J-S63031-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
             v.                             :
                                            :
STEVE JONES,                                :
                                            :
                   Appellant                :           No. 777 EDA 2015

                Appeal from the PCRA Order February 18, 2015
              in the Court of Common Pleas of Delaware County,
                Criminal Division, No. CP-23-CR-0001881-2002

BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED APRIL 11, 2016

        Steve Jones (“Jones”) appeals from the Order dismissing his “Petition

for Habeas Corpus Relief Under Article I, Section 14 of the Pennsylvania

Constitution and for Post-Conviction Relief Under the Post Conviction Relief

Act [‘PCRA’1].” We reverse the Order, vacate Jones’s judgment of sentence,

and remand for resentencing.

        Following a jury trial, Jones was found guilty of robbery and second

degree murder in connection with the robbery and shooting of an ice cream

truck driver in Chester on April 20, 2002.      Jones was sixteen years old at

the time of the murder.        The trial court sentenced Jones to a mandatory

term of life in prison. On June 22, 2004, this Court affirmed the judgment of

sentence.    Commonwealth v. Jones, 858 A.2d 1276 (Pa. Super. 2004)

(unpublished memorandum).



1
    See 42 Pa.C.S.A. §§ 9541-9546.
     Jones filed a PCRA Petition on December 14, 2007. The PCRA court

dismissed the Petition as untimely filed, and this Court affirmed.      See

Commonwealth v. Jones, 998 A.2d 1005 (Pa. Super. 2010) (unpublished

memorandum). On June 29, 2010, Jones filed another PCRA Petition. The

PCRA court dismissed the Petition on August 3, 2010. This Court affirmed

the dismissal.   See Commonwealth v. Jones, 106 A.3d 159 (Pa. Super.

2014) (unpublished memorandum).

     Jones filed the instant counseled Petition on October 14, 2014. In the

Petition, Jones argued that the United States Supreme Court’s decision in

Miller v. Alabama, 132 S. Ct. 2455 (2012),2 rendered his sentence illegal.

The PCRA court treated the Petition as a PCRA Petition.3     After issuing a

Notice of Intent to Dismiss pursuant to Pa.R.Crim.P. 907, the PCRA court

dismissed the Petition. This panel affirmed the PCRA court’s dismissal based



2
   In Miller, the Supreme Court held that sentencing schemes, which
mandate life in prison without parole for defendants who committed their
crimes while under the age of eighteen, violates the Eighth Amendment’s
prohibition on “cruel and unusual punishments.” Miller, 132 S. Ct. at 2460.
The Supreme Court reasoned that, in light of a juvenile’s diminished
culpability and heightened capacity for change, mandatory juvenile
sentencing schemes pose too great a risk of disproportionate punishment, in
contravention of the Eighth Amendment. Id. at 2469.
3
  The PCRA subsumes the remedy of habeas corpus where the PCRA
provides a remedy for the claim. See 42 Pa.C.S.A. § 9542. In his Petition,
Jones challenges the legality of his sentence based upon the holding in
Miller. See Commonwealth v. Seskey, 86 A.3d 237, 243 (Pa. Super.
2014) (stating that issues pertaining to Miller raise a legality of sentence
challenge). Thus, Jones’s claims were properly reviewed under the PCRA.
See 42 Pa.C.S.A. § 9543(a)(2).


                                -2-
on the untimeliness of the Petition,4 and the fact that Jones had previously

litigated his Miller claim.    See Commonwealth v. Jones, 2015 WL

7144822, at *2 (Pa. Super. 2015) (unpublished memorandum). Our panel

also reiterated that the Miller decision did not implicate the newly

recognized   constitutional   right   exception   codified   at   42   Pa.C.S.A.

§ 9545(b)(1)(iii),   based    upon    our   Supreme     Court’s    decision   in

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013).5 Jones, 2015 WL

7144822, at *2.

      Jones filed a Petition for Allowance of Appeal. On February 12, 2016,

our Supreme Court granted the Petition, vacated this Court’s decision, and

remanded for further proceedings based upon the United States Supreme

Court’s decision in Montgomery v. Louisiana, 136 S. Ct. 718 (2016). See

Commonwealth v. Jones, 2016 WL 594627, at *1 (Pa. 2016).



4
  Under the PCRA, any PCRA petition “shall be filed within one year of the
date the judgment becomes final[.]”       42 Pa.C.S.A. § 9545(b)(1).     A
judgment of sentence becomes final “at the conclusion of direct review,
including discretionary review in the Supreme Court of Pennsylvania, or at
the expiration of time for seeking the review.” Id. § 9545(b)(3). Here,
Jones’s Petition was facially untimely under the PCRA.            However,
Pennsylvania courts may consider an untimely petition if the appellant can
explicitly plead and prove one of three exceptions set forth under 42
Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any PCRA petition invoking one of these
exceptions “shall be filed within 60 days of the date the claim could have
been presented.” Id. § 9545(b)(2).
5
  In Cunningham, the Pennsylvania Supreme Court ruled that Miller does
not apply retroactively to juveniles in Pennsylvania whose judgments of
sentence were final at the time Miller was decided. Cunningham, 81 A.3d
at 11.


                                  -3-
      In Montgomery, the United States Supreme Court held that its

decision in Miller announced a substantive rule; thus, Miller applies

retroactively.   Montgomery,     136     S.   Ct.   at   734,   736;   see   also

Commonwealth v. Secreti, 2016 PA Super 28, at **5-6 (Pa. Super. 2016)

(noting that Montgomery rendered the Miller rule of law retroactive and

that the date of the Montgomery decision will control for purposes of the

60-day rule under section 9545(b)(2)).

      Based upon Montgomery, we conclude that (1) Miller applies

retroactively to Jones’s sentence; (2) Jones’s sentence is unconstitutional

under Miller; and (3) Jones is entitled to a new sentencing hearing in




                                -4-
accordance with Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013).6 See

Secreti, 2016 PA Super 28, at **4-5.

      Accordingly, we reverse the PCRA court’s Order dismissing Jones’s

Petition, vacate Jones’s judgment of sentence, and remand for resentencing

in accordance with Batts, supra.

      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.




6
  “Miller requires only that there be judicial consideration of the appropriate
age-related factors set forth in that decision prior to the imposition of a
sentence of life imprisonment without the possibility of parole on a juvenile.”
Batts, 66 A.3d at 296.

      [A]t a minimum [the trial court] should consider a juvenile’s age
      at the time of the offense, his diminished culpability and capacity
      for change, the circumstances of the crime, the extent of his
      participation in the crime, his family, home and neighborhood
      environment, his emotional maturity and development, the
      extent that familial and/or peer pressure may have affected him,
      his past exposure to violence, his drug and alcohol history, his
      ability to deal with the police, his capacity to assist his attorney,
      his mental health history, and his potential for rehabilitation.

Id. at 297. “[T]he imposition of a minimum sentence taking such factors
into account is the most appropriate remedy for the federal constitutional
violation that occurred when a life-without-parole sentence was mandatorily
applied to [the a]ppellant.” Id.; see also Montgomery, 136 S. Ct. at 736
(stating that “[a]llowing those offenders to be considered for parole
ensures that juveniles whose crimes reflected only transient immaturity—
and who have since matured—will not be forced to serve a disproportionate
sentence in violation of the Eighth Amendment.”) (emphasis added).


                                   -5-
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/11/2016




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