J-S15001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

BRANDON K. SUMMERS,

                            Appellant                No. 1257 EDA 2015


                   Appeal from the PCRA Order April 14, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0005890-2004


BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                        FILED MARCH 09, 2016

        Appellant, Brandon K. Summers, appeals pro se from the order

denying, as untimely, his petition for collateral review filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.          Appellant’s

claims primarily concern whether the United States Supreme Court’s

decision in Miller v. Alabama, 132 S.Ct. 2455 (2012), is retroactive in

effect, so as to satisfy the retroactivity exception to the PCRA’s time-bar, 42

Pa.C.S. § 9545(b)(1)(iii) (“retroactivity exception”).     The PCRA court ruled

that Miller was not retroactive due to the Pennsylvania Supreme Court’s

decision in Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013).                In

light of the United States Supreme Court’s recent decision in Montgomery

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S15001-16



v. Louisiana, No. 14-280, 2016 WL 280758 (U.S. 2016), which effectively

overruled Cunningham on the question of Miller’s retroactivity, we hold

that Miller is retroactive and, therefore, it satisfies the PCRA’s retroactivity

exception.    Accordingly, we reverse the order denying Appellant’s PCRA

petition, vacate his life sentence for his second-degree murder conviction,

and remand for further proceedings.

      On December 8, 2005, a jury found Appellant guilty of second-degree

murder, robbery, and conspiracy, for his role in the shooting death of a

Widener University student, John Lacey, near a tavern adjacent to that

school. Appellant was seventeen years old when he committed the crime.

On January 23, 2006, the trial court sentenced Appellant to a mandatory

term of life imprisonment without the possibility of parole (LWOP) for second

degree murder, from which Appellant filed a timely direct appeal. This Court

affirmed his judgment of sentence on July 7, 2008, and our Supreme Court

ultimately   denied   his   petition   for   allowance   of   appeal.      See

Commonwealth v. Summers, 959 A.2d 974 (Pa. 2008) (unpublished

memorandum), appeal denied, 966 A.2d 571 (Pa. 2009).

      Appellant filed his first PCRA petition pro se on February 21, 2007. On

April 9, 2007, the PCRA court dismissed that petition, without prejudice,

concluding that it was prematurely filed as Appellant’s direct appeal was still

pending. Appellant filed his second, pro se PCRA petition on April 24, 2009.




                                       -2-
J-S15001-16



Appointed counsel ultimately filed a Turner/Finley1 no-merit letter, and the

PCRA court dismissed that petition by order dated March 30, 2010.

Appellant filed his third, pro se PCRA petition on June 16, 2010.                      That

petition was dismissed as untimely filed by order dated November 19, 2010.

It does not appear that Appellant appealed from that decision.

       The instant matter concerns Appellant’s pro se PCRA petition filed on

July 23, 2012 (hereinafter, “the Petition”), in which Appellant sought relief

under Miller less than 30 days after that decision was issue by the United

States Supreme Court.             The PCRA court appointed counsel to assist

Appellant and issued an order on August 23, 2013, holding the Petition in

abeyance pending the outcome of Cunningham.                           Cunningham was

decided on October 30, 2013. On July 8, 2014, the PCRA court vacated its

order holding the Petition in abeyance, and ordered counsel to file an

amended petition or a no-merit letter.              Subsequently, appointed counsel

filed a no-merit letter and a request to withdraw as counsel on July 29,

2014, relying on Cunningham. On July 31, 2014, the PCRA court issued a

Pa.R.Crim.P. 907 notice of its intent to dismiss the Petition without a

hearing,    and    a   separate    order       permitting   counsel    to   withdraw    his

appearance. Appellant filed a timely response to that notice on August 18,



____________________________________________


1
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988).



                                           -3-
J-S15001-16



2014.    However, on April 14, 2015, the PCRA court dismissed the Petition

without a hearing.

        Appellant filed a timely, pro se notice of appeal on May 1, 2015. The

PCRA court did not order him to file a Pa.R.A.P. 1925(b) statement, but it

did issue a Rule 1925(a) opinion on October 2, 2015.

        Appellant now presents the following questions for our review:

        [1.] Whether the PCRA Court committed an error of law when
        refusing to apply Miller v. Alabama, retroactive to Appellant on
        collateral review?

        [2.] Whether the PCRA Court committed an error of law when
        refusing to hold that Appellant's mandatory sentence of life[]
        without parole violates both the Eighth Amendment to the U.S.
        Constitution[,] [and] Article 1[,] Section 13 of the Pennsylvania
        Constitution[,] and [is] a violation of equal protection under the
        Fourteenth Amendment of the U.S. Constitution?

        [3.] Did the PCRA Court error in refusing to grant state habeas
        relief?

        [4.] Did the PCRA Court abuse its discretion in not holding an
        evidentiary hearing?

        [5.] Was the PCRA Petition timely filed?

Appellant’s Brief, at 4.

        Appellant’s first, second, and fifth issues are resolved herein by our

application of Montgomery.           Because we resolve those matters in

Appellant’s favor, it is unnecessary to address his third and fourth claims.

        Initially, we reiterate that our standard of review regarding an order

denying post conviction relief under the PCRA is whether the determination

of the court is supported by the evidence of record and is free of legal error.



                                      -4-
J-S15001-16



Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). This Court

grants great deference to the findings of the PCRA court, and we will not

disturb those findings merely because the record could support a contrary

holding.     Commonwealth v. Touw, 781 A.2d 1250, 1252 (Pa. Super.

2001).      “However, we afford no such deference to its legal conclusions.

Where the petitioner raises questions of law, our standard of review is de

novo and our scope of review plenary.” Commonwealth v. Ford, 44 A.3d

1190, 1194 (Pa. Super. 2012) (internal citations omitted).

        The issue before us is whether the PCRA court correctly ruled that

Appellant’s Miller claim failed to satisfy a timeliness exception to the PCRA’s

one-year time-bar.       The PCRA’s time limitations implicate our jurisdiction

and may not be altered or disregarded in order to address the merits of a

petition.    See Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.

2007). Under the PCRA, any petition for post-conviction relief, including a

second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the exceptions set forth

in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. That section states, in relevant

part:

        (b) Time for filing petition.--

            (1) 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:

               (i) the failure to raise the claim previously was the
               result of interference by government officials with

                                        -5-
J-S15001-16


               the presentation of the claim in violation of the
               Constitution or laws of this Commonwealth or the
               Constitution or laws of the United States;

               (ii) the facts upon which the claim is predicated were
               unknown to the petitioner and could not have been
               ascertained by the exercise of due diligence; or

               (iii) 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.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).     Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Here, it is undisputed that the Petition is untimely on its face.

Appellant must, therefore, avail himself of one the timeliness exceptions for

this Court to have jurisdiction to review the merits of his claim. As noted

above, Appellant argues the applicability of the retroactivity exception set

forth in Section 9545(b)(1)(iii). The PCRA court denied Appellant’s petitions

because   it     determined    that   “the   Pennsylvania   Supreme      Court   [in

Cunningham] found that the holding of the Supreme Court of the United

States in Miller v. Alabama does not apply retroactively in Pennsylvania.”

Trial Court Opinion, 10/2/15, at 4.

      The line of Eighth Amendment jurisprudence at issue began with the

United States Supreme Court’s landmark decision in Roper v. Simmons,

543 U.S. 551 (2005), which held that the Eighth Amendment prohibits

capital punishment for crimes committed by juveniles. The Supreme Court



                                        -6-
J-S15001-16



took another step in Graham v. Florida, 556 U.S. 1220 (2009), extending

the reasoning of Roper to bar sentences of life imprisonment for non-

homicide crimes committed by juveniles.         Finally, in Miller, relying on

Roper and Graham, the United States Supreme Court held that the Eighth

Amendment also prohibits mandatory, LWOP sentences for juveniles.

        In Pennsylvania, this line of decisions has had a dramatic effect on the

treatment of juveniles convicted of first- or second-degree murder. Prior to

Roper, the crimes of first- and second-degree murder could only result in

capital punishment (for first-degree murder), or LWOP.       See 18 Pa.C.S. §

1102(a)-(b) (pre-2012 amendment).         Consequently, after Roper, the only

sentence applicable to juveniles who committed either first- or second-

degree murder in Pennsylvania was LWOP.          Graham has had less of an

effect, as only a few non-homicide crimes carry the penalty of life

imprisonment in Pennsylvania.       See e.g., 42 Pa.C.S. § 9720.2.       Miller,

however, effectively eliminated all sentencing options for juveniles who

committed first- or second-degree murder in Pennsylvania. Consequently, in

reaction to Miller, Pennsylvania’s Legislature passed 18 Pa.C.S. § 1102.1,

which amended 18 Pa.C.S. § 1102 by providing a separate sentencing

scheme for juveniles convicted of first- or second-degree murder “after June

24, 2012[.]”     18 Pa.C.S. § 1102.1(a), (c). Miller was decided on June 25,

2012.

        Left unresolved in the immediate wake of Miller was whether that

decision was to be afforded retroactive effect.         In Pennsylvania, that

                                      -7-
J-S15001-16



question was (mostly) resolved in Cunningham. In that case, our Supreme

Court considered a timely PCRA petition wherein the petitioner claimed that

his 2002 mandatory LWOP sentence, imposed for a second-degree murder

that he committed as a juvenile, had violated the Eighth Amendment’s

prohibition of cruel and unusual punishments.2 Applying Teague v. Lane,

489 U.S. 288 (1989) (plurality),3 the Cunningham Court flatly rejected

Cunningham’s argument that Miller is a substantive constitutional rule
____________________________________________


2
 Cunningham originally had relied on Roper to make this argument in the
PCRA court. Cunningham, 81 A.3d at 2.

       The post-conviction court denied the petition without an
       evidentiary hearing, and the Superior Court affirmed in a
       memorandum opinion, concluding that Roper had no bearing on
       life sentences. [The a]ppellant filed a petition for allowance of
       appeal, which was held in abeyance pending the disposition of a
       petition seeking discretionary review before this Court in
       Commonwealth v. Batts, [66 A.3d 26 (Pa. 2013)]. The Batts
       case concern[ed] a challenge to the imposition of a mandatory
       life sentence for crimes committed by a minor asserted on direct
       appeal.

Cunningham, 81 A.3d at 2. Miller was decided while a decision in
Cunningham was still pending. Consequently, the Pennsylvania Supreme
Court permitted the parties in Cunningham to supplement and/or reargue
their positions in light of Miller. Id. at 5.
3
  As the Cunningham Court explained, Teague and its progeny expressed
a general rule that new constitutional rules are not afforded retroactive
effect, subject to two exceptions. Cunningham, 81 A.3d at 4. The Teague
exceptions are for “rules prohibiting a certain category of punishment for a
class of defendants because of their status or offense, … and watershed
rules of criminal procedure implicating the fundamental fairness and
accuracy of the criminal proceeding.”       Id. (internal citations omitted).




                                           -8-
J-S15001-16



entitled to retroactive effect under Teague, concluding that, “by its own

terms,” Miller “is procedural and not substantive for purposes of Teague.”

Cunningham, 81 A.3d at 1.              The Court did not consider an alternative

argument for retroactivity—whether Miller constituted a ‘watershed rule of

criminal    procedure’—because          Cunningham   had   “not   developed   his

arguments in such terms.” Id. The Pennsylvania Supreme Court’s decision

in Cunningham, that Miller does not apply retroactively, mirrored the

decisions of at least four other states, including Louisiana; however, at least

ten states ruled that Miller is retroactive.4

____________________________________________


4
  The Eighth Circuit recognized a split in state jurisdictions considering
Miller’s retroactivity, as they stood less than a year before Montgomery
was decided:

       State high courts are split.     Five held that Miller is not
       retroactive. Ex parte Williams, ––– So.3d ––––, ––––, 2015
       WL 1388138, at *13 (Ala. Mar. 27, 2015); People v. Carp, 496
       Mich. 440, 852 N.W.2d 801, 832 (2014); State v. Tate, 130
       So.3d 829, 841 (La. 2013); Commonwealth v. Cunningham,
       622 Pa. 543, 81 A.3d 1, 10 (2013); Chambers v. State, 831
       N.W.2d 311, 331 (Minn. 2013).         Ten held that Miller is
       retroactive. See Falcon v. State, ––– So.3d ––––, ––––, 2015
       WL 1239365, at *9 (Fla. Mar. 19, 2015); Aiken v. Byars, 410
       S.C. 534, 765 S.E.2d 572, 578 (2014); State v. Mares, 335
       P.3d 487, 508 (Wyo. 2014); Petition of State, 166 N.H. 659,
       103 A.3d 227, 236 (2014); People v. Davis, 379 Ill.Dec. 381, 6
       N.E.3d 709, 722–23 (Ill. 2014); Ex parte Maxwell, 424 S.W.3d
       66, 75 (Tex.Crim.App. 2014); State v. Mantich, 287 Neb. 320,
       842 N.W.2d 716, 731 (2014); Diatchenko v. Dist. Att'y for
       Suffolk Dist., 466 Mass. 655, 1 N.E.3d 270, 281 (2013); State
       v. Ragland, 836 N.W.2d 107, 117 (Iowa 2013); Jones v.
       State, 122 So.3d 698, 703 (Miss. 2013).

(Footnote Continued Next Page)


                                           -9-
J-S15001-16



      In Montgomery, the United States Supreme Court finally addressed

the split in state decisions that had considered Miller’s retroactivity.

Applying Teague, the Montgomery Court held “that Miller announced a

substantive rule of constitutional law.” Montgomery, 2016 WL 280758, at

*15. Contrary to our Supreme Court’s reasoning in Cunningham that the

rule announced in Miller was purely procedural in nature, the Montgomery

Majority reasoned:

            To be sure, Miller's holding has a procedural component.
      Miller requires a sentencer to consider a juvenile offender's
      youth and attendant characteristics before determining that life
      without parole is a proportionate sentence. Louisiana contends
      that because Miller requires this process, it must have set forth
      a procedural rule.       This argument, however, conflates a
      procedural requirement necessary to implement a substantive
      guarantee with a rule that “regulate[s] only the manner of
      determining the defendant's culpability.” There are instances in
      which a substantive change in the law must be attended by a
      procedure that enables a prisoner to show that he falls within the
      category of persons whom the law may no longer punish. For
      example, when an element of a criminal offense is deemed
      unconstitutional, a prisoner convicted under that offense
      receives a new trial where the government must prove the
      prisoner's conduct still fits within the modified definition of the
      crime. In a similar vein, when the Constitution prohibits a
      particular form of punishment for a class of persons, an affected
      prisoner receives a procedure through which he can show that
      he belongs to the protected class.              Those procedural
      requirements do not, of course, transform substantive rules into
      procedural ones.

           The procedure Miller prescribes is no different. A hearing
      where “youth and its attendant characteristics” are considered as
                       _______________________
(Footnote Continued)

Martin v. Symmes, 782 F.3d 939, 945 (8th Cir. 2015), abrogated by
Montgomery, supra.



                                           - 10 -
J-S15001-16


      sentencing factors is necessary to separate those juveniles who
      may be sentenced to life without parole from those who may
      not. The hearing does not replace but rather gives effect to
      Miller's substantive holding that life without parole is an
      excessive sentence for children whose crimes reflect transient
      immaturity.

Montgomery, at *14 (internal citations omitted).

      Thus, the Montgomery Court concluded that: “Like other substantive

rules, Miller is retroactive because it ‘necessarily carr[ies] a significant risk

that a defendant’—here, the vast majority of juvenile offenders—‘faces a

punishment that the law cannot impose upon him.’” Montgomery, at *13.

Accordingly, Montgomery has effectively overruled our Supreme Court’s

decision in Cunningham regarding Miller’s retroactivity.

      Turning back to the instant matter, it is well-settled that:

      Subsection (iii) of Section 9545[(b)(1)] has two requirements.
      First, it provides 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 provided
      in this section. Second, it provides that the right “has been
      held” by “that court” to apply retroactively. Thus, a petitioner
      must prove that there is a “new” constitutional right and that the
      right “has been held” by that court to apply retroactively. The
      language “has been held” is in the past tense. These words
      mean that the action has already occurred, i.e., “that court” has
      already held the new constitutional right to be retroactive to
      cases on collateral review. By employing the past tense in
      writing this provision, the legislature clearly intended that the
      right was already recognized at the time the petition was filed.

Commonwealth v. Seskey, 86 A.3d 237, 242-43 (Pa. Super. 2014)

(quoting Commonwealth v. Copenhefer, 941 A.2d 646, 649–50 (Pa.

2007)). In Seskey, this Court applied Cunningham to hold that Miller did




                                     - 11 -
J-S15001-16



not satisfy the PCRA’s retroactivity exception as set forth in Section

9545(b)(1)(iii). Id. at 243.

       It is now clear that, in addition to Montgomery’s overruling of

Cunningham, Montgomery has also effectively overruled any decision

relying on Cunningham to reject Miller’s applicability to the PCRA’s

retroactivity exception, as this Court did in Seskey.         In the wake of

Montgomery, it is irrefutable that Miller announced “a constitutional right

that was recognized by the Supreme Court of the United States” and “has

been held by that court to apply retroactively.” 42 Pa.C.S. § 9545(b)(1)(iii);

see also Commonwealth v. Secreti, ___ A.3d ___, 2016 WL 513341, (Pa.

Super. 2016).5 Consequently, the PCRA court’s legal basis for denying the

Petition is no longer valid. Thus, we hereby reverse the order denying the

Petition. Additionally, we vacate Appellant’s mandatory LWOP sentence, as it

is patently illegal under Miller, and remand for further proceedings

consistent with this decision, Miller, and Montgomery.

       Order reversed.           Mandatory LWOP sentence     vacated.      Case

remanded for further proceedings. Jurisdiction relinquished.

       Judge Olson joins this memorandum.


____________________________________________


5
  In Secreti, this Court held that “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. The date of the Montgomery decision (January
25, 2016, as revised on January 27, 2016) will control for purposes of the
60–day rule in Section 9545(b)(2).” Secreti, 2016 WL 513341 at *6.



                                          - 12 -
J-S15001-16



     Judge Platt concurs in the result of this memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2016




                                  - 13 -
