Com. v. Olds, R. (memorandum)
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J-S59003-15 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. RICKY LEE OLDS, Appellant No. 1319 WDA 2014 Appeal from the PCRA Order July 15, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0006857-1979 CP-02-CR-0007090-1979 BEFORE: BOWES, DONOHUE, AND FITZGERALD,* MEMORANDUM BY BOWES, J.: FILED APRIL 12, 2016 This matter is again before this panel upon remand from the Supreme Court. We vacate the September July 15, 2014 PCRA order, vacate Appellant’s judgment of sentence, and remand for resentencing. On April 2, 1980, Appellant was found guilty of second-degree murder, robbery, and conspiracy based on a crime that he committed when he was fourteen years old. On April 28, 1981, Appellant was sentenced to a mandatory term of life imprisonment without parole (“LWOP”) based upon his second-degree murder conviction. On November 25, 1983, we affirmed the judgment of sentence. Commonwealth v. Olds, 469 A.2d 1072 (Pa.Super. 1983). * Former Justice specially assigned to the Superior Court. J-S59003-15 Appellant litigated his first request for post-conviction relief, which was counseled, through the trial and appellate courts from 1984 through 1992. During that proceeding, the court denied relief, we reversed, and our Supreme Court reversed this Court, reinstating the denial of post-conviction relief. Appellant filed his second petition collaterally attacking his judgment of sentence on July 13, 2010. Relief was denied, we affirmed, and our Supreme Court denied allowance of appeal. Appellant filed a third PCRA petition on August 20, 2012, within sixty days of the June 25, 2012 issuance of Miller v. Alabama, 132 S.Ct. 2455 (2012), which held that a mandatory sentence of LWOP could not be imposed upon juvenile homicide offenders due to the Eighth Amendment’s prohibition against cruel and unusual punishment. Counsel was appointed. The PCRA court stayed the PCRA proceeding until the Pennsylvania Supreme Court ruled on whether Miller would be given full retroactive effect to PCRA petitioners. Our Supreme Court thereafter decided that Miller would not be applied in the post-conviction context. Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013). The PCRA court herein then dismissed Appellant’s August 20, 2012 PCRA petition. On appeal, This panel affirmed. Commonwealth v. Olds, 2015 WL 650915 (unpublished memorandum, Oct. 27, 2015). Before this panel, Appellant claimed that his PCRA petition was timely filed under the third exception to the PCRA’s mandate that all PCRA petitions must be filed -2- J-S59003-15 within one year of when a petitioner’s judgment of sentence became final. That exception provides that a PCRA petition is considered timely if “the right asserted [in the petition] 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)(iii). We noted that the exception was inapplicable in that neither the United States Supreme Court nor the Pennsylvania Supreme Court had determined that Miller applied retroactively. On February 25, 2016, our Supreme Court reversed and remanded the October 27, 2015 decision of this panel due to the issuance of Montgomery v. Louisiana, 136 S.Ct. 718 (2016), which overruled Cunningham by holding that Miller was to be given retroactive effect. Shortly after Montgomery's issuance, this Court disseminated a published opinion in Commonwealth v. Secreti, 2016 WL 513341 (Pa.Super. 2016). Therein, Secreti had been sentenced to automatic life imprisonment without the possibility of parole for committing first degree murder as a juvenile, and filed a PCRA petition seeking relief under Miller. Relief was denied, and Secreti was on appeal when Montgomery was decided. On February 9, 2016, following issuance of Montgomery, this Court in Secreti noted that the Miller rule of law had been held to be retroactive for purposes of collateral review under Montgomery. -3- We J-S59003-15 decided that, since Secreti had invoked 42 Pa.C.S. § 9545(b)(1)(iii), he was entitled have his judgment of sentence vacated under Miller and to be resentenced in accordance with the dictates of our Supreme Court’s decision in Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013). Based on Secreti and due to Appellant’s express invocation of § 9545(b)(1)(iii) in this appeal, we vacate the order of the PCRA court, vacate the judgment of sentence, and remand for a new sentencing hearing under Batts. Order reversed. Case remanded. Jurisdiction relinquished. Judge Donohue did not participate in the consideration or decision of this case. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/12/2016 -4-
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