J-S65044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

MICHAEL GIBBS

                         Appellant                   No. 1336 EDA 2015


                 Appeal from the PCRA Order April 15, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0709961-1993


BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.

JUDGMENT ORDER BY JENKINS, J.:                       FILED MARCH 02, 2016

      Pursuant to our Supreme Court’s recent orders in Commonwealth v.

Jones, 947 MAL 2015 (Pa., 2/12/16), and related cases, and this Court’s

recent decision in Commonwealth v. Secreti, 578 WDA 2015 (Pa.Super.,

2/9/16), the PCRA court’s order is reversed, Appellant Michael Gibbs’

judgment of sentence is VACATED, and this case is remanded for further

proceedings.

      We explain our decision briefly.     On January 25, 2016, the United

States Supreme Court held in Montgomery v. Louisiana, ___ U.S. ___,

2016 WL 280758 *12 (filed January 25, 2016, as revised on January 27,

2016), that its decision in Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455

(2012), applies retroactively. Miller held that it is unconstitutional for state

courts to impose an automatic life sentence without possibility of parole
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upon a homicide defendant for a murder committed while the defendant was

a juvenile.

      Shortly after Montgomery’s issuance, this Court entered a published

opinion in Secreti. There, Secreti was sentenced to automatic life

imprisonment without possibility of parole for committing first degree

murder as a juvenile. On June 25, 2012, the United States Supreme Court

issued its decision in Miller.    On August 15, 2012, Secreti filed a timely

PCRA petition seeking relief under Miller. On February 9, 2016, following

Montgomery, this Court held that (1) Miller applied retroactively to

Secreti’s sentence under the PCRA’s retroactivity provision, 42 Pa.C.S. §

9545(b)(1)(iii); (2) Secreti’s sentence was unconstitutional under Miller,

and (3) Secreti was entitled to a new sentencing hearing.      Moreover, on

February 11 and 12, 2016, our Supreme Court granted relief to multiple

PCRA petitioners under Miller and Montgomery and remanded their cases

for further proceedings. See, e.g., Jones, supra.

      Secreti squarely applies to this case. In 1994, Gibbs was convicted of

second degree murder for a murder that he committed as a 17 year old

juvenile.     He was also convicted and given concurrent sentences for other

felonies. On July 16, 2012, Gibbs timely filed a PCRA petition seeking relief

under Miller.      As in Secreti, (1) Miller applies retroactively to Gibbs’

sentence under 42 Pa.C.S. § 9545(b)(1)(iii); (2) Gibbs’ sentence is




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unconstitutional under Miller, and (3) Gibbs is entitled to a new sentencing

hearing.

       The PCRA court’s order denying relief to Gibbs under Miller is

reversed; Gibbs’ judgment of sentence is vacated; the case is remanded to

the court of common pleas for further proceedings consistent with Miller

and Montgomery; jurisdiction is relinquished.1

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/2016




____________________________________________


1
   The court also may impose new sentences for any other counts of
conviction, because the original sentencing scheme may be disrupted by a
new sentence on the first degree murder conviction. See Commonwealth
v. Goldhammer, 507 A.2d 1280 (Pa.1986).




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