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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                   v.                       :
                                            :
JOHN THOMPSON JR,                           :
                                            :
                          Appellant         :     No. 1703 EDA 2015

                   Appeal from the PCRA Order May 27, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0712371-1979

BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY DUBOW, J.:                              FILED March 21, 2016

     Appellant John Thompson appeals from the Order denying as untimely

his fourth Petition filed pursuant to Post-Conviction Relief Act (“PCRA”), 42

Pa.C.S. §9542-9545, and his Petition for a Writ of Habeas Corpus. In light of

Montgomery v. Louisiana, 136 S.Ct. 718 (2016), and Commonwealth v.

Secreti, __ A.3d __, 2016 WL 513341 (Pa. Super. filed Feb. Feb. 9, 2016),

we   vacate     and     remand   for   further   proceedings   consistent   with

Montgomery.

     On February 6, 1980, a jury found Appellant guilty of first-degree

murder. The trial court sentenced Appellant, then 17 years old, to a

mandatory term of life imprisonment without the possibility of parole

(“LWOP”). This Court affirmed the judgment of sentence, and our Supreme

Court denied allocatur on May 3, 1985.           Appellant thereafter filed four
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Petitions seeking collateral relief pursuant to the PCRA, which were all

denied.

        On June 21, 2010, Appellant filed the instant pro se PCRA Petition

raising a claim pursuant to Graham v. Florida, ___ U.S. ___. 130 S.Ct.

2011 (2010). On July 18, 2012, Appellant amended his Petition to assert the

new constitutional right recognized on June 25, 2012, in Miller v. Alabama,

132 S.Ct. 2455 (2012) (prohibiting mandatory sentences of LWOP for

juvenile offenders). On December 16, 2013, Appellant filed a second

amendment to his Petition, providing further discussion of Miller, supra,

and its companion case, Jackson v. Hobbs, 132 S.Ct. 2455 (2012).1 On

December 27, 2013, Appellant filed a Petition for a Writ of Habeas Corpus,

also asserting his Miller/Jackson claim.

        On June 16, 2014, pursuant to Pa.R.Crim.P. 907, the trial court filed a

notice of intent to dismiss both the 2010 PCRA Petition and the Petition for a

Writ of Habeas Corpus. On May 27, 2015, the trial court concluded the issue

raised in Appellant’s Petition for a Writ of Habeas Corpus was cognizable

under     the   PCRA, and denied both Petitions as untimely based on

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

Miller/Jackson did not create a new constitutional right that applies

retroactively). On June 5, 2015, Appellant appealed to this Court.


1
  Miller pertained to a case decided on direct appeal; Jackson pertained to
a state post-conviction case.



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      On January 25, 2016, while Appellant’s PCRA appeal was pending, the

U.S. Supreme Court decided Montgomery, supra, holding that Miller must

be applied retroactively by the States.

      Appellant presents the following questions for our review:

      (a) Did the lower court fail to adjudicate Appellant’s writ of
      habeas corpus under the proper standard, as held under 42
      Pa.C.S. § 6501 et al., where Appellant challenged the
      Pennsylvania State Constitution under Article 1, Section(s) 9, 13
      and 14?

      (b) Did the lower court fail to adjudicate Appellant’s Post-
      Conviction Relief Act Petition under the proper standard, where
      the United States Supreme Court was implicit in their decision of
      retroactivity under Jackson v. Hobbs, __ U.S. __, 132 S.Ct.
      2455?

Appellant’s Brief at 3.

      Our standard of review of the denial of a PCRA petition is well-settled.

We are limited to examining whether the evidence of record supports the

court’s determination and whether its decision is free of legal error.

Secreti, supra at *2 (citation omitted). This Court grants great deference

to the findings of the PCRA court if supported by the record, but we give no

such deference to the court’s legal conclusions. Id. (citations omitted).

      Appellant first challenges the trial court’s disposition under the PCRA of

his Petition for a Writ of Habeas Corpus.        We conclude the trial court

properly did so.

      It is well-settled that the PCRA provides the “sole means of obtaining

collateral relief and encompasses all other common law and statutory



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remedies for the same purpose that exist when this subchapter takes effect,

including habeas corpus[.]”    42 Pa.C.S. § 9542. See Commonwealth v.

West, 938 A.2d 1034, 1043 (Pa. 2007) (“[T]he PCRA subsumes all forms of

collateral relief ... to the extent a remedy is available under such

enactment.”) (emphasis omitted); and Commonwealth v. Peterkin, 722

A.2d 638, 640 (Pa. 1998) (“The writ [of habeas corpus ] continues to exist

only in cases in which there is no remedy under the PCRA.”).

      Claims based on a “newly recognized constitutional right” are

cognizable under the PCRA pursuant to 42 Pa.C.S. § 9545(b)(1)(iii) and (2). 2

Accordingly, the trial court properly considered Appellant’s “subsequent

iteration of Miller” raised in his Petition for a Writ of Habeas Corpus under

the PCRA.   Trial Court Order and Memorandum Op., dated May 27, 2015, at

2.

      Appellant’s second issue challenges the LWOP imposed upon him as a

juvenile. The PCRA court denied Appellant’s request for collateral relief after

concluding that Cunningham, supra, explicitly provided that Miller did not

create a new constitutional right that applies retroactively.       This issue

2
  42 Pa.C.S. §9545(b)(1)(iii) provides: “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 … 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.” Subsection (b)(2) provides: “Any
petition invoking an exception provided in paragraph (1) shall be filed within
60 days of the date the claim could have been presented.”



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implicates the holding of the U.S. Supreme Court’s recent decision in

Montgomery, supra.

      In Secreti, supra, this Court recently recognized that “Montgomery

has clarified Miller with regard to its substantive law and retroactivity.

Consequently, … Cunningham, supra, no longer controls in this context.”

Secreti, supra at *5. The panel concluded that “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

petition[ was] filed.”      Secreti, supra at *6.     Thus, as a result of

Montgomery, “the Miller rule of law ‘has been held’ to be retroactive for

purposes of collateral review as of the date of the Miller decision on June

25, 2012.” Secreti at *6, citing Commonwealth v. Abdul-Salaam, 812

A.2d 497, 501-2 (Pa. 2002) (noting that the “language ‘has been held’ in 42

Pa.C.S. § 9545(b)(1)(iii) means that a retroactivity determination must exist

at the time that the Petition is filed.”).

      The instant case “represents an example of the unique situation

implicating those PCRA petitions seeking Miller relief which were filed in the

time gap following Miller but before Montgomery.” Secreti, supra, at *5.

Here, Appellant amended his current PCRA petition on July 18, 2012, within

60 days of the June 25, 2012 Miller decision, as required by Section

9545(b)(2), and asserted Miller’s substantive law as an exception to the

PCRA timeliness requirements, as provided in Section 9545(b)(1)(iii). While



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the appeal of the denial of his PCRA Petition was pending in this Court, the

U.S. Supreme Court decided Montgomery.

         Because Appellant had timely raised his Miller claim, and his Petition

was pending on appeal at the time Montgomery was decided, Appellant’s

second issue is cognizable under the rule announced in Montgomery.

Accordingly, we reverse the PCRA court’s order, vacate Appellant’s judgment

of   sentence,      and      remand    for    resentencing    in   accordance   with

Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013).3 See Secreti, supra

at *6.

         Order   reversed;    case    remanded     for   resentencing.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/21/2016




3
  In Batts, supra, the Pennsylvania Supreme Court recognized that “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 without parole on a juvenile.” Batts, 66 A.3d. at 296.



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