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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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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 “nomerit” 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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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 coappellants, 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”).