J-S12009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WILLIAM R. SHEPPARD

                            Appellant                   No. 1545 EDA 2015


                   Appeal from the PCRA Order April 28, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1111131-1976


BEFORE: MUNDY, J., OLSON, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.:                                FILED March 21, 2016

        Appellant, William R. Sheppard, appeals pro se from the April 28, 2015

order, dismissing as untimely, his petition for relief filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.           After careful

review, we reverse the PCRA court’s order, vacate the judgment of sentence,

and remand for resentencing.

        On October 6, 1977, the trial court imposed a mandatory, aggregate

sentence of life imprisonment without the possibility of parole, after

Appellant was found guilty of one count each of first-degree murder and

possession of an instrument of a crime.1 The parties agree that Appellant

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*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2502(a) and 907(a), respectively.
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was under 18 years of age at the time of the offense. Appellant’s Brief at 2;

Commonwealth’s Brief at 7.           This Court affirmed Appellant’s judgment of

sentence on September 7, 1979, and our Supreme Court denied Appellant’s

petition for allowance of appeal on February 4, 1980. Commonwealth v.

Shepherd, 409 A.2d 894 (Pa. Super. 1979).2 As Appellant did not seek a

writ of certiorari from the United States Supreme Court, his judgment of

sentence became final in 1980 when the period for filing a certiorari petition

expired. See 42 Pa.C.S.A. § 9545(b)(3) (stating, “a judgment becomes final

at the conclusion of direct review, including discretionary review in the

Supreme Court of the United States and the Supreme Court of Pennsylvania,

or at the expiration of time for seeking the review[]”).          Appellant filed

petitions for post-conviction relief in 1980, 1986, 1992, 1997, and 2006,

none of which garnered him any relief. Appellant filed the instant petition on

July 2, 2010; as a result, it was facially untimely.       See id. § 9545(b)(1)

(stating, “[a]ny petition under this subchapter, including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final[]”).      Relevant to this appeal, Appellant amended his PCRA

petition on July 26, 2012 to include a claim based on the United States

Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455 (2012).


____________________________________________
2
  We note that Appellant’s last name is spelled differently in our opinion from
his direct appeal. We further observe that a table citation is not available for
our Supreme Court’s denial of his allocatur petition on direct appeal.



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        Instantly, Appellant argues on appeal that his petition is timely under

the new constitutional right exception at Section 9545(b)(1)(iii) because

Miller applies retroactively to cases on collateral review. Appellant’s Brief at

4.     In Miller, the Supreme Court held the Cruel and Unusual Punishment

Clause of the Federal Constitution forbids the imposition of a mandatory

sentence of life imprisonment without the possibility of parole upon a minor,

even for a homicide.        Miller, supra at 2460.   On January 25, 2016, the

Supreme Court decided Montgomery v. Louisiana, 136 S. Ct. 718 (2016),

which concluded that Miller is to be applied retroactively to cases on state

collateral review.3 Montgomery, supra at 736.

        Given that Appellant is correct that Miller is retroactive to cases on

collateral review, we now address whether we may afford him a remedy at

this juncture.    The Commonwealth argues that Appellant may not seek a

remand even if Miller were retroactive based on the text of Section

9545(b)(1)(iii) and our Supreme Court’s decision in Commonwealth v.

Abdul-Salaam, 812 A.2d 497 (Pa. 2002).           Commonwealth’s Brief at 7-8

n.2.

        Section 9545(b)(1)(iii) permits an exception to the PCRA time-bar

when the petition in question alleges and proves “the right asserted is a

constitutional right that was recognized by the Supreme Court of the United
____________________________________________
3
  Appellant’s “Motion for Leave to Submit Supplemental Notice of Authority”
is hereby granted.



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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.A. § 9545(b)(1)(iii) (emphasis added).         In Abdul-Salaam, our

Supreme Court held that the General Assembly’s use of the past tense in the

phrase “has been held” in Section 9545(b)(1)(iii) means that the applicable

“retroactivity determination must exist at the time that the petition is filed.”

Abdul-Salaam, supra at 502.        As noted above, Appellant’s petition was

initially filed on July 2, 2010 and amended to include Miller on July 26,

2012, but Montgomery was not decided until January 25, 2016.

      However, on February 9, 2016, this Court examined Abdul-Salaam

and held that “[t]he 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).” Commonwealth v. Secreti, --- A.3d ---, 2016 WL

513341, at *6 (Pa. Super. 2016).         The Court explained that this was

necessary to “harmonize the PCRA requirements with Montgomery, Miller,

and Abdul-Salaam and simultaneously achieve the justice this law was

designed to promote.”      Id. at *5.    Therefore, consistent with Secreti,

Appellant’s petition was timely and Miller does apply to his case.

Furthermore, as noted above, Appellant was given a mandatory sentence of

life imprisonment without the possibility of parole, and the Commonwealth

acknowledges that Appellant was a minor at the time of the offense.

Appellant’s Brief at 2; Commonwealth’s Brief at 7. As a result, Appellant is


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entitled   to   resentencing,     consistent     with   Montgomery,   Miller,   and

Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013).4

       Based on the foregoing, we conclude Appellant’s PCRA petition was

timely filed and he is entitled to resentencing, in light of               Miller,

Montgomery and Secreti.5            Accordingly, the PCRA court’s April 28, 2015

order is reversed, the October 6, 1977 judgment of sentence is vacated, and

the case is remanded for resentencing, consistent with this memorandum.

       Order reversed. Judgment of sentence vacated. Case remanded for

resentencing.     Motion for leave to submit supplemental authority granted.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/21/2016


____________________________________________
4
  We note that the General Assembly passed Section 1102.1 in October 2012
to address Miller, which provides new mandatory minimum sentences for
juveniles convicted of first-degree murder. However, Section 1102.1’s text
limits its application to those “convicted after June 24, 2012[.]”     18
Pa.C.S.A. § 1102.1(a), (c).
5
  On remand, the PCRA court shall appoint counsel for Appellant, as it is
axiomatic that sentencing is a critical stage of a criminal proceeding,
requiring counsel. See generally Commonwealth v. Phillips, 93 A.3d
847, 854 (Pa. Super. 2014) (citation omitted).



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