J-S44016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                         Appellee

                   v.

DONALD ZOLLER, JR.

                         Appellant                      No. 1676 WDA 2014


            Appeal from the PCRA Order Dated October 3, 2014
            In the Court of Common Pleas of Allegheny County
             Criminal Division at No: CP-02-CR-0004839-1986


BEFORE: LAZARUS, J., STABILE, J., and JENKINS, JJ.

MEMORANDUM BY STABILE, J.:                                 FILED JUNE 3, 2016

      This case returns to this Court following a remand from our Supreme

Court. On February 17, 2016, the Court granted the petition for allowance

of appeal filed by Appellant, Donald Zoller, Jr., vacated our previous order

affirming the dismissal of his third 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).                   Upon review, we

reverse and remand.

      Briefly, as a 14 year-old, Appellant was charged as an adult for three

counts of criminal homicide for the stabbing deaths of his three neighbors.

Appellant was convicted and sentenced to three concurrent mandatory

sentences of life imprisonment without the possibility of parole.               After
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exhausting his direct appeal rights and filing two PCRA petitions, on July 31,

2012, 36 days after the Supreme Court of the United States issued Miller v.

Alabama, 132 S. Ct. 2455 (2012),1 Appellant filed a third PCRA petition,

which is the subject of this appeal. Appellant asserted that Miller applied to

his case on collateral review. Relying on Commonwealth v. Cunningham,

81 A.3d 1 (Pa. 2013),2 cert. denied sub nom. Cunningham v.

Pennsylvania, 134 S. St. 2724 (2014), the PCRA court dismissed

Appellant’s third PCRA petition. On August 21, 2015, we affirmed the PCRA

court’s order. Commonwealth v. Zoller, 131 A.3d 101 (Pa. Super. 2015)

(unpublished memorandum), vacated, __ A.3d __, 2016 WL 634102 (Pa.

2016). Appellant filed a petition for allowance of appeal with our Supreme

Court on September 17, 2015. While Appellant’s petition was pending, on

January 25, 2016, the United Stated Supreme Court issued its decision in

Montgomery, holding that Miller’s prohibition against mandatory life

sentences without the possibility of parole for juvenile offenders was a new

____________________________________________


1
  The Court in Miller held that “[m]andatory life without parole for those
under the age of 18 at the time of their crimes violates the Eighth
Amendment’s prohibition on ‘cruel and unusual punishments.’” Miller, 132
S. Ct. at 2460 (emphasis added).
2
  The Supreme Court held that Miller did not apply retroactively to cases on
collateral appeal. Cunningham, 81 A.3d at 9-10 (noting that “nothing in
[a]ppellant’s arguments persuades us that Miller’s proscription of imposition
of mandatory life-without-parole sentences upon offenders under the age of
eighteen at the time their crimes were committed must be extended to those
whose judgments of sentence were final as of the time of Miller’s
announcement”).



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substantive rule that, under the United States Constitution, must be

retroactive in cases on state collateral review. Montgomery, supra at 732.

As a result, our Supreme Court vacated our prior order and remanded this

case to us. In so doing, the Court ordered that, “[t]o the extent necessary,

leave is to be granted to amend the post-conviction petition to assert the

jurisdictional provision of the Post Conviction Relief Act extending to the

recognition of constitutional rights by the Supreme Court of the United

States   which   it   deems   to   be   retroactive.   See   42   Pa.C.S.A.

§ 9545(b)(1)(iii).”   Commonwealth v. Zoller, 376 WAL 2015 (Pa. filed

February 17, 2016).       Therefore, consistent with our Supreme Court’s

direction in light of Montgomery, we reverse the PCRA court’s order

dismissing Appellant’s third PCRA petition and remand the case to the PCRA

court for further proceedings consistent with our Supreme Court’s order and

this Memorandum.

      Order reversed. Case remanded. Jurisdiction relinquished.

      Judge Jenkins joins this memorandum.

      Judge Lazarus files a concurring statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/3/2016


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