction Relief Act extending to the recognition of
constitutional rights by the Supreme Court of the United States
which it deems to be retroactive. See 42 Pa.C.S. §
9545(b)(1)(iii).
Order, 2/11/16, at 1 (single page).
Thus, we have been directed by our Supreme Court to reconsider our
decision in Cristina in light of Montgomery. In that regard, we are guided
by this Court’s recent decision in Commonwealth v. Secreti, --- A.3d ---,
2016 PA Super 28, 2016 WL 513341 (Pa. Super. filed February 9, 2016).
Secreti dealt with an identically situated PCRA petitioner in the sense that
he had filed an untimely PCRA petition seeking to invoke Miller to satisfy the
PCRA’s timeliness exception set forth in 42 Pa.C.S. § 9545(b)(1)(iii), but had
filed his petition before the Montgomery ruling. However, unlike our
decision in Cristina, Montgomery was decided while the decision in
Secreti was still pending. In Secreti, this Court held that “the Miller rule
of law ‘has been held’ to be retroactive for purposes of collateral review as of
the date of the Miller decision on June 25, 2012. The date of the
Montgomery decision (January 25, 2016, as revised on January 27, 2016)
will control for purposes of the 60–day rule in Section 9545(b)(2).” Secreti,
2016 WL 513341 at *6. Accordingly, the Secreti Court reversed the PCRA
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court order denying relief, vacated Secreti’s sentence, and remanded for
resentencing. Id.Instantly, Cristina is clearly entitled to the retroactive application of
Miller, as was afforded in Secreti and required under Montgomery.
However, unlike what occurred in Secreti, Cristina was in fact granted such
relief in the PCRA court, as his PCRA petition seeking resentencing under
Miller was granted. Accordingly, we affirm the PCRA court’s order granting
relief under Miller, and remand for resentencing.
Order affirmed. Remanded for resentencing. Jurisdiction
relinquished.
Judge Mundy joins this memorandum.
Judge Stabile concurs in the result of this memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/2016
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