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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

IVORY KING,

                        Appellant                No. 3323 EDA 2014


            Appeal from the PCRA Order dated November 7, 2014
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0003727-1998

COMMONWEALTH OF PENNSYLVANIA,                IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellee

                   v.

JOHN LEKKA,

                        Appellant                No. 3333 EDA 2014


            Appeal from the PCRA Order dated November 7, 2014
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0001295-1978

BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED MARCH 23, 2016

      Appellant, Ivory King (King), appeals 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, John

Lekka (Lekka), appeals from the order denying, as untimely, his PCRA

petition.   Both King and Lekka present the same issue for our review:
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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)

(“retroactively exception”). In both cases, 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     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 orders denying Appellants’ PCRA

petitions, vacate their life-without-parole sentences, and remand for further

proceedings.

      We begin by briefly summarizing the factual and procedural histories

of the cases before us. On November 15, 1979, Lekka was sentenced to life

imprisonment without the possibility of parole, following his conviction for

first-degree murder and conspiracy.         Lekka’s conviction arose from his

participation in the killing of seventeen-year-old Diane Goeke, the girlfriend

of Lekka’s co-defendant, Robert Buli.       Following the discovery of Goeke’s

body in a wooded area of Bucks County, Lekka and Buli admitted to killing

Goeke. The murder occurred in 1978, when Lekka was seventeen years old.

      Lekka filed a direct appeal on December 14, 1979, but withdrew it four

days later. He filed his first PCRA petition on July 8, 2010. The PCRA court

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dismissed that petition on October 27, 2010; that decision was affirmed by

this Court on August 24, 2011, and Lekka’s petition for allowance of appeal

to our Supreme was denied on December 23, 2011.         Commonwealth v.

Lekka, 32 A.3d 841 (Pa. Super. 2011) (unpublished memorandum), appeal

denied, 34 A.3d 82 (Pa. 2011).

     The matter before us concerns Lekka’s second PCRA petition (Lekka’s

Petition), filed on August 13, 2012.   Therein, Lekka asserted that he was

entitled to a new sentencing hearing based on Miller, arguing that Miller

satisfied the PCRA’s retroactivity exception, thus allowing consideration of

his otherwise untimely petition.   On December 10, 2012, the PCRA court

issued an order deferring its ruling on Lekka’s Petition pending the

Pennsylvania Supreme Court’s decision in Cunningham.          On January 1,

2014, after Cunningham was decided, the PCRA court issued a second

order staying its decision on Lekka’s Petition pending the United States

Supreme Court’s review of Cunningham’s petition for a writ of certiorari.

Cunningham’s petition for a writ of certiorari was denied on June 9, 2014.

Cunningham v. Pennsylvania, 134 S.Ct. 2724 (2014).          The PCRA court

issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Lekka’s Petition on

October 3, 2014.     Lekka filed a timely response, but the PCRA court

ultimately dismissed Lekka’s Petition by order dated November 7, 2014.

Lekka filed a timely notice of appeal with this Court on November 18, 2014.

     Lekka had preemptively filed a Pa.R.A.P. 1925(b) statement on July

25, 2014, which the PCRA court addressed in its Rule 1925(a) opinion, filed

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on April 13, 2015.      The timing of Lekka’s Rule 1925(b) statement is

immaterial, however, as the PCRA court never issued an order demanding a

Rule 1925(b) statement.

      On October 28, 1998, King was sentenced to four consecutive terms of

life imprisonment without the possibility of parole, following his conviction on

four counts of first-degree murder and related offenses.      King’s conviction

stemmed from a mass murder that occurred at a house party in Bristol

Borough earlier that same year, when King was seventeen years old.           At

trial, Appellant did not contest that he had killed the four victims; instead,

he only contested his degree of guilt.

      It does not appear that King filed a direct appeal. Instead, he filed a

PCRA petition, his first, on September 17, 1999. King withdrew that petition

on November 23, 1999. King filed a second PCRA petition in 2005, which

was denied by the PCRA court. This Court dismissed King’s appeal from that

decision on January 12, 2006, when he failed to file a brief. King filed his

third PCRA petition on September 11, 2007, which was denied by the PCRA

court on March 3, 2008. He filed his fourth PCRA petition on June 4, 2010,

which was denied by the PCRA court on August 18, 2010.            King did not

appeal from the orders denying his third and fourth PCRA petitions.

      The matter before us concerns King’s fifth PCRA petition (King’s

Petition), filed on July 5, 2012, wherein, by amendment of appointed counsel




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on October 21, 2012, King requested a new sentencing hearing, invoking the

Miller decision to satisfy the PCRA’s retroactivity exception. 1 On December

10, 2012, the PCRA court issued an order deferring its ruling on King’s

Petition    pending      the    Pennsylvania     Supreme   Court’s   decision   in

Cunningham.        On January 1, 2014, after Cunningham was decided, the

PCRA court issued a second order staying its decision on King’s Petition

pending the United States Supreme Court’s review of Cunningham’s petition

for a writ of certiorari.      Cunningham’s petition for a writ of certiorari was

denied on June 9, 2014.          The PCRA court issued a Rule 907 notice of its

intent to dismiss King’s Petition on October 3, 2014.         King filed a timely

response on October 20, 2014.             The PCRA court subsequently dismissed

King’s Petition by order dated November 7, 2014. King filed a timely notice

of appeal on November 18, 2014.

       King also had preemptively filed a Rule 1925(b) statement on July 25,

2014, which the PCRA court addressed in its Rule 1925(a) opinion, dated

May 28, 2015. As is true with respect to Lekka, the timing of King’s Rule

1925(b) statement is immaterial, as the PCRA court never issued an order in

his case demanding a Rule 1925(b) statement.

       Appellants, King and Lekka, are both represented by Stuart Wilder,

Esq. They raise identical issues and seek the same relief in their respective

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1
  Other matters were raised in King’s Petition; however, King is only raising
his Miller issue in this appeal.



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appeals, which stem from similar procedural circumstances. Accordingly, for

ease of disposition, we consolidate their appeals in this memorandum.

Appellants present the following question for our review:

       Did the lower court err when it denied … Appellant’s PCRA
       petition, as he currently serves a sentence the Supreme Court of
       the United States deemed unconstitutionally cruel and unusual,
       and whose prohibition must be applied retroactively?

King’s Brief, at 4; Lekka’s Brief, at 4.2

       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.

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).

____________________________________________


2
  Additionally, Appellants each petitioned this Court to stay their appeals
pending the outcome in Montgomery. Those petitions were denied, but
without prejudice to each Appellant’s right to raise that matter in their
briefs. Appellants both reasserted their requests to stay disposition pending
Montgomery in their respective briefs, and we held their cases until
Montgomery was decided.



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

Appellants’ claims 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
               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.




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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 conceded that Appellants’ PCRA petitions are untimely.

They must, therefore, avail themselves of one the timeliness exceptions for

this Court to have jurisdiction to review the merits of their claims. As noted

above, Appellants argue the applicability of the retroactivity exception set

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

because it determined that it “must follow the holding in … Cunningham

that Miller does not apply retroactively.” Lekka’s PCRA Opinion, 4/13/15, at

12; King’s PCRA Opinion, 5/28/15, at 12 (quoting Lekka’s PCRA Opinion,

4/13/15, at 12).

      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

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 Eight

Amendment also prohibits mandatory, life-without-parole sentences for

juveniles.




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      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 life imprisonment without

the possibility of parole (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 amended 18 Pa.C.S. § 1102 to add 18 Pa.C.S. § 1102.1, which

provides 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

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

Supreme Court considered a timely PCRA petition wherein the petitioner

claimed that his 2002 mandatory LWOP sentence, imposed for a second-




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degree murder he committed as a juvenile, had violated the Eighth

Amendment’s prohibition of cruel and unusual punishments.3                    Applying

Teague v. Lane, 489 U.S. 288 (1989) (plurality),4 the Cunningham Court

flatly   rejected   Cunningham’s       argument    that   Miller   is   a   substantive

constitutional rule 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
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3
 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.
4
  As the Cunningham Court explained, Teague and its progeny expressed
a general rule that new constitutional rules are not subject to 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).




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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.5

       In Montgomery, the United States Supreme Court finally addressed

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

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5
  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).

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



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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
     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).



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      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

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

9545(b)(1). 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


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

Montgomery, it is irrefutable that Miller is “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).6 Consequently, the PCRA court’s legal basis for denying King’s and

Lekka’s PCRA petitions is no longer valid.         Thus, we hereby reverse the

orders denying King’s and Lekka’s PCRA petitions. Additionally, we vacate

their mandatory LWOP sentences, as they are patently illegal under Miller,

and remand for further proceedings consistent with this decision, Miller, and

Montgomery.

       Orders reversed.          Mandatory LWOP sentences vacated.       Cases

remanded for further proceedings. Jurisdiction relinquished.

       Judge Lazarus files a concurring and dissenting memorandum.

       Judge Ott concurs in the result of this memorandum.




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6
  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.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2016




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