J-S35028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

AARON CLAUDE PHILLIPS,

                            Appellant              No. 3005 EDA 2014


              Appeal from the PCRA Order of September 26, 2014
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0025720-1986


BEFORE: MUNDY, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                            FILED APRIL 11, 2016

       Appellant, Aaron Claude Phillips, appeals from the order entered on

September 26, 2014, dismissing his fifth petition filed under the Post-

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.1    We vacate the

order entered by the PCRA court and remand for further proceedings

consistent with this memorandum.

       As we previously explained:

         On January 4, 1988, following a bench trial, Appellant, who
         was a juvenile at the time of his crimes, was convicted of
         second-degree murder, burglary, and related offenses. On
         September 16, 1988, the [trial] court sentenced Appellant
         to [the mandatory term of] life in prison without the
____________________________________________


1
  The case returns to this Court following remand from the Pennsylvania
Supreme Court. Commonwealth v. Phillips, ___ A.3d ___, 2016 WL
594015 (Pa. 2016).



*Retired Senior Judge assigned to the Superior Court.
J-S35028-15


            possibility of parole for his second-degree murder
            conviction, and Appellant filed a direct appeal. We affirmed
            his judgment of sentence, and Appellant filed a timely
            petition for allowance of appeal, which the Pennsylvania
            Supreme Court denied on March 28, 1991.

Commonwealth v. Phillips, 32 A.3d 835 (Pa. Super. 2011) (unpublished

memorandum) at 1.

        From 1995 until 2010, Appellant filed four petitions for post-conviction

collateral relief under the PCRA, and all requests for relief were denied by

the courts.

        On August 20, 2012, Appellant, acting pro se, filed the current PCRA

petition.     The petition constitutes Appellant’s fifth attempt to secure post-

conviction collateral relief under the PCRA.      Within the petition, Appellant

claimed that, in Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012),

the United States Supreme Court created a new constitutional right that

entitled him to relief.        Appellant’s Fifth PCRA Petition, 8/20/12, at 2.

Specifically, Appellant claimed, in Miller, the United States Supreme Court

created the new rule of law that “the Eighth Amendment forbids a

sentencing scheme that mandates life in prison without [] possibility of

parole for juvenile offenders.” Appellant’s Fifth PCRA Petition, 8/20/12, at 4;

quoting Miller, ___ U.S. at ___, 132 S.Ct. at 2469. Since Appellant filed his

PCRA petition within 60 days of the date Miller was decided,2 Appellant

claimed that his PCRA petition was timely under the “newly recognized
____________________________________________


2
    The Supreme Court decided Miller on June 25, 2012.



                                           -2-
J-S35028-15



constitutional right” exception to the PCRA’s one-year time-bar. Appellant’s

Fifth PCRA Petition, 8/20/12, at 4; 42 Pa.C.S.A. § 9545(b)(1)(iii) and (2).

      Appellant later retained counsel and, on December 4, 2013, counsel

filed a self-titled “Amended Petition for Habeas Corpus Relief Under Article 1,

Section 14 of the Pennsylvania Constitution and for Post-Conviction Relief

Under the Post Conviction Relief Act” on Appellant’s behalf. In this amended

petition, Appellant reiterated the claim that he was entitled to relief under

Miller.     Further, Appellant claimed, even if the constitutional right

announced in Miller were not retroactive to cases on collateral review,

Appellant was entitled to relief in the form of a writ of habeas corpus.

      On August 1, 2014, the PCRA court provided Appellant with notice that

it intended to dismiss Appellant’s fifth PCRA petition in 20 days without

holding a hearing, as the petition was untimely. The PCRA court dismissed

Appellant’s petition on September 26, 2014 and Appellant filed a timely

notice of appeal to this Court. Appellant raises three claims on appeal:

          1. Does the failure to apply Miller v. Alabama retroactively
          to a juvenile offender sentenced to life in prison without the
          possibility of parole for a conviction of second-degree
          murder violate Appellant’s rights under the [United States]
          Constitution or the Pennsylvania Constitution?

          2. Does habeas corpus provide Appellant with a mechanism
          for relief?

          3. Did the [PCRA] court err in denying the petition for post-
          conviction collateral relief without granting a hearing?

Appellant’s Brief at 4.



                                      -3-
J-S35028-15


      The   gravamen of Appellant’s complaint on appeal is that his

mandatory sentence of life imprisonment without the possibility of parole

violates his rights under the Eighth Amendment of the United States

Constitution and Article I, Section 13 of the Pennsylvania Constitution

because it was imposed for a homicide he committed as a juvenile.

Appellant asserts that he is entitled to relief under the PCRA because the

United States Supreme Court’s decision in Miller rendered his petition timely

filed under the exception for newly-recognized constitutional rights. See 42

Pa.C.S.A. § 9545(b)(1)(iii).   Accordingly, Appellant argues that the PCRA

court erred in dismissing his petition as untimely.

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported by evidence of record and is free of legal error. Commonwealth

v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will

not be disturbed unless there is no support for the findings in the certified

record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

We apply a de novo standard of review and a plenary scope of review to

challenges involving questions of law. Commonwealth v. Rykard, 55 A.3d

117, 1183-1184 (Pa. super. 2012), appeal denied, 64 A.3d 631 (Pa. 2013).

      The timeliness of a PCRA petition is a jurisdictional prerequisite. See

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2003).              A petition

seeking relief under the PCRA, including a second or subsequent petition,


                                     -4-
J-S35028-15


must be filed within one year of the date the judgment is final unless the

petition alleges, and the petitioner proves, that an exception to the time for

filing the petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is

met.3    See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa.

2000). A PCRA petition invoking one of the statutory exceptions must “be

filed within 60 days of the date the claims could have been presented.” Id.;

42 Pa.C.S.A. § 9545(b)(2).

        Appellant’s judgment of sentence became final in 1991. Appellant filed

the instant petition on August 20, 2012; hence, the petition is patently

untimely unless Appellant pleads and proves an exception to the PCRA’s time

bar.

____________________________________________


3
    The exceptions to the PCRA’s timeliness requirement are:

          (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.

42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii).



                                           -5-
J-S35028-15


      Appellant claims that his petition is timely under the newly-recognized

constitutional rights exception set forth at 42 Pa.C.S.A. § 9545(b)(1)(iii). To

properly invoke this exception, Appellant must show that he filed his petition

within 60 days of the date on which the court filed the new decision.

Commonwealth v. Baldwin, 789 A.2d 728, 731 (Pa. Super. 2001), appeal

denied, 863 A.2d 1141 (Pa. 2004).       Here, Appellant satisfied the 60-day

prerequisite since he filed his petition on August 20, 2012 and the United

States Supreme Court issued its decision in Miller June 25, 2012.

      We turn now to consider whether Appellant has advanced a valid claim

asserting a newly-recognized constitutional right, as that phrase is used in

§ 9545(b)(1)(iii). In Commonwealth v. Abdul-Salaam, 812 A.2d 497 (Pa.

2001), our Supreme Court explained that a petitioner seeking to invoke

§ 9545(b)(1)(iii) must plead and prove two elements: (1) the right asserted

must be a constitutional right that was recognized by the Supreme Court of

the United States or the Supreme Court of Pennsylvania after the expiration

of the time for filing a petition set forth in § 9545, and (2) that Court must

have held that that the right is to apply retroactively. Abdul-Salaam, 812

A.2d at 501.

      Recently, the United States Supreme Court issued its decision in

Montgomery v. Louisiana, 135 S.Ct. 1546 (2016).            Montgomery held

that Miller applies retroactively to cases pending on collateral review

wherein the judgment of sentence has already become final.          In view of


                                     -6-
J-S35028-15


Montgomery, we conclude that Appellant has properly invoked the

newly-recognized constitutional rights exception found in § 9545(b)(1)(iii)

and that Appellant’s petition is timely.4        Accordingly, we vacate the order

dismissing Appellant’s petition, vacate the judgment of sentence, and

remand this matter for re-sentencing.            See Commonwealth v. Secreti,

___ A.3d ___, 2016 WL 513341, *6 (Pa. Super. 2016); see also

Commonwealth v. Batts, 66 A.3d 286, 295-297 (Pa. 2013) (identifying

factors to be considered in sentencing juvenile homicide defendants).

       Order vacated. Case remanded for further proceedings.          Jurisdiction

relinquished.




____________________________________________


4
   Our Supreme Court recently recognized that Montgomery requires
retroactive application of Miller. See Commonwealth v. Freeman, 200
MAL 2015 (February 11, 2016) (per curiam order) (“Miller must be applied
retroactively” and “[petitioners are to be granted leave, to the extent
necessary,] to amend the post-conviction petition to assert the jurisdictional
provision of the [PCRA] extending to the recognition of constitutional rights
by the Supreme Court of the United States which it deems to be
retroactive.”); Commonwealth v. Goudy, 235 MAL 2015 (February 11,
2016) (per curiam order) (same); Commonwealth v. Phillips, 678 MAL
2015 (February 11, 2016) (per curiam order) (same). These developments
alleviate any concern with the requirement expressed in Abdul-Salaam
that, “[a] ruling concerning the retroactive application of [a] new
constitutional right must be made prior to the filing of the petition for
collateral relief.” Abdul-Salaam, 812 A.2d at 501-502. In addition, we
need not address Appellant’s claims concerning the amendment of his
petition or his eligibility for habeas corpus relief.




                                           -7-
J-S35028-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2016




                          -8-
