Com. v. Little, J. (memorandum)

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J. S16039/16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. JONATHAN D. LITTLE, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1919 EDA 2015 Appeal from the PCRA Order May 26, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0405382-2000 BEFORE: OTT, J., DUBOW, J., and JENKINS, J. MEMORANDUM BY DUBOW, J.: FILED APRIL 13, 2016 Appellant, Jonathan Little, appeals pro se from the Order denying as untimely his second Petition filed pursuant to Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §9542-9545. In light of Montgomery v. Louisiana, 136 S.Ct. 718 (2016), and Commonwealth v. Secreti, __ A.3d __, 2016 WL 513341 (Pa. Super. filed Feb. Feb. 9, 2016), we vacate and remand for further proceedings consistent with Montgomery. In 2001, when Appellant was fifteen years old, he was tried as an adult by a jury and convicted of first-degree murder, possessing instruments of crime, and criminal conspiracy. The trial court imposed, inter alia, a mandatory term of life imprisonment without the possibility of parole (“LWOP”) for the murder conviction. This Court affirmed his judgment of sentence, and our Supreme Court denied allocatur. J. S16039/16 Appellant’s first timely PCRA petition, asserting ineffective assistance of counsel, was denied without a hearing, and this Court affirmed in 2007. In 2010, Appellant filed his second PCRA petition, and amended it in August 2012, asserting a new constitutional right under Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455 (2012).1 On May 26, 2015, the PCRA court denied the petition without a hearing as untimely, noting that pursuant to Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), Miller did not create a new retroactive constitutional right. See Trial Court Order and Memorandum, dated May 26, 2015, at 1 n.1. Appellant timely appealed pro se on June 22, 2015, raising the following issues: a. The above named Petitioner is being deprived of his State Constitutional Rights and suffering an extreme inequity of justice as held under Article 1 §13 and § 26 of Pennsylvania’s Constitutional Declaration of Rights. In conjunction with violations of his 8 th and 14th Amendments of the United States Constitution. b. Petitioner in this matter avers that a “mandatory” sentence of life without the possibility of parole for a juvenile violates Article 1 §13, and Article 1 § 26, of the Pennsylvania Constitution which prohibits “Cruel Punishment” or “Deny to any person the enjoyment of any Civil Right.” c. The Pennsylvania Supreme Court stated themselves in Commonwealth v. Cunningham, No. 38 EAP 2012, quoting Geter, 115 So. 3rd at 377: [“Clearly and unequivocally, the 1 Appellant filed a petition for habeas corpus relief in December 2013. The trial court noted that the issue raised, i.e., a newly recognized constitutional right, was cognizable under Section 9545(b)(1)(iii) of the PCRA. The trial court, thus, considered the petition to be a second amendment to his 2010 PCRA petition. See Trial Court Order, dated 5/26/15, at 1. -2- J. S16039/16 Supreme Court distinguished between the substantive determinations of a categorical bar prohibiting a ‘penalty for a class of offenders or type of crime,’ as in Roper, and Graham.”] Thus, applying Graham retroactive to juvenile offenders on collateral review. d. Must an evidentiary hearing be held when it is impossible to determine from the record that PCRA claims are frivolous? The Commonwealth’s untimely claims are frivolous when the constitutionality of a sentence is at question and is the issue, and the basis of the request for an evidentiary hearing. Appellant’s Brief at 1-2. On January 25, 2016, while Appellant’s PCRA appeal was pending, the U.S. Supreme Court decided Montgomery, supra, holding that Miller must be applied retroactively by the States. “In reviewing the propriety of an order granting or denying PCRA relief, an appellate court is limited to ascertaining whether the record supports the determination of the PCRA court and whether the ruling is free of legal error.” Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). We pay great deference to the findings of the PCRA court, “but its legal determinations are subject to our plenary review.” Commonwealth v. Mattias, 63 A.3d 807, 810 (Pa.Super. 2013), quoting Johnson, supra at 532. Appellant challenges the LWOP imposed upon him as a juvenile. The PCRA court denied Appellant’s request for collateral relief after concluding that Cunningham, supra, explicitly provided that Miller did not create a new constitutional right that applies retroactively. This issue implicates the -3- J. S16039/16 holding of the U.S. Supreme Court’s recent decision in Montgomery, supra. In Secreti, supra, this Court recently recognized that “Montgomery has clarified Miller with regard to its substantive law and retroactivity. Consequently, … Cunningham, supra, no longer controls in this context.” Secreti, supra at *5. The panel concluded that “Miller remains the lodestar for substantive constitutional law on this subject such that the retroactivity determination will be deemed to have existed at the time the pending petition[ was] filed.” Secreti, supra at *6. Thus, as a result of Montgomery, “the Miller rule of law ‘has been held’ to be retroactive for purposes of collateral review as of the date of the Miller decision on June 25, 2012.” Secreti at *6, citing Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501-2 (Pa. 2002) (noting that the “language ‘has been held’ in 42 Pa.C.S. § 9545(b)(1)(iii) means that a retroactivity determination must exist at the time that the Petition is filed.”). The instant case “represents an example of the unique situation implicating those PCRA petitions seeking Miller relief which were filed in the time gap following Miller but before Montgomery.” Secreti, supra, at *5. Here, Appellant amended his current PCRA petition on August 20, 2012, within 60 days of the June 25, 2012 Miller decision, as required by Section 9545(b)(2), and asserted Miller’s substantive law as an exception to the PCRA timeliness requirements, as provided in Section 9545(b)(1)(iii). While -4- J. S16039/16 the appeal of the denial of his PCRA Petition was pending in this Court, the U.S. Supreme Court decided Montgomery. Because Appellant had timely raised his Miller claim, and his Petition was pending on appeal at the time Montgomery was decided, Appellant’s issues are cognizable under the rule announced in Montgomery. Accordingly, we reverse the PCRA court’s order, vacate Appellant’s judgment of sentence, and remand for resentencing in accordance with Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013).2 See Secreti, supra at *6. Order reversed; case remanded for resentencing. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/13/2016 2 In Batts, supra, the Pennsylvania Supreme Court recognized that “Miller requires only that there be judicial consideration of the appropriate agerelated factors set forth in that decision prior to the imposition of a sentence of life without parole on a juvenile.” Batts, 66 A.3d. at 296. -5-

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