J-S40034- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. WILFREDO CABALLERO Appellant No. 2272 MDA 2013

Appeal from the PCRA Order November 21 , 2013 In the Court of Common Pleas of York County Criminal Division at No(s): CP

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- CR -0000727-1989
BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J. MEMORANDUM BY PANELLA, J.: FILED AUGUST 20, 2014 Appellant, Wilfredo Caballero, appeals from the or der dismissing his petition pursuant to the Post Conviction Relief Act (“PC RA”). After careful review, we remand. On August 30, 1990, Caballero was convicted of commit ting first degree murder as a 14-year-old. The trial court sente nced Caballero to life imprisonment without the possibility of parole. Caba llero concedes that he has filed previous PCRA petitions, but filed a pro se petition on September 5, 2012, asserting that his sentence was illegal pursuant to the United States Supreme Court decision in Miller v. Alabama , 132 S.Ct. 2455 (2012). On October 30, 2013, the Supreme Court of Pennsylvania h eld that Miller was not retroactive, and therefore offered no relief to petitioners, such asJ-S40034- 14

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Caballero, whose sentences were already final. See Commonwealth v. Cunningham , 81 A.3d 1 (Pa. 2013). Caballero filed a counseled motion to amend his PCRA petition, presenting additional arguments based upon Cunningham , specifically, upon Chief Justice Castille’s concurring opinion. One w eek later, the PCRA court entered the instant order, dismissing Caballero’s “P ost Conviction Collateral Relief Petition filed September 5, 2012 .” The PCRA court’s order does not reference the pending motion to amend. On appeal, Caballero argues that the PCRA court erre d by not addressing the issues raised in his motion to amend and requests a remand. 1 Under the Rules of Criminal Procedure, Rule 905(A), a PCRA court may grant leave to amend a petition “at any time.” Commonwealth v. Boyd , 835 A.2d 812, 816 (Pa. Super. 2003) (emphasis in or iginal) (citation omitted). Amendment of a petition should be “freely allowed to achieve substantial justic e.” Id . (citation omitted). Rule 905(A) has been

____________________________________________ 1 The Commonwealth argues that Caballero has waived the PCRA court’s failure to address the issues raised in his motion to ame nd by failing to include this argument in his Concise Statement of Matter s pursuant to R.A.P. 1925. However, our review of the Concise Statement r eveals that Caballero does challenge the PCRA court’s failure to grant relief upon arguments contained only in his motion to amend. See Concise Statement of Errors Complained of on Appeal, 1/15/2014, at ¶ 1 (arguing that his sentence violates Article I, Section 13 of the Pennsylvania Con stitution); ¶ 2 (arguing that Cunningham has created an “uneven state law effect” and therefore his sentence violates the U.S. and Pennsylvania Constitut ions); ¶ 3 (arguing that Cunningham has foreclosed relief pursuant to the PCRA and as a resu lt requesting habeas corpus relief).J-S40034- 14

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interpreted to “expressly allow[] a trial court substan tial latitude to permit the amendment of the petition at any time after the petition’s initial filing.” Id . (citation omitted). Here, there is no indication that the PCRA court was a ware, let alone considered, Caballero’s motion to amend his PCRA petiti on. As the PCRA court has “substantial latitude” in whether to grant ame ndment, we must remand this case back to the PCRA court to consider and e xplicitly rule on Caballero’s motion to amend. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/20/2014