J-S09027-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

JAMES EARL HOUSE,

                        Appellant                 No. 1241 WDA 2014


                 Appeal from the PCRA Order July 9, 2014
               In the Court of Common Pleas of Erie County
           Criminal Division at No(s): CP-25-CR-0002720-1999


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, after it vacated our decision in light of the United States Supreme

Court’s recent decision in Montgomery v. Louisiana, 136 S.Ct. 718

(2016), clarifying that its earlier holding in Miller v. Alabama, 132 S.Ct.

2455 (June 25, 2012), is to be retroactively applied. We vacate the PCRA

court’s order, vacate judgment of sentence, and remand for resentencing.

     Appellant was convicted of first-degree murder, aggravated assault,

carrying a firearm without a license, conspiracy to commit simple assault

and possession of an instrument of crime, based upon events that occurred

on April 7, 1999, when he was a juvenile. He was sentenced to a term of

life imprisonment without possibility of parole on the murder count, a
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consecutive term of five years imprisonment on the firearms charge, and a

consecutive term of one to two years of imprisonment on the conspiracy

conviction.

      This Court affirmed the judgment of sentence on September 10, 2001,

and Appellant did not seek allowance of appeal to the Supreme Court.

Commonwealth v. House, 788 A.2d 1029 (Pa.Super. 2001) (unpublished

memorandum). Four subsequently filed PCRA petitions did not afford relief.

On July 11, 2012, within sixty days of the Supreme Court decision in Miller,

Appellant filed this, his fifth PCRA petition. The court appointed counsel and

counsel filed a supplemental petition for post-conviction relief on Appellant’s

behalf in which he asserted Miller as an exception to the PCRA time bar

under 42 Pa.C.S. § 9545(b)(1)(iii). Appellant sought and was granted a stay

of the PCRA decision pending the outcome of a certiorari petition in

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013) (holding Miller

was not retroactive to cases on collateral review).       Following denial of

certiorari on June 9, 2014, the court lifted the stay and dismissed the

petition as untimely.

     Appellant timely appealed to this Court and challenged his mandatory

life sentence without possibility of parole in light of Miller, as well as our

Supreme Court’s decision in Cunningham that Miller was not retroactive.

We dismissed the petition because it was facially untimely and Appellant had



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not proven a timeliness exception.      See Commonwealth v. House, 120

A.3d 1055 (Pa.Super. 2015) (unpublished memorandum). Appellant sought

allowance of appeal.

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

Montgomery, which overruled Cunningham by holding that that Miller

was to be given retroactive effect.     By per curiam order of February 11,

2016, our Supreme Court granted Appellant’s petition for allowance of

appeal, vacated our order, and remanded the matter to this Court for further

proceedings consistent with Montgomery.         Commonwealth v. House,

2016 Pa. LEXIS 196 (Feb. 11, 2016).

     Our disposition is controlled by Commonwealth v. Secreti, 2016 PA

Super 28, 2016 Pa. Super. LEXIS 80 (Pa.Super. Feb. 9, 2016), which was

decided by this Court following issuance of Montgomery.           Secreti was

sentenced to automatic life imprisonment without possibility of parole for

committing first-degree murder as a juvenile.      He, like Appellant, filed a

PCRA petition seeking relief under Miller within sixty days of that decision,

alleging that Miller was retroactive.    Relief was denied.   Secreti was on

appeal when Montgomery was decided.          The Secreti Court vacated and

remanded for further proceedings consistent with Montgomery.          We held

that (1) Miller applied retroactively to Secreti's sentence for purposes of the

PCRA's timeliness exception under 42 Pa.C.S. § 9545(b)(1)(iii); (2) Secreti's



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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, we vacate the order of the PCRA court, vacate

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



Date: 4/7/2016




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