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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                   Appellee              :
                                         :
             v.                          :
                                         :
MELISA ANN MCMANUS                       :
                                         :
                   Appellant             :           No. 1415 MDA 2014

             Appeal from the PCRA Order entered on July 22, 2014
              in the Court of Common Pleas of Lancaster County,
                Criminal Division, No. CP-36-CR-0002039-1993

BEFORE: PANELLA, OTT and MUSMANNO, JJ.

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

        Melisa Ann McManus (“McManus”) appeals from the Order dismissing

her Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We reverse the Order, vacate

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

        In 1994, McManus was convicted of murder of the first degree and

criminal conspiracy after the death of her newborn son.1 McManus was 17

years old at the time of the crime. The trial court sentenced McManus to life

in prison without the possibility of parole on the murder conviction, and a

concurrent 5 to 10 years in prison on the conspiracy conviction. This Court

affirmed the judgment of sentence, and the Supreme Court denied

allowance of appeal.    See Commonwealth v. McManus, 664 A.2d 1057



1
    See 18 Pa.C.S.A. §§ 2502(a), 903.
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(Pa. Super. 1995) (unpublished memorandum), appeal denied, 670 A.2d

141 (Pa. 1995). McManus did not file a Petition for Writ of certiorari with the

United States Supreme Court.

      McManus filed her first PCRA Petition, pro se, in 2010. The PCRA court

appointed McManus counsel, who filed an Amended PCRA Petition. In this

Petition, McManus argued that her sentence was unconstitutional under

Graham v. Florida, 560 U.S. 48 (2010). The PCRA court issued a Notice of

Intent to Dismiss, and dismissed the Petition without a hearing. McManus

filed a timely Notice of Appeal.

      In 2012, while the appeal was pending, McManus filed a PCRA Petition,

following the United States Supreme Court’s decision in Miller v. Alabama,

132 S. Ct. 2455 (2012).2       The PCRA court denied the second Petition

because McManus’s first Petition was still pending before this Court.

McManus filed an Application for Remand of the 2010 PCRA Petition, which

this Court denied.   Instead, this Court ordered the case listed for en banc

review to determine the retroactivity of Miller. The Commonwealth filed an

Application for Stay of the appeal from the dismissal of the 2010 PCRA


2
   In Miller, the Supreme Court held that sentencing schemes which mandate
life in prison without parole for defendants who committed their crimes while
under the age of eighteen violates the Eighth Amendment’s prohibition on
“cruel and unusual punishments.” Miller, 132 S. Ct. at 2460. The Supreme
Court reasoned that, in light of a juvenile’s diminished culpability and
heightened capacity for change, mandatory juvenile sentencing schemes
pose too great a risk of disproportionate punishment, in contravention of the
Eighth Amendment. Id. at 2469.



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Petition    pending   the    Supreme   Court   of   Pennsylvania’s   decision    in

Commonwealth          v.    Cunningham,   81   A.3d   1   (Pa.   2013),   on    the

retroactivity of Miller. This Court granted the Application for Stay. In 2013,

the Supreme Court of Pennsylvania held that Miller should not be applied

retroactively to individuals whose judgments of sentence were final prior to

that decision.    Cunningham, 81 A.3d at 11.            As a result, this Court

remanded the 2010 PCRA Petition to the PCRA court and relinquished

jurisdiction.

      In 2014, the Commonwealth filed an Answer to McManus’s PCRA

Petition, and the PCRA court ruled to stay the remanded PCRA action

pending a ruling by the United States Supreme Court on whether it would

grant certiorari in Cunningham.         On June 9, 2014, the United States

Supreme Court denied certiorari. See Cunningham v. Pennsylvania, 134

S. Ct. 2724 (2014).         The PCRA court subsequently dismissed the PCRA

Petition.

      This panel affirmed the PCRA court’s dismissal based on the

untimeliness of the Petition,3 and McManus’s failure to properly invoke a




3
  Under the PCRA, any PCRA petition “shall be filed within one year of the
date the judgment becomes final[.]”        42 Pa.C.S.A. § 9545(b)(1).    A
judgment of sentence becomes final “at the conclusion of direct review,
including discretionary review in the Supreme Court of Pennsylvania, or at
the expiration of time for seeking the review.” Id. § 9545(b)(3). Here,
McManus’s Petition was facially untimely under the PCRA.



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timeliness exception under the PCRA.4 See Commonwealth v. McManus,

120 A.3d 388 (Pa. Super. 2015) (unpublished memorandum at 4-5).           Our

panel was constrained to conclude that the Miller decision did not implicate

the newly recognized constitutional right exception codified at 42 Pa.C.S.A.

§ 9545(b)(1)(iii), based upon the Cunningham decision.        McManus, 120

A.3d 388 (unpublished memorandum at 5).

      McManus filed a Petition for Allowance of Appeal.     On February 17,

2016, our Supreme Court granted the Petition, vacated this Court’s decision,

and remanded for further proceedings based upon the United States

Supreme Court’s decision in Montgomery v. Louisiana, 136 S. Ct. 718

(2016).   See Commonwealth v. McManus, 2016 WL 634042, *1 (Pa.

2016).

      In Montgomery, the United States Supreme Court held that its

decision in Miller, supra, applies retroactively. Montgomery, 136 S. Ct. at

736. Following the Montgomery decision, this Court issued its Opinion in

Commonwealth v. Secreti, 2016 PA Super 28 (Pa. Super. 2016), which

held that where a PCRA petitioner properly raised a Miller claim within sixty

days of that decision, Miller applies retroactively; the petitioner’s sentence

is unconstitutional under Miller; and the petitioner is entitled to a new


4
 Pennsylvania courts may consider an untimely petition if the appellant can
explicitly plead and prove one of three exceptions set forth under 42
Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any PCRA petition invoking one of these
exceptions “shall be filed within 60 days of the date the claim could have
been presented.” Id. § 9545(b)(2).


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sentencing hearing in accordance with Commonwealth v. Batts, 66 A.3d

286, 296 (Pa. 2013).5 Secreti, 2016 PA Super 28, **4-6.

      Here, McManus’s first PCRA Petition was pending at the time of the

Miller decision. See Commonwealth v. Porter, 35 A.3d 4, 14 (Pa. 2012)

(stating that courts “cannot entertain a new PCRA petition when a prior

petition is still under review[.]”).   Subsequently, the PCRA court and this

Court stayed a decision on McManus’s 2010 PCRA Petition until the final

resolution of Cunningham.       Thus, in light of this procedural history, we

conclude that McManus properly and timely invoked Miller under section

9545(b)(1)(iii).

5
  “Miller requires only that there be judicial consideration of the appropriate
age-related factors set forth in that decision prior to the imposition of a
sentence of life imprisonment without the possibility of parole on a juvenile.”
Batts, 66 A.3d at 296.

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

Id. at 297. “[T]he imposition of a minimum sentence taking such factors
into account is the most appropriate remedy for the federal constitutional
violation that occurred when a life-without-parole sentence was mandatorily
applied to [an a]ppellant.” Id.; see also Montgomery, 136 S. Ct. at 736
(stating that “[a]llowing those offenders to be considered for parole
ensures that juveniles whose crimes reflected only transient immaturity—
and who have since matured—will not be forced to serve a disproportionate
sentence in violation of the Eighth Amendment.”) (emphasis added).


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      Based upon Montgomery and Secreti, we conclude that (1) McManus

satisfied the timeliness exception at 42 Pa.C.S.A. § 9545(b)(1)(iii), and that

Miller applies retroactively to her sentence; (2) McManus’s sentence is

unconstitutional under Miller; and (3) McManus is entitled to a new

sentencing hearing.       Accordingly, we reverse the PCRA court’s Order

dismissing McManus’s Petition, vacate McManus’s judgment of sentence, and

remand for resentencing in accordance with Batts, supra.

      Order reversed. Judgment of sentence vacated. Case remanded for

resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/8/2016




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