J-S21022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

TYRONE HENDERSON

                            Appellant                     No. 1984 EDA 2015


                    Appeal from the PCRA Order June 4, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1142831-1993


BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                                FILED APRIL 12, 2016

        Tyrone Henderson appeals from the trial court’s order denying, as

untimely, his fifth petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546.               Because the United States Supreme

Court has declared that the holding of Miller v. Alabama, 132 S.Ct. 2455

(2012), is a substantive rule of constitutional law to which state collateral

review courts were required, as a constitutional matter, to give retroactive

effect, Montgomery v. Louisiana, 136 S.Ct. 718, 736 (filed January 25,

2016, as revised on January 27, 2016), we reverse and remand for

resentencing.1
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  Although Henderson has filed an application for remand based on the
holding of Montgomery, we are bound to follow the procedure set forth by
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        Henderson was involved in a drug deal gone bad, which led to the

October 20, 1993 shooting death of Richard Marable (victim). At the time of

the offense, Henderson was seventeen years old.                   After a jury trial,

Henderson was convicted of first-degree murder2 and possessing an

instrument of crime (PIC).3             On November 14, 1994, Henderson was

sentenced to life imprisonment without the possibility of parole for first-

degree murder; no further penalty was imposed on the PIC conviction. 4

Henderson filed a direct appeal.                 Our Court affirmed his judgment of

sentence. Commonwealth v. Henderson, No. 4113 PHL 1994 (Pa. Super.

filed August 7, 1995). The Supreme Court subsequently denied Henderson’s

petition for allocatur.

        On May 1, 1996, Henderson filed his first PCRA petition, pro se,

alleging various claims of ineffectiveness of counsel. Counsel was appointed

and filed an amended petition on Henderson’s behalf. The trial court denied

Henderson’s petition and our Court affirmed the denial of PCRA relief.

Henderson filed serial pro se PCRA petitions, dated August 23, 2000,
                       _______________________
(Footnote Continued)

our Court in Commonwealth v. Secreti, 2016 PA Super. 28 (Pa. Super.
2016).
2
    18 Pa.C.S. § 2502.
3
    18 Pa.C.S. § 907.
4
  The crime of involuntary manslaughter, a second PIC charge and a firearm
offense were nolle prossed. Henderson was found not guilty of voluntary
manslaughter.



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December 23, 2003, and January 4, 2004. All petitions were dismissed as

untimely filed. Those decisions were affirmed on appeal.

       On July 9, 2010, Henderson filed the instant pro se PCRA petition, his

fifth, claiming that he is serving an illegal sentence under the Pennsylvania

and United States Constitutions based on the holding of Graham v. Florida,

130 S.Ct. 2011 (2010).           On August 2, 2012 and December 13, 2013,

Henderson amended his petition to include reference to Miller, supra, and

the PCRA’s newly recognized constitutional right exception set forth in 42

Pa.C.S. § 9545(b)(1)(iii).        On June 24, 2014, the PCRA court issued its

Pa.R.Crim.P. 907 notice of intent to dismiss Henderson’s petition without a

hearing based on its untimeliness and failure to prove an exception to the

timeliness provision of the PCRA. Henderson filed a response to the court’s

Rule 907 notice. On June 4, 2015, the court dismissed Henderson’s PCRA

petition. This timely pro se appeal follows.

       On appeal, Henderson raises the following issues for our consideration:

       (1)    Did the trial court err in dismissing petitioner’s petition and
              all supplemental petitions as untimely?

       (2)    Did the trial court err in dismissing petitioner’s PCRA
              petition and all supplemental petitions when they invoked
              meritorious claims for Miller and Graham5 to be applied
              retroactively?


____________________________________________


5
  We note that in Graham, the United States Supreme Court determined
that a sentence of life without parole imposed upon a non-homicide juvenile
offender violates the Eighth Amendment’s proscription against cruel and
(Footnote Continued Next Page)


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      (3)    Did the trial court err in dismissing petitioner’s PCRA
             petition that raised ineffective[] assistance of counsel for
             offering bad advice that led to petitioner’s rejection of [a]
             plea deal?

      (4)    Should this Court hold petitioner’s PCRA petition in
             abeyance pending the United States Supreme Court’s
             decision in Montgomery v. Louisiana?6

      With regard to Henderson’s first two claims raised on appeal, invoking

Miller, we conclude that he is entitled to relief based upon the United States

Supreme Court’s recent decision, Montgomery v. Louisiana, 136 S.Ct.

718. Although at the time Henderson filed his petition he was not entitled to

retroactive application of Miller, see Commonwealth v. Cunningham, 81

A.2d 1 (Pa. 2013),7 during the pendency of this appeal the United States

Supreme Court issued Montgomery, which concluded that the holding of

Miller is a substantive rule of constitutional law to which state collateral

review courts were required, as a constitutional matter, to give retroactive

effect. Id. at 736.
                       _______________________
(Footnote Continued)

unusual punishment.      Since Henderson was convicted of first-degree
murder, this holding does not apply to him.
6
  Because the United States Supreme Court rendered a decision in
Montgomery since the filing of Henderson’s appeal, this claim is now moot.
7
  In Cunningham, the Pennsylvania Supreme Court determined that the
Miller holding did not apply retroactively to an inmate, serving a life
sentence without parole, who has exhausted his direct appeal rights and is
proceeding under the PCRA. Moreover, in Commonwealth v. Cintora, 69
A.3d 759 (Pa. Super. 2013), our Court found that Miller did not qualify as a
newly-discovered fact or newly recognized constitutional right under section
9545(b)(1)(ii) or (iii) of the PCRA. However, Cunningham, Cintora and
their progeny are no longer good law as a result of Montgomery.



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      The Supreme Court cautioned in Montgomery that a court has no

authority to leave in place a conviction or sentence that violates a

substantive rule like Miller, regardless of whether the conviction or sentence

became final before the rule was announced. Id. at 724. In Miller, supra,

the United States Supreme held that “the Eighth Amendment forbids a

sentencing scheme that mandates life in prison without possibility of parole

for juvenile homicide offenders.” Miller, 132 S.Ct. at 2469. Moreover, the

Miller Court recognized that before sentencing juveniles, a judge or jury

must “have the opportunity to consider mitigating circumstances before

imposing the harshest possible penalty,” id. at 2476, by “tak[ing] into

account how children are different, and how those differences counsel

against irrevocably sentencing them to a lifetime in prison.” Id. at 2469.

      In the wake of Montgomery, our Court issued a decision to reverse

and remand cases on collateral appeal where a petitioner claimed that he or

she was entitled to relief pursuant to Miller.      See Commonwealth v.

Secreti, 2016 PA Super 28 (Pa. Super. 2016) (interpreting Montgomery as

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

decision).

      Accordingly, because Henderson was a juvenile at the time of the

instant offense, his life sentence without parole is, by definition, unlawful

under Miller and Montgomery.        Therefore, we reverse the order of the

PCRA court and remand this case for resentencing.




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       In his final claim on appeal, Henderson asserts that counsel was

ineffective for advising him to go to trial, where he ultimately received a

sentence of life without parole, rather than accept a plea offer of 10-20

years’ incarceration.      Because Henderson did not raise this claim in his

petition and also had the opportunity to raise it in his previously filed four

petitions, it is waived. Commonwealth v. Lowe, 444 A.2d 739 (Pa. Super.

1982); 42 Pa.C.S. § 9544(b) (“an issue is waived [under the PCRA] if the

petitioner could have raised it but failed to do so . . . on appeal or in a prior

state postconviction proceeding.”).

       Order     reversed.        Remanded       for   resentencing.   Jurisdiction

relinquished.8

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2016




____________________________________________


8
 We recognize that while Henderson’s first-degree murder sentence, itself,
may be unlawful, his underlying conviction stands.



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