J-S03025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

KEVIN VAN CLIFF

                          Appellant                    No. 1084 EDA 2015


                Appeal from the PCRA Order March 25, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0207921-1973


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                                 FILED MARCH 09, 2016

     Kevin Van Cliff appeals from the order entered on March 25, 2015, in

the Court of Common Pleas of Philadelphia County, that dismissed as

untimely his serial petition for relief pursuant to the Pennsylvania Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.         In his counseled

brief, he presents two questions for review: 1) “Should this Court stay these

proceedings pending the United States Supreme Court’s decision in

Montgomery v. Louisiana?”, and 2) “Did the PCRA court err in dismissing

[Van Cliff’s] PCRA petition in which he alleged that under the authority of

Miller v. Alabama, 132 S. Ct. 2455 (2012) and the Pennsylvania

Constitution   his    sentence        of   mandatory   life   imprisonment   is

unconstitutional…”. Van Cliff’s Brief at 3.     Based upon the following, we

reverse, vacate the judgment of sentence, and remand for resentencing.
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       The Pennsylvania Supreme Court set forth the background of this

case, as follows:

       Appellant Kevin Van Cliff was tried before a jury and convicted of
       murder of the first degree, aggravated robbery, and conspiracy
       in connection with the slaying of Howard Anderson. Post-verdict
       motions were denied and appellant was sentenced to life
       imprisonment on the murder bill and a concurrent term of five to
       fifteen years imprisonment on the aggravated robbery charge.
       Sentence was suspended on the conspiracy conviction. …

                                           ****

       [O]n December 6, 1972, [Van Cliff] and four other youths (Terry
       Purdie, Fred Young, Al Gilmore, and Paul Hayes) were in a
       luncheonette at 28th and Wharton Streets in Philadelphia when
       Howard Anderson entered. Two of the boys decided to “get”
       Anderson and told the others of their plan. When Anderson left
       the luncheonette all five youths followed him, passed him, and
       waited around the corner of 28th and Titan Streets. As Anderson
       turned the corner, Young told him to give up his money. Purdie
       hit Anderson, after which [Van Cliff] and Young kicked him.
       Gilmore then fatally stabbed Anderson.

Commonwealth v. Van Cliff, 397 A.2d 1173, 1175 (Pa. 1979), cert.

denied, 441 U.S. 964 (1979).              Van Cliff was 15 years old when he

participated in the murder.1

       The PCRA court summarized the ensuing procedural history:

       September 18, 1974[:] Found guilty after a jury trial

       March 3, 1975:              Sentenced to life imprisonment for 1st
                                   degree murder

____________________________________________


1
 The certified record reflects that Van Cliff’s date of birth is March 29, 1957,
and the murder occurred on December 6, 1972.



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      January 24, 1979:        Judgment of Sentence                affirmed    by
                               Supreme Court

      July 23, 1979:           Pro se PCHA petition filed – Counsel
                               appointed

      January 12, 1984 :       First petition dismissed

      June 21, 1985:           Dismissal affirmed by Superior Court

      October 1986-            Multiple post-conviction petitions
      March 1997[:]            unsuccessfully pursued

      June 5, 2010:            Instant PCRA Petition filed

      July 2012 through        Amended PCRA Petitions filed
      December 2013:

PCRA Court Order and Opinion, 3/25/2015, at 1.                On March 25, 2015,

following Rule 907 notice, the PCRA court dismissed the instant petition, and

Van Cliff filed this appeal.

      Our standard of review of the denial of a PCRA petition is limited to

examining     whether    the   evidence      of   record    supports     the     court’s

determination     and    whether   its     decision    is   free    of   legal      error.

Commonwealth v. Lane, 81 A.3d 974, 977 (Pa. Super. 2013), appeal

denied, 92 A.3d 811 (Pa. 2014).          This Court gives great deference to the

findings of the PCRA court if the record contains any support for those

findings.   Commonwealth v. Boyd, 923 A.2d 513 (Pa. Super. 2007),

appeal denied, 932 A.2d 74 (Pa. 2007).                We give no such deference,

however, to the court’s legal conclusions.         Commonwealth v. Ford, 44

A.3d 1190, 1194 (Pa. Super. 2012).


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J-S03025-16


       On January 25, 2016, while this appeal was pending, the United States

Supreme Court held in Montgomery v. Louisiana, 193 L. Ed. 2d 599, 2016

WL 280758 (U.S. 2016), that its decision in Miller v. Alabama, 567 U.S.

___, 132 S.Ct. 2455, 183 L. Ed. 2d 407 (2012) (filed June 25, 2012), applies

retroactively.    Miller 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 the Montgomery decision, on February 9, 2016, this

Court issued Commonwealth v. Secreti, ___ A.3d ___ [2016 PA Super 28]

(Pa. Super. 2016). There, Secreti was sentenced on January 5, 1996, to

automatic life imprisonment without possibility of parole for committing first

degree murder as a juvenile. On August 15, 2012, within 60 days of the

Miller decision, Secreti filed a PCRA petition, invoking the PCRA’s timeliness

exception for a new retroactive constitutional right, and seeking relief under

Miller. See 42 Pa.C.S. § 9545(b)(1)(iii), (b)(2).2 This Court held that (1)

____________________________________________


2
  Section 9545(b)(1)(iii) provides a timeliness exception where “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.” 42 Pa.C.S. § 9545(b)(1)(iii).

      Section 9545(b)(2) provides: “Any petition invoking an exception
provided in paragraph (1) shall be filed within 60 days of the date the claim
could have been presented.” 42 Pa.C.S. § 9545(b)(2).
(Footnote Continued Next Page)


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J-S03025-16


Miller applied retroactively to Secreti’s sentence, and Secreti satisfied the

requirements     of     Section    9545(b)(1)(iii),   (2)   Secreti’s   sentence   was

unconstitutional under Miller, and (3) Secreti was entitled to a new

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

286, 296 (Pa. 2013).3

      Secreti squarely applies to this case.                In 1975, Van Cliff was

sentenced to life imprisonment without parole for first degree murder for a

murder he committed as a 15 year old juvenile. He was also sentenced to a

concurrent term of five to 15 years’ incarceration for aggravated robbery; on

his conspiracy conviction sentence was suspended.             Van Cliff timely raised

his Miller claim in an amended PCRA petition, filed July 16, 2012, and his

appeal from the denial of PCRA relief was pending before this Court when

the United States Supreme Court issued Montgomery. Guided by Secreti,

we conclude (1) Miller applies retroactively to Van Cliff’s sentence, and Van

Cliff has satisfied the PCRA’s exception, 42 Pa.C.S. § 9545(b)(1)(iii), (2) Van

Cliff’s sentence is unconstitutional under Miller, and (3) Van Cliff is entitled

to a new sentencing hearing.


                       _______________________
(Footnote Continued)


3
   In Commonwealth v. Batts, 66 A.3d 286, 296 (Pa. 2013), the
Pennsylvania Supreme Court stated, “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.”



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J-S03025-16


      Accordingly, we reverse the PCRA court’s order denying relief to Van

Cliff, we vacate Van Cliff’s judgment of sentence, and we remand to the

PCRA court for resentencing in accordance with Batts, supra.

      Order reversed. Judgment of sentence vacated. Case remanded for

resentencing. Jurisdiction relinquished. Van Cliff’s application for remand is

dismissed as moot.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2016




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