J-S12036-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 Appellee                :
                                         :
                    v.                   :
                                         :
TROY W. DAVID,                           :
                                         :
                 Appellant               :     No. 1893 EDA 2015

                 Appeal from the PCRA Order May 13, 2015
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-1217401-1984

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

JUDGMENT ORDER BY STRASSBURGER, J.: FILED MARCH 22, 2016

     Troy W. David (Appellant) pro se appeals in forma pauperis (IFP) from

the May 13, 2015 order that denied his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.       We reverse the

PCRA order, vacate Appellant’s judgment of sentence, and remand for

resentencing.

     In 1986, Appellant was sentenced to life imprisonment without

possibility of parole following his conviction for second-degree murder based

upon events that took place when Appellant was 17 years old.       The order

from which Appellant filed the instant appeal denied his request for PCRA

relief based upon the United States Supreme Court’s decision in Miller v.

Alabama, 132 S.Ct. 2455 (2012), in which the Court held unconstitutional

mandatory sentences of life imprisonment without possibility of parole


*Retired Senior Judge assigned to the Superior Court.
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imposed upon individuals who were juveniles at the time they committed

homicides.    The PCRA court determined that Appellant did not properly

invoke the newly-recognized-constitutional-right exception to the PCRA’s

one-year timeliness requirement provided in 42 Pa.C.S. §9545(b)(1)(iii)

because our Supreme Court held in Commonwealth v. Cunningham, 81

A.3d 1, 11 (Pa. 2013), that Miller does not apply retroactively.

      While this appeal was pending, the U.S. Supreme Court decided in

Montgomery v. Louisiana, 136 S.Ct. 718 (2016), that Miller announced a

new substantive rule of law which applies retroactively.     Thereafter, this

Court held that Montgomery renders “retroactivity under Miller effective as

of the date of the Miller decision.” Commonwealth v. Secreti, 2016 Pa.

Super. 28, 2016 WL 513341 at *5 (Pa. Super. filed February 9, 2016).

      Under Secreti, Appellant’s PCRA petition meets the           timeliness

exception provided by 42 Pa.C.S. § 9545(b)(1)(iii).            Under Miller,

Montgomery, and Secreti, Appellant is entitled to PCRA relief in the form

of resentencing following judicial consideration of appropriate age-related

factors. See Commonwealth v. Batts, 66 A.3d 286, 297 (Pa. 2013).1



1
      [A]t a minimum [the sentencing court] should consider a
      juvenile’s age at the time of the offense, his diminished
      culpability and capacity for change, the circumstances of the
      crime, the extent of his participation in the crime, his family,
      home and neighborhood environment, his emotional maturity
      and development, the extent that familial and/or peer pressure
      may have affected him, his past exposure to violence, his drug


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      Appellant is entitled to the assistance of counsel for his resentencing

proceedings. Com. ex rel. Wright v. Cavell, 220 A.2d 611, 614 (Pa. 1966)

(noting that sentencing is a critical stage of a criminal proceeding at which a

criminal defendant has a constitutional right to counsel). Because Appellant

has established his indigency in order to proceed IFP, the trial court upon

remand shall appoint counsel to represent Appellant.

      Order reversed. Judgment of sentence vacated. Case remanded for

resentencing. Jurisdiction relinquished.2

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 3/22/2016




      and alcohol history, his ability to deal with the police, his
      capacity to assist his attorney, his mental health history, and his
      potential for rehabilitation.

Batts, 66 A.3d at 297 (quoting Commonwealth v. Knox, 50 A.3d 732, 745
(Pa. Super. 2012)).
2
 Given our disposition, two Appellant’s Applications for Leave to File Post-
Submission Communications are denied as moot.


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