J-S50044-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

FERNANDO NUNEZ

Appellant No. 3200 EDA 2014

Appeal from the PCRA Order October 22, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0402401-2014

BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

JUDGMENT ORDER BY JENKINS, J.: FILED FEBRUARY 10, 2016

Appellant Fernando Nunez appeals from the order entered in the 

Philadelphia County Court of Common Pleas, which denied his petition filed 

for relief pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

On November 16, 2005, the trial court sentenced Appellant to life 

imprisonment for committing a murder when he was 16 years old. On 

December 23, 2008, this Court affirmed his judgment of sentence. The 

Pennsylvania Supreme Court denied his petition for allowance of appeal on 

July 27, 2009. On February 12, 2010, Appellant timely filed his first PCRA 

petition, which the PCRA court denied on December 2, 2011. On January 

____________________________________________

1 42 Pa.C.S. §§ 9541-9546.
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14, 2014, this Court affirmed the order denying Appellant’s first PCRA 

petition.

On April 1, 2014, Appellant filed the instant pro se PCRA petition 

alleging Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455 (2012) announced 

a newly discovered constitutional right that should apply retroactively to his 

case.

Before we address the merits of Appellant’s claims, we must 

determine whether his PRCA petition was timely. The timeliness of a PCRA 

petition implicates the jurisdiction of both this Court and the PCRA court. 

Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal 

denied, 50 A.3d 121 (Pa.2012). “Pennsylvania law makes clear that no 

court has jurisdiction to hear an untimely PCRA petition.” Id. To “accord 

finality to the collateral review process[,]” the PCRA “confers no authority 

upon [appellate courts] to fashion ad hoc equitable exceptions to the PCRA 

timebar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011). With 

respect to jurisdiction under the PCRA, this Court has further explained: 

The most recent amendments to the PCRA...provide a 

PCRA petition, including a second or subsequent petition, 

shall be filed within one year of the date the underlying 

judgment becomes final. 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 the review. 

Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010) 

(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011); 
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see also 42 Pa.C.S. § 9545. This Court may review a PCRA petition filed 

more than one year after the judgment of sentence becomes final only if the 

claim falls within one of the following three statutory exceptions, which the 

petitioner must plead and prove:

(i) the failure to raise the claim 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.

42 Pa.C.S. § 9545(b)(1). Further, if a petition pleads one of these 

exceptions, the petition will not be considered unless it is “filed within 60 

days of the date the claim could have been presented.” 42 Pa.C.S. § 

9545(b)(2). When a petitioner asserts the new constitutional right exception 

to the PCRA time bar, he must file his PCRA petition within 60 days of the 

decision of the Supreme Court of the United States or the Supreme Court of 

Pennsylvania which has held the newly recognized constitutional right to 

apply retroactively. See Commonwealth v. Chambers, 35 A.3d 34, 39 

(Pa.Super.2011), appeal denied, 46 A.3d 715 (Pa.2012).
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Here, Appellant’s judgment of sentence became final on October 27, 

2009, when his time to appeal to the United States Supreme Court expired. 

See Monaco, supra. Accordingly, he had until October 27, 2010 to file a 

timely PCRA petition. 42 Pa.C.S. § 9545(b)(1). Appellant filed the instant

pro se PCRA petition on April 1, 2014. Thus, his PCRA petition is facially 

untimely, and we must determine whether Appellant has pled and proved 

any of the exceptions to the PCRA time limitation within 60 days of the date 

the claim could have been presented. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii), 

(b)(2). 

Appellant attempts to invoke the new constitutional right exception to 

the PCRA time bar by arguing that Miller applies retroactively to his case. 

Unfortunately, Appellant did not file his PCRA petition within 60 days of the 

Miller decision or the date that this Court affirmed the PCRA order denying 

his first PCRA petition.2 Thus, his petition is time barred.

Order affirmed.

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2

Fortunately for Appellant, he may still file a PCRA petition within 60 days of 

the decision in Montgomery v. Louisiana, __ U.S. __, 2016 WL 280758 

(filed January 25, 2016), which held that Miller applies retroactively to 

cases on collateral appeal.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/10/2016