J-S10018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

VERNON STEED,

                            Appellant                  No. 1851 EDA 2015


               Appeal from the PCRA Order Entered June 3, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0129931-1987


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                         FILED MARCH 09, 2016

        Appellant, Vernon Steed, appeals pro se from the post-conviction

court’s June 3, 2015 order denying, as untimely, his fifth petition filed under

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.            After

careful review, we reverse the PCRA court’s order, vacate Appellant’s

judgment of sentence, and remand for resentencing.

        On September 8, 1985, when Appellant was 17 years old, he and his

co-defendant, Thomas Perrin shot in the direction of a man with whom

Perrin had a drug dispute.         The bullets missed their intended target and

instead struck an innocent bystander, Serena Gibson, who was standing with

her family in the vicinity of the attack. Appellant and Perrin were tried by a

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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jury in 1988 and were both convicted of first-degree murder. On December

8, 1988, Appellant was sentenced to a mandatory term of life imprisonment,

without the possibility of parole (hereinafter, “LWOP”). This Court affirmed

Appellant’s judgment of sentence, and our Supreme Court denied his

subsequent    petition   for   allowance    of   appeal    on   March    20,    1990.

Commonwealth v. Steed, 569 A.2d 1386 (Pa. Super. 1989) (unpublished

memorandum), appeal denied, 575 A.2d 112 (Pa. 1990).

      Over the next 20 years, Appellant filed four petitions for post-

conviction relief, which were all denied. Appellant filed timely appeals from

each of those decisions; his first appeal was dismissed by order of this Court

for failure to file a brief, and his remaining appeals resulted in our Court’s

affirming   the   PCRA   court’s   orders    denying      Appellant   relief.    See

Commonwealth v. Steed, 849 A.2d 610 (Pa. Super. 2004) (unpublished

memorandum), appeal denied, 857 A.2d 678 (Pa. 2004); Commonwealth

v. Steed, 929 A.2d 247 (Pa. Super. 2007) (unpublished memorandum),

appeal denied, 934 A.2d 1148 (Pa. 2007); Commonwealth v. Steed, 965

A.2d 303 (Pa. Super. 2008) (unpublished memorandum), appeal denied,

969 A.2d 1180 (Pa. 2009).

      On July 12, 2010, Appellant filed his fifth pro se PCRA petition, which

underlies the present appeal. For some unknown reason, the PCRA court did

not rule on Appellant’s petition. Over two years later, on August 10, 2012,

Appellant filed a pro se, amended petition, along with a “Motion for

Expedited Decision.”     Therein, Appellant argued that his mandatory LWOP

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sentence was illegal under Miller v. Alabama, 132 S.Ct. 2455 (2012).

Again, the PCRA court took no action on Appellant’s amended petition. On

December 23, 2013, Appellant filed a second pro se, amended petition. It

was not until June 11, 2014, nearly four years after Appellant filed his initial

petition, that the PCRA court finally issued a Pa.R.Crim.P. 907 notice of its

intent to dismiss the petition without a hearing.     Appellant filed a pro se

response on July 8, 2014.      Another year passed before the PCRA court

issued an order and opinion dismissing Appellant’s petition. The court offers

no explanation in its opinion for the repeated and significant delays in ruling

on Appellant’s petition.

      Appellant filed a timely, pro se notice of appeal from the order denying

his petition. The court did not order him to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal, and the court also did not issue

a Rule 1925(a) opinion. Herein, Appellant raises one issue for our review:

“Whether [] [A]ppellant is entitled to Post Conviction relief as an [sic] result

of the United States Supreme Court’s decision in Miller …, which held that

the mandatory imposition of sentences of life without the possibility of parole

on juvenile offenders convicted of murder is unconstitutional and whether

the United States Supreme Court’s precedent applies retroactively in

[A]ppellant’s case[?]” Appellant’s Brief at 4.

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.     Commonwealth v.

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Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.    Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007).     Under the PCRA, any petition for post-conviction

relief, including a second or subsequent one, must be filed within one year of

the date on which the judgment of sentence becomes final, unless one of the

following exceptions applies:

      (b) Time for filing petition.--

         (1) Any petition under this subchapter, including a second
         or subsequent petition, shall be filed within one year of the
         date the judgment becomes final, unless the petition
         alleges and the petitioner proves that:

            (i) the failure to raise the claim previously was the
            result of interference by government officials with
            the presentation of the claim in violation of the
            Constitution or laws of this Commonwealth or the
            Constitution or laws of the United States;

            (ii) the facts upon which the claim is predicated were
            unknown to the petitioner and could not have been
            ascertained by the exercise of due diligence; or

            (iii) 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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).   Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).



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      Here, Appellant’s judgment of sentence became final on June 18,

1990, at the expiration of the ninety-day time-period for seeking review with

the United States Supreme Court after the Pennsylvania Supreme Court

rejected his petition for allowance of appeal. See 42 Pa.C.S. § 9545(b)(3)

(stating that a judgment of sentence becomes final at the conclusion of

direct review or the expiration of the time for seeking the review);

Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998) (directing

that under the PCRA, petitioner’s judgment of sentence becomes final ninety

days after our Supreme Court rejects his or her petition for allowance of

appeal since petitioner had ninety additional days to seek review with the

United States Supreme Court).        Thus, Appellant’s present petition, filed

twenty years after his judgment of sentence became final, is patently

untimely, and Appellant must prove that he meets one of the exceptions set

forth in 42 Pa.C.S. § 9545(b).

      Here, Appellant asserts that his mandatory LWOP sentence is illegal

under Miller.      With this claim, Appellant seeks to satisfy the ‘new

constitutional right’ exception of section 9545(b)(1)(iii).   That subsection

requires a petitioner to prove that “there is a ‘new’ constitutional right and

that the right ‘has been held’ by ‘that court’ to apply retroactively.”

Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002).               The

Abdul-Salaam Court interpreted “the language ‘has been held’ in 42

Pa.C.S. § 9545(b)(1)(iii) [to] mean[] that a retroactivity determination must

exist at the time that the petition is filed.” Id. at 502.

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      In Miller, the High Court clearly established a new constitutional right

by holding that “the Eighth Amendment forbids a sentencing scheme that

mandates life in prison without possibility of parole for juvenile offenders.”

Miller, 132 S.Ct. at 2469. During the pendency of this appeal, the United

States Supreme Court issued Montgomery v. Louisiana, 136 S.Ct. 718,

735-36 (2016), holding that Miller applies retroactively.

      Shortly   after   Montgomery         was   decided,   this   Court     filed

Commonwealth v. Secreti, --- A.3d ---, 2016 PA Super 28 (Pa. Super.

filed February 9, 2016), which held that Montgomery must be interpreted

“as making retroactivity under Miller effective as of the date of the Miller

decision” so as to “satisfy the ‘has been held’ conditional language

enunciated in Abdul–Salaam, supra.” Secreti, 2016 PA Super 28, at *5.

The Secreti panel further declared that,

      we will use the date of the Montgomery decision solely to
      measure the 60–day rule of Section 9545(b)(2) (requiring
      petitioner asserting timeliness exception to file petition within 60
      days of date claim could have been presented)…. In all other
      respects, 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 petitions were filed. Thus, we harmonize the PCRA
      requirements with Montgomery, Miller, and Abdul–Salaam
      and simultaneously achieve the justice this law was designed to
      promote.

Id. (one citation omitted).

      In light of Miller, Montgomery, and Secreti, it is clear that the

timeliness exception of section 9545(b)(1)(iii) applies to Appellant’s case.



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Thus, we have jurisdiction to vacate Appellant’s now illegal, mandatory

LWOP sentence.      Accordingly, we reverse the PCRA court’s order, vacate

Appellant’s   judgment    of   sentence,   and   remand   for   resentencing   in

accordance with Montgomery.

      Order reversed. Judgment of sentence vacated. Case remanded for

further proceedings. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2016




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