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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 conspiracy1stemming from an incident in which he and 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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a co-defendant beat another man to death in the victim’s own basement. 

Hernandez filed this, his second2PCRA 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, 

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