J-S04039-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 Appellee                :
                                         :
                    v.                   :
                                         :
MICHAEL LEE BOURGEOIS,                   :
                                         :
                 Appellant               :     No. 1248 MDA 2014

                 Appeal from the PCRA Order July 7, 2014
            in the Court of Common Pleas of Lancaster County,
           Criminal Division, at No(s): CP-36-CR-0004224-2001
                       and CP-36-CR-0004975-2001

BEFORE:    BOWES, ALLEN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED JULY 29, 2016

     This matter comes before us on remand from the Pennsylvania

Supreme Court, following its entry of an order vacating our affirmance of the

dismissal of the petition filed by Michael Lee Bourgeois (Appellant) pursuant

to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We now

reverse the PCRA court’s order, vacate Appellant’s judgment of sentence,

and remand for resentencing.

     In 2003, Appellant was sentenced to two consecutive terms of life

imprisonment without possibility of parole following his negotiated guilty

plea to two counts of first-degree murder based upon events that took place

when Appellant was 17 years old. The order from which Appellant appealed

denied his request for PCRA relief based upon the United States Supreme



*Retired Senior Judge assigned to the Superior Court.
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Court’s decision in Miller v. Alabama, 132 S.Ct. 2455 (2012), in which the

Court held unconstitutional mandatory sentences of life imprisonment

without possibility of parole imposed upon individuals who were juveniles at

the time they committed homicides.          The PCRA court determined that

Appellant did not properly invoke the newly-recognized-constitutional-right

exception to the PCRA’s one-year timeliness requirement provided in 42

Pa.C.S.   §9545(b)(1)(iii)   because       our    Supreme     Court     held    in

Commonwealth v. Cunningham, 81 A.3d 1, 11 (Pa. 2013), that Miller

does not apply retroactively.       We affirmed based upon Cunningham.

Commonwealth       v.   Bourgeois,    120    A.3d   1067    (Pa.   Super.   2015)

(unpublished memorandum).

     While Appellant’s subsequent petition for allowance of appeal to our

Supreme   Court   was    pending,    the   U.S.   Supreme    Court    decided   in

Montgomery v. Louisiana, 136 S.Ct. 718 (2016), that Miller announced a

new substantive rule of law which applies retroactively.       On February 24,

2016, our Supreme Court entered a per curiam order granting Appellant’s

petition for allowance of appeal, vacating this Court’s order, and remanding

for further proceedings consistent with Montgomery. Commonwealth v.

Bourgeois, 132 A.3d 983 (Pa. 2016).

     We directed the parties to brief what effect, if any, the fact that

Appellant’s sentence was imposed as a term of a negotiated plea agreement

has upon Appellant’s request for relief.    Neither party’s brief presents any


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authority to support distinguishing this case from one in which a mandatory

sentence of life imprisonment without the possibility of parole was imposed

upon a juvenile after a trial. Accordingly, we decline to find that Appellant’s

claim in this case, in which he bargained for life imprisonment at a time

when he faced a possible death sentence, falls outside the reach of Miller

and Montgomery.

      Under    Miller,   Montgomery,       and   this   Court’s   decision   in

Commonwealth v. Secreti, 134 A.3d 77 (Pa. Super. 2016), Appellant is

entitled to PCRA relief in the form of resentencing following judicial

consideration of appropriate age-related factors.1

      The Commonwealth does not dispute that Appellant is entitled to

resentencing consistent with Miller and Montgomery.          Commonwealth’s

Brief, 6/7/2016, at 11. However, it suggests that further proceedings in this

Court should await guidance from our Supreme Court on how to resentence

juveniles who obtain relief pursuant to Miller and Montgomery. See id. at



1
      [A]t a minimum [the sentencing court] should consider a
      juvenile’s age at the time of the offense, his diminished
      culpability and capacity for change, the circumstances of the
      crime, the extent of his participation in the crime, his family,
      home and neighborhood environment, his emotional maturity
      and development, the extent that familial and/or peer pressure
      may have affected him, his past exposure to violence, his drug
      and alcohol history, his ability to deal with the police, his
      capacity to assist his attorney, his mental health history, and his
      potential for rehabilitation.

Secreti, 134 A.3d at 81-82 (internal quotation marks and citations omitted).

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13-14 (citing Commonwealth v. Batts, 135 A.3d 176 (Pa. 2016)).2                We

see no reason to hold the case in this Court pending our Supreme Court’s

decision.    The Commonwealth and Appellant may address their respective

positions on the form and substance of Appellant’s resentencing to the trial

court.

         Order reversed. Judgment of sentence vacated. Case remanded for

resentencing. Jurisdiction relinquished.

         Judge Allen did not participate in the consideration or decision of this

memorandum.



2
    The grant of allowance of appeal includes, inter alia, the following issues:

         In Miller v. Alabama, the U.S. Supreme Court outlawed
         mandatory life without parole for juveniles (LWOP), and
         instructed that the discretionary imposition of this sentence
         should be “uncommon” and reserved for the “rare juvenile
         offender whose crime reflects irreparable corruption.”

               i. There is currently no procedural mechanism to
               ensure that juvenile LWOP will be “uncommon” in
               Pennsylvania.     Should this Court exercise its
               authority under the Pennsylvania Constitution to
               promulgate procedural safeguards including (a) a
               presumption    against  juvenile   LWOP;     (b)  a
               requirement for competent expert testimony; and (c)
               a “beyond a reasonable doubt” standard of proof?

               ii. The lower court reviewed the Petitioner’s sentence
               under the customary abuse of discretion standard.
               Should the Court reverse the lower court’s
               application of this highly deferential standard in light
               of Miller?

Batts, 135 A.3d at 176.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/29/2016




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