Com. v. Markle, L. (judgment order)
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J. S71035/14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. LARRY MARKLE, Appellant : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 513 MDA 2014 Appeal from the PCRA Order February 12, 2013 In the Court of Common Pleas of York County Criminal Division No(s): CP-67-CR-0001337-1975 BEFORE: FORD ELLIOTT, P.J.E., PANELLA, and FITZGERALD,* JJ. JUDGMENT ORDER BY FITZGERALD, J.: FILED FEBRUARY 19, 2016 Appellant, Larry Markle, appeals from the order dismissing as untimely his third Post Conviction Relief Act1 (“PCRA”) petition seeking relief, in light of Miller v. Alabama, 132 S. Ct. 2455 (2012), from a mandatory sentence of life imprisonment without parole imposed on October 29, 1979. This Court previously denied Appellant’s counsel petition to withdraw and directed him to submit an amended Turner/Finley2 letter or an advocate’s brief to address whether the retroactive application of Miller could be considered * Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S. §§ 9541-9546. 2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). J. S71035/14 outside the framework of the PCRA. Appellant’s counsel has filed an advocate’s brief and the Commonwealth has filed a supplemental responsive brief. While this appeal was pending, the United States Supreme Court decided Montgomery v. Louisana, ___ S. Ct. ___, 2016 WL 280758 (U.S. Jan. 25, 2016), and held “that when a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule.” WL 280758 at *7. Montgomery, 2016 The Montgomery Court concluded that Miller “announced a substantive rule of constitutional law” under Teague v. Lane, 489 U.S. 288 (1989). Id. at *15. Moreover, this Court, in Commonwealth v. Secreti, ___ A.3d ___, 2016 WL 513341 ( Pa. Super. Feb. 9, 2016), has recently held that Miller and Montgomery afford relief to petitioners whose PCRA petitions seeking relief under Miller were on appeal when Montgomery was announced. In light of the foregoing, we reverse the order dismissing Appellant’s PCRA petition and remand for resentencing. Order reversed. Case remanded. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 2/19/2016 -2-
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