J-S56024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

JAMES M. BUTTON

                            Appellant                  No. 1973 MDA 2014


                Appeal from the PCRA Order November 10, 2014
                 In the Court of Common Pleas of Tioga County
                     Criminal Division at No(s): 67 CR 1982


BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                              FILED APRIL 08, 2016

        For the reasons that follow, we quash this appeal. However, appellant

James Button may file a new PCRA petition in the court of common pleas

within sixty days of this order, in which he seeks relief under Miller v.

Alabama, __ U.S. __, 132 S.Ct. 2455 (2012).

        We explain our decision briefly.       On January 25, 2016, the United

States Supreme Court 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, which was issued on June 25, 2012,


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S56024-15


held that it is unconstitutional for state courts to impose an automatic life

sentence without possibility of parole upon a homicide defendant for a

murder committed while the defendant was a juvenile.

     Shortly after Montgomery’s issuance, this Court entered a published

opinion in Commonwealth v. Secreti, -- A.3d --, 2016 WL 513341

(Pa.Super., 2/9/16).     There, Secreti was sentenced to automatic life

imprisonment without possibility of parole for committing first degree

murder as a juvenile.    On August 15, 2012, Secreti filed a timely PCRA

petition seeking relief under Miller.     On February 9, 2016, following

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

Secreti’s sentence under the PCRA’s retroactivity provision, 42 Pa.C.S. §

9545(b)(1)(iii); (2) Secreti’s sentence was unconstitutional under Miller,

and (3) Secreti was entitled to a new sentencing hearing.

     The present case, however, is distinguishable from Secreti. In 1982,

Button was convicted of two counts of first degree murder and sentenced to

life imprisonment without the possibility of parole.   Subsequently, Button

filed three unsuccessful PCRA petitions. On December 11, 2011, he filed the

third of these petitions, which the PCRA court dismissed as untimely on

February 28, 2012.     He filed a timely appeal, and this Court affirmed on

February 4, 2013 at 662 MDA 2012.

     On July 19, 2012, while Button’s appeal at 662 MDA 2012 was pending

in this Court, he filed a fourth PCRA petition in the court of common pleas


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seeking relief under Miller.   On August 6, 2012, he moved for leave to

supplement this fourth petition.    On October 6, 2014, the PCRA court

dismissed this petition. On October 14, 2014, Button filed a timely appeal at

1973 MDA 2014.

      At the time of his fourth PCRA petition, the subject of this appeal,

Button’s appeal from the denial of his third PCRA petition was pending in this

Court at 662 MDA 2012. The appeal at 662 MDA 2012 remained undecided

until February 4, 2013.    As a result, the court of common pleas lacked

jurisdiction over Button’s fourth PCRA petition, which in turn deprives us of

jurisdiction over Button’s present appeal.   See Commonwealth v. Lark,

746 A.2d 585, 588 (Pa.2000) (when defendant's appeal from decision on

PCRA petition is pending before appellate court, subsequent PCRA petition

cannot be filed until resolution of review of pending PCRA petition by highest

state court in which review is sought, or upon expiration of time for seeking

such review).

      Thus, we quash the present appeal. We note, however, that under 42

Pa.C.S. § 9545(b)(2), Button has sixty days from the date of this order to

file a new PCRA petition in the court of common pleas seeking relief under

Miller.   Section 9545(b)(2) provides that “[a]ny petition invoking an

exception provided in paragraph (1) [(regarding the exceptions to the PCRA

timing requirements)] shall be filed within 60 days of the date the claim

could have been presented.”     Because Button cannot properly file a new


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PCRA petition until this Court relinquishes jurisdiction of his present petition,

section 9545(b)(2) provides him with sixty days from this date in which to

file his new petition.

        Appeal quashed.   Petition to remand to Tioga County dismissed as

moot.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/8/2016




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