J-S63030-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JOHN F. NOLE

                            Appellant                No. 744 EDA 2015


                   Appeal from the PCRA Order March 2, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0915321-1969


BEFORE: DONOHUE, J., MUNDY, J., and MUSMANNO, J.

JUDGMENT ORDER BY MUNDY, J.:                           FILED MAY 04, 2016

        This case returns to us following remand from the Pennsylvania

Supreme Court.        Specifically, on February 17, 2016, our Supreme Court

granted the petition for allowance of appeal filed by Appellant, John F. Nole,

vacated our previous order affirming the dismissal of Appellant’s petition for

relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A.

§§ 9541-9546, and remanded the case to us for further proceedings

consistent with Montgomery v. Louisiana, 136 S. Ct. 718 (2016). After

careful review, we reverse and remand for resentencing.

        On March 31, 1971, the trial court imposed an aggregate sentence of

life imprisonment without the possibility of parole for first-degree murder1

____________________________________________
1
    18 Pa.C.S.A. § 2502(a).
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and other offenses, committed by Appellant when he was 17-years-old, in

the course of a robbery and murder of an 81-year-old man.2 Appellant’s pro

se seventh PCRA petition, which is the subject of this appeal, asserts that

the United States Supreme Court’s decision in Miller v. Alabama, 132 S.

Ct. 2455 (2012), should be retroactively applied.            Appellant’s Amended

PCRA Petition, 12/18/13, at 3-4.               On March 2, 2015, the PCRA court

dismissed the petition.        On November 24, 2015, we affirmed the PCRA

court’s order.     Commonwealth v. Nole, --- A.3d ---, 2015 WL 7571744

(Pa. Super. 2015) (unpublished judgment order), vacated, 132 A.3d 975

(Pa. 2016). Appellant filed a timely petition for allowance of appeal with our

Supreme Court on December 22, 2015. While that petition was pending, on

January 25, 2016, the United States Supreme Court announced its decision

in Montgomery, holding that Miller’s prohibition on mandatory life

imprisonment without the possibility of parole for juvenile offenders was a

new substantive rule that, under the Constitution, must be applied

retroactively in cases on state collateral review.        Montgomery, supra at

732. Accordingly, our Supreme Court vacated our prior order and remanded
____________________________________________
2
  Our Supreme Court affirmed Appellant’s judgment of sentence on July 11,
1972. Commonwealth v. Nole, 292 A.2d 331 (Pa. 1972). Thereafter,
Appellant filed six PCRA petitions between 1972 and 2008, none of which
garnered him any relief. See Commonwealth v. Nole, 965 A.2d 299 (Pa.
Super. 2008) (unpublished memorandum at 2-4) (affirming the PCRA court’s
dismissal of Appellant’s sixth PCRA as untimely, and setting forth a full
factual and procedural history of Appellant’s PCRA claims), appeal denied
973 A.2d 1006 (Pa. 2009).



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this case to us.     Moreover, this Court, in Commonwealth v. Secreti, ---

A.3d ---, 2016 WL 513341 (Pa. Super. 2016), held that Miller and

Montgomery afford relief to petitioners whose PCRA petitions based on

Miller were on appeal when Montgomery was announced. Id. at *5.

       Based on the foregoing, Appellant is entitled to PCRA relief from his

unconstitutional sentence of mandatory life imprisonment without parole.

See Montgomery, supra; Miller, supra at 2464; Secreti, supra.

Accordingly, we reverse the PCRA court’s March 2, 2015 order, vacate

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

accordance with Montgomery, Miller, and Commonwealth v. Batts, 66

A.3d 286 (Pa. 2013).3

       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.




____________________________________________
3
  We note that the General Assembly passed Section 1102.1 in October 2012
to address Miller, which provides new mandatory minimum sentences for
juveniles convicted of first-degree murder. However, Section 1102.1’s text
limits its application to those “convicted after June 24, 2012[.]”     18
Pa.C.S.A. § 1102.1(a).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2016




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