J-S59003-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

RICKY LEE OLDS,

                         Appellant                  No. 1319 WDA 2014


                Appeal from the PCRA Order July 15, 2014
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0006857-1979
                            CP-02-CR-0007090-1979


BEFORE: BOWES, DONOHUE, AND FITZGERALD,*

MEMORANDUM BY BOWES, J.:                            FILED APRIL 12, 2016

     This matter is again before this panel upon remand from the Supreme

Court.   We vacate the September July 15, 2014 PCRA order, vacate

Appellant’s judgment of sentence, and remand for resentencing.

     On April 2, 1980, Appellant was found guilty of second-degree murder,

robbery, and conspiracy based on a crime that he committed when he was

fourteen years old.      On April 28, 1981, Appellant was sentenced to a

mandatory term of life imprisonment without parole (“LWOP”) based upon

his second-degree murder conviction. On November 25, 1983, we affirmed

the judgment of sentence.       Commonwealth v. Olds, 469 A.2d 1072

(Pa.Super. 1983).




* Former Justice specially assigned to the Superior Court.
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      Appellant litigated his first request for post-conviction relief, which was

counseled, through the trial and appellate courts from 1984 through 1992.

During that proceeding, the court denied relief, we reversed, and our

Supreme Court reversed this Court, reinstating the denial of post-conviction

relief. Appellant filed his second petition collaterally attacking his judgment

of sentence on July 13, 2010. Relief was denied, we affirmed, and our

Supreme Court denied allowance of appeal.

      Appellant filed a third PCRA petition on August 20, 2012, within sixty

days of the June 25, 2012 issuance of Miller v. Alabama, 132 S.Ct. 2455

(2012), which held that a mandatory sentence of LWOP could not be

imposed upon juvenile homicide offenders due to the Eighth Amendment’s

prohibition against cruel and unusual punishment. Counsel was appointed.

The PCRA court stayed the PCRA proceeding until the Pennsylvania Supreme

Court ruled on whether Miller would be given full retroactive effect to PCRA

petitioners. Our Supreme Court thereafter decided that Miller would not be

applied in the post-conviction context. Commonwealth v. Cunningham,

81 A.3d 1 (Pa. 2013).

      The PCRA court herein then dismissed Appellant’s August 20, 2012

PCRA petition. On appeal, This panel affirmed. Commonwealth v. Olds,

2015 WL 650915 (unpublished memorandum, Oct. 27, 2015). Before this

panel, Appellant claimed that his PCRA petition was timely filed under the

third exception to the PCRA’s mandate that all PCRA petitions must be filed

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within one year of when a petitioner’s judgment of sentence became final.

That exception provides that a PCRA petition is considered timely if “the

right asserted [in the petition] 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)(iii). We noted

that the exception was inapplicable in that neither the United States

Supreme Court nor the Pennsylvania Supreme Court had determined that

Miller applied retroactively.   On February 25, 2016, our Supreme Court

reversed and remanded the October 27, 2015 decision of this panel due to

the issuance of Montgomery v. Louisiana, 136 S.Ct. 718 (2016), which

overruled Cunningham by holding that Miller was to be given retroactive

effect.

     Shortly after Montgomery's issuance, this Court disseminated a

published opinion in Commonwealth v. Secreti, 2016 WL 513341

(Pa.Super. 2016).   Therein, Secreti had been sentenced to automatic life

imprisonment without the possibility of parole for committing first degree

murder as a juvenile, and filed a PCRA petition seeking relief under Miller.

Relief was denied, and Secreti was on appeal when Montgomery was

decided.   On February 9, 2016, following issuance of Montgomery, this

Court in Secreti noted that the Miller rule of law had been held to be

retroactive for purposes of collateral review under Montgomery.           We

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decided that, since Secreti had invoked 42 Pa.C.S. § 9545(b)(1)(iii), he was

entitled have his judgment of sentence vacated under Miller and to be re-

sentenced in accordance with the dictates of our Supreme Court’s decision in

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

     Based on Secreti and due to Appellant’s express invocation of §

9545(b)(1)(iii) in this appeal, we vacate the order of the PCRA court, vacate

the judgment of sentence, and remand for a new sentencing hearing under

Batts.

     Order reversed. Case remanded. Jurisdiction relinquished.

     Judge Donohue did not participate in the consideration or decision of

this case.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2016




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