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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                   v.                      :
                                           :
LUIS E.E. ANDUJAR,                         :            No. 1026 EDA 2013
                                           :
                        Appellant          :


                 Appeal from the PCRA Order, April 9, 2012,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0002941-2007


BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND PLATT,* JJ.


JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.: FILED MARCH 18, 2016

      Luis E.E. Andujar filed a petition for allowance of appeal with our

supreme court from our unpublished memorandum affirming the trial court

order denying his first petition brought pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.                 The Supreme Court of

Pennsylvania    remanded     for      further    proceedings     consistent     with

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

Accordingly, we reverse and remand for resentencing.

      On October 15, 2007, a jury found appellant guilty of first-degree

murder and related charges.         Thereafter, appellant was sentenced to an

aggregate term of life imprisonment.            On January 7, 2009, this court

affirmed the judgment of sentence, and on July 7, 2009, our supreme court




* Retired Senior Judge assigned to the Superior Court.
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denied appeal.           Commonwealth v. Andujar, 968 A.2d 785 (Pa.Super.

2009), appeal denied, 980 A.2d 109 (Pa. 2009).

       On November 9, 2009, appellant filed his first PCRA petition, pro se,

in which he raised ineffective assistance of counsel and sentencing claims.

The PCRA court dismissed the petition on April 9, 2012, and no appeal was

taken.   On June 25, 2012, the United States Supreme Court subsequently

handed down Miller v. Alabama,                     U.S.     , 132 S.Ct. 2455 (2012),

which held that sentencing a person who was a juvenile at the time of the

offense to a mandatory term of life imprisonment without parole for

homicide violated the Eighth Amendment’s restriction on cruel and unusual

punishment.

       On August 14, 2012, appellant filed his second PCRA petition, pro se,

raising Miller. Counsel was appointed and an amended petition was filed.

On    March       23,    2013,     with   the   agreement     of    appellant   and     the

Commonwealth, the PCRA court reinstated appellant’s right to appeal,

nunc pro tunc, from the April 9, 2012 order dismissing his first PCRA

petition. On appeal, we held that Miller did not apply retroactively based on

our supreme court’s decision in Commonwealth v. Cunningham, 81 A.3d

1 (Pa. 2013).             Commonwealth v. Andujar, No. 1026 EDA 2013,

unpublished memorandum (Pa.Super. filed July 8, 2014).                          Appellant

petitioned our supreme court for an allowance of appeal on July 29, 2014.

In   light   of    the    United    States   Supreme      Court’s   recent   decision    in



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Montgomery, the Pennsylvania Supreme Court remanded this case to this

court for further proceedings consistent with Montgomery on February 11,

2016. See Commonwealth v. Andujar, 2016 WL 593926 (Pa. 2016).

      After the United States Supreme Court’s holding in Montgomery,

Cunningham’s tenet that Miller cannot be applied retroactively is no longer

good law in Pennsylvania.      See Commonwealth v. Secreti, 2016 WL

513341 (Pa.Super. 2016) (interpreting Montgomery as making retroactivity

under Miller effective as of the date of the Miller decision).

      Here, the trial court sentenced appellant, who was a juvenile at the

time of the offense, to a mandatory sentence of life imprisonment without

the possibility of parole.   In light of the United States Supreme Court’s

recognition in Miller that such a sentence violates the Eighth Amendment’s

prohibition against cruel and unusual punishment, and the Court’s recent

retroactive application of Miller in Montgomery, we reverse the trial court’s

order and remand for resentencing.

      Order reversed. Remanded for resentencing. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/18/2016



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