J-S09040-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ALBERT IRBY,

                            Appellant             No. 1558 WDA 2014


               Appeal from the PCRA Order September 19, 2014
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR—0000013-1969


BEFORE: FORD ELLIOTT, P.J.E., BOWES, AND ALLEN, JJ.

MEMORANDUM BY BOWES, J.:                           FILED APRIL 07, 2016

       This matter is again before this panel upon remand from the Supreme

Court. We vacate the September 19, 2014 PCRA order, vacate Appellant’s

judgment of sentence, and remand for resentencing.

       Appellant, who was seventeen years old at the time of the offense,

was convicted by a jury of first-degree murder1 and was sentenced on May

6, 1971, to a mandatory sentence of life imprisonment without parole.

Appellant confessed that on September 22, 1969, he entered a store

intending to commit an armed robbery and shot the victim when the victim


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1
   Due to deficiencies in the decades old record, it is not possible to
determine if Appellant was convicted of additional offenses.
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reached for his gun.       On direct appeal, our Supreme Court affirmed.

Commonwealth v. Irby, 284 A.2d 738 (Pa. 1971).

      On August 6, 2012, within sixty days of the June 25, 2012 issuance of

Miller v. Alabama, 132 S.Ct. 2455 (2012), Appellant filed his first PCRA

petition claiming that his sentence was unconstitutional under that decision.

In Miller, the United States Supreme Court held that it was a violation of

the Eighth Amendment’s prohibition against cruel and unusual punishment

to sentence a juvenile homicide offender to a mandatory term of life

imprisonment without parole. At that time, Miller did not address whether

its decision would be fully retroactive.

      The court appointed counsel for purposes of the PCRA petition, and

counsel filed an amended petition. The August 6, 2012 PCRA petition was

not timely filed within one year of when Appellant’s judgment of sentence

became final, as required by 42 Pa.C.S. § 9545(b)(1), which was enacted

ineffective January 16, 1996. The petition also did not qualify under a grace

proviso from § 9545(b)(1) wherein a petitioner whose judgment of sentence

became final before § 9545(b)(1) was enacted could file a first-time PCRA

petition by January 16, 1997.     See Commonwealth v. Alcorn, 703 A.2d

1054 (Pa.Super. 1997) (discussing exception in question).

      Appellant maintained that his August 6, 2012 PCRA petition was timely

under the third exception to the one-year time bar. That exception is set

forth in 42 Pa.C.S. § 9545(b)(1)(iii), which states that a PCRA petition will

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be considered timely if “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.”2      After our Supreme Court filed

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), where the Court

held that Miller was not retroactive to cases on collateral review, the PCRA

court herein dismissed the PCRA petition.        On appeal, this panel affirmed.

Commonwealth v. Irby, 2015 WL 7575793 (Pa.Super. 2015) (unpublished

memorandum).

      On January 25, 2016, the United States Supreme Court decided

Montgomery v. Louisiana, 136 S.Ct. 718 (2016), which overruled

Cunningham by holding that Miller was to be given retroactive effect. By

per curiam order, our Supreme Court granted Appellant’s petition for

allowance of appeal, vacated our order, and remanded the matter to this

panel for further proceedings consistent with Montgomery.

      Shortly after Montgomery's issuance, this Court disseminated a

published opinion in Commonwealth v. Secreti, 2016 WL 513341

(Pa.Super. 2016).         Therein, Secreti was sentenced to automatic life

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2
 The PCRA also provides: “Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2). As noted, the petition at issue
herein was filed within sixty days of the issuance of Miller.



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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 held that (1) Miller applied retroactively to Secreti's

sentence under 42 Pa.C.S. § 9545(b)(1)(iii); (2) Secreti's sentence was

unconstitutional under Miller; and (3) Secreti was entitled to a new

sentencing hearing 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 the present PCRA petition, we vacate the order of the

PCRA court, vacate the judgment of sentence, and remand for a new

sentencing hearing.

        Jurisdiction relinquished.


        Judge Allen did not participate in the consideration or decision of this

case.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



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Date: 4/7/2016




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