J-S65034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

DENNIS FLANAGAN

                         Appellant                 No. 3398 EDA 2014


               Appeal from the PCRA Order November 7, 2014
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-MD-0002831-1981


BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.

JUDGMENT ORDER BY JENKINS, J.:                     FILED MARCH 09, 2016

      Appellant Dennis Flanagan appeals from the order of the Bucks County

Court of Common Pleas denying Appellant’s petition filed pursuant to the

Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.       Pursuant to this

Court’s decision in Commonwealth v. Secreti, 578 WDA 2015 (Pa.Super.,

2/9/16), the order is reversed, Appellant’s judgment of sentence is

VACATED, and this case is remanded for resentencing.

      On January 25, 2016, the Supreme Court of the United States held in

Montgomery v. Louisiana, ___ U.S. ___, 2016 WL 280758 *12 (filed

January 25, 2016, as revised on January 27, 2016), that its decision in

Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012), applies

retroactively.   Miller held that it is unconstitutional for state courts to

impose an automatic life sentence without possibility of parole upon a
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homicide defendant for a murder committed while the defendant was a

juvenile.

      Shortly after the issuance of Montgomery, this Court entered a

published opinion in Secreti. There, the appellant was sentenced to

automatic life imprisonment without possibility of parole for committing first-

degree murder as a juvenile. On June 25, 2012, the United States Supreme

Court issued its decision in Miller. On August 15, 2012, the appellant filed a

timely PCRA petition seeking relief under Miller.      On February 9, 2016,

following Montgomery, this Court held that (1) Miller applied retroactively

to the appellant’s sentence under the PCRA’s retroactivity provision, 42

Pa.C.S. § 9545(b)(1)(iii); (2) the appellant’s sentence was unconstitutional

under Miller, and (3) the appellant was entitled to a new sentencing

hearing.

      Secreti squarely applies to this case. In 1981, Dennis Flanagan pled

guilty to first-degree murder for a murder that he committed as a juvenile.

Appellant also pled guilty to robbery, theft by unlawful taking, receiving

stolen property and conspiracy and was given a concurrent sentence of 10 to

20 years’ incarceration. On March 2, 2001, a PCRA court granted Appellant’s

PCRA petition, allowing Appellant to withdraw his guilty plea. This Court and

the Supreme Court of Pennsylvania affirmed the PCRA order granting relief.

Following a jury trial in February, 2005, Appellant was found guilty of

second-degree murder, robbery, theft, receiving stolen property, and

conspiracy to commit robbery.       On February 25, 2005, the trial court

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sentenced Appellant to mandatory life imprisonment without parole.        On

August 9, 2012, Appellant filed a PCRA petition seeking relief under Miller.

As in Secreti, (1) Miller applies retroactively to Appellant’s sentence under

42 Pa.C.S. § 9545(b)(1)(iii); (2) Appellant’s sentence is unconstitutional

under Miller, and (3) Appellant is entitled to a re-sentencing in accordance

with Miller.

      Accordingly, we reverse the PCRA court’s order denying relief to

Appellant under Miller, we vacate Appellant’s judgment of sentence, and we

remand to the court of common pleas for resentencing.

      Order reversed.        Judgment of sentence vacated.   Case remanded.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2016




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