Com. v. Nole, J. (judgment order)
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J-S63030-15 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JOHN F. NOLE Appellant No. 744 EDA 2015 Appeal from the PCRA Order March 2, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0915321-1969 BEFORE: DONOHUE, J., MUNDY, J., and MUSMANNO, J. JUDGMENT ORDER BY MUNDY, J.: FILED MAY 04, 2016 This case returns to us following remand from the Pennsylvania Supreme Court. Specifically, on February 17, 2016, our Supreme Court granted the petition for allowance of appeal filed by Appellant, John F. Nole, vacated our previous order affirming the dismissal of Appellant’s petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, and remanded the case to us for further proceedings consistent with Montgomery v. Louisiana, 136 S. Ct. 718 (2016). After careful review, we reverse and remand for resentencing. On March 31, 1971, the trial court imposed an aggregate sentence of life imprisonment without the possibility of parole for first-degree murder1 ____________________________________________ 1 18 Pa.C.S.A. § 2502(a). J-S63030-15 and other offenses, committed by Appellant when he was 17-years-old, in the course of a robbery and murder of an 81-year-old man.2 Appellant’s pro se seventh PCRA petition, which is the subject of this appeal, asserts that the United States Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), should be retroactively applied. PCRA Petition, 12/18/13, at 3-4. dismissed the petition. court’s order. Appellant’s Amended On March 2, 2015, the PCRA court On November 24, 2015, we affirmed the PCRA Commonwealth v. Nole, --- A.3d ---, 2015 WL 7571744 (Pa. Super. 2015) (unpublished judgment order), vacated, 132 A.3d 975 (Pa. 2016). Appellant filed a timely petition for allowance of appeal with our Supreme Court on December 22, 2015. While that petition was pending, on January 25, 2016, the United States Supreme Court announced its decision in Montgomery, holding that Miller’s prohibition on mandatory life imprisonment without the possibility of parole for juvenile offenders was a new substantive rule that, under the Constitution, must be applied retroactively in cases on state collateral review. Montgomery, supra at 732. Accordingly, our Supreme Court vacated our prior order and remanded ____________________________________________ 2 Our Supreme Court affirmed Appellant’s judgment of sentence on July 11, 1972. Commonwealth v. Nole, 292 A.2d 331 (Pa. 1972). Thereafter, Appellant filed six PCRA petitions between 1972 and 2008, none of which garnered him any relief. See Commonwealth v. Nole, 965 A.2d 299 (Pa. Super. 2008) (unpublished memorandum at 2-4) (affirming the PCRA court’s dismissal of Appellant’s sixth PCRA as untimely, and setting forth a full factual and procedural history of Appellant’s PCRA claims), appeal denied 973 A.2d 1006 (Pa. 2009). -2- J-S63030-15 this case to us. Moreover, this Court, in Commonwealth v. Secreti, --- A.3d ---, 2016 WL 513341 (Pa. Super. 2016), held that Miller and Montgomery afford relief to petitioners whose PCRA petitions based on Miller were on appeal when Montgomery was announced. Id. at *5. Based on the foregoing, Appellant is entitled to PCRA relief from his unconstitutional sentence of mandatory life imprisonment without parole. See Montgomery, supra; Miller, supra at 2464; Secreti, supra. Accordingly, we reverse the PCRA court’s March 2, 2015 order, vacate Appellant’s judgment of sentence, and remand for resentencing in accordance with Montgomery, Miller, and Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013).3 Order reversed. Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction relinquished. Judge Donohue did not participate in the consideration or decision of this case. ____________________________________________ 3 We note that the General Assembly passed Section 1102.1 in October 2012 to address Miller, which provides new mandatory minimum sentences for juveniles convicted of first-degree murder. However, Section 1102.1’s text limits its application to those “convicted after June 24, 2012[.]” 18 Pa.C.S.A. § 1102.1(a). -3- J-S63030-15 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/4/2016 -4-
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