J-S64005-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

JAMES MILLER

                         Appellant                     No. 31 WDA 2014


              Appeal from the PCRA Order December 4, 2013
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0001854-1981


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                             FILED APRIL 08, 2016

      James Miller filed a petition for allowance of appeal with our Supreme

Court from our unpublished memorandum affirming the trial court’s order

denying his third petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546.         The Supreme Court of Pennsylvania

vacated this Court’s disposition and remanded for further proceedings

consistent with Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

Accordingly, we reverse and remand for resentencing.

      In August 1981, Miller was found guilty of second-degree murder and

related charges.    Miller was fifteen years old when he committed the

underlying offenses. Miller filed post-sentence motions, on August 28, 1981,

that were denied. He was sentenced on February 5, 1982 to life in prison

without the possibility of parole. Miller filed a timely direct appeal; our Court
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affirmed his judgment of sentence.             See Commonwealth v. Miller, No.

195 Pittsburgh 1982 (Pa. Super. filed Feb. 10, 1984). Miller subsequently

filed a petition for allowance of appeal to our Supreme Court which was

denied. See Commonwealth v. Miller, No. 68 W.D. Allocatur Docket 1984

(denied May 112, 1984).

       On December 31, 1986, Miller filed a pro se Post Conviction Relief

Hearing Act (PCHA)1 petition; counsel was appointed and later was granted

leave to withdraw. New counsel filed an amended PCHA petition on behalf of

Miller, which was denied on May 6, 1988.             On February 11, 1998, new

counsel filed a timely PCRA petition which was dismissed on August 20,

1998. Miller appealed that decision and our Court affirmed dismissal of his

petition.

       On July 30, 2012, Miller filed a pro se PCRA petition asserting that

pursuant to the United States Supreme Court’s decision in Miller v.

Alabama, 132 S. Ct. 2455 (2012),2 his life sentence is illegal.        Counsel,

Thomas N. Farrell, Esquire, was appointed to represent Miller; counsel
____________________________________________


1
  The PCHA was the predecessor of the current PCRA. “The PCHA was
repealed in part, modified in part, and renamed the Post Conviction Relief
Act [], effective April 13, 1988.” Commonwealth v. Travaglia, 28 A.3d
868, 872 n.2 (Pa. 2011).

2
  In Miller, the Supreme Court held that sentencing juveniles, under the age
of 18 at the time they committed a homicide offense, to mandatory life
imprisonment without the possibility of parole is a violation of the Eighth
Amendment’s prohibition on cruel and unusual punishment.



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subsequently filed an amended PCRA petition.      On July 29, 2013, Assistant

District Attorney Ronald Wabby filed a motion to stay the proceedings while

the issue of retroactive application of Miller was pending on appeal to our

Supreme Court. The court stayed the proceedings on August 28, 2013, and,

on October 30, 2013, the Pennsylvania Supreme Court determined that the

Miller holding does not apply retroactively to an inmate, serving a life

sentence without parole, who has exhausted his direct appeal rights and is

proceeding under the PCRA.      See Commonwealth v. Cunningham, 81

A.3d 1 (Pa. 2013), cert. denied, 134 S. Ct. 2724 (2014).

      On November 6, 2013, Attorney Farrell filed a motion to stay the PCRA

proceedings   until   the   United   States   Supreme    Court    ruled   upon

Cunningham.       On November 14, 2013, the PCRA court issued a

Pa.R.Crim.P. 907 notice of its intent to dismiss the PCRA petition. Counsel

filed a timely response to the Rule 907 notice, again requesting a stay, or, in

the alternative, leave to file an amended PCRA petition to raise the claim

that Miller violates Article I, Section 13 of the Pennsylvania Constitution.

On December 4, 2013, the court issued its final order denying PCRA relief

based on the holding of Cunningham that Miller is not retroactive and,

thus, does not apply to cases on collateral review.     Counsel filed a timely

notice of appeal on January 6, 2014.

      On appeal, our Court affirmed the PCRA court’s dismissal of Miller’s

petition, finding that he is not entitled to relief under Miller, where his

petition is untimely, he did not prove an exception the PCRA’s time bar

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provisions, and where Miller does not apply retroactively to cases on

collateral appeal under Cunningham.        However, our Court remanded the

matter to the trial court for amendment of the order denying PCRA relief to

the extent that the order violated Pa.R.Crim.P. 904(F)(2) and denied Miller

appointed counsel throughout the appeals process.

      On January 26, 2015, Miller petitioned out Supreme Court for

allowance of appeal. On March 18, 2016, the Pennsylvania Supreme Court

vacated our Court’s disposition and remanded the matter to this Court for

further proceedings consistent with Montgomery.

      After the United States Supreme Court’s holding in Montgomery,

Cunningham’s tenet that Miller cannot be applied retroactively is no longer

good law in Pennsylvania. See Commonwealth v. Secreti, 2016 PA Super

28 (Pa. Super. 2016) (interpreting Montgomery as making retroactivity

under Miller effective as of the date of the Miller decision).

      Here, the trial court sentenced Miller, who was a juvenile at the time of

the offense, to a mandatory sentence of life imprisonment without the

possibility of parole.      In light of the United States Supreme Court’s

recognition in Miller that such a sentence violates the Eighth Amendment’s

prohibition against cruel and unusual punishment, and the Court’s recent

retroactive application of Miller in Montgomery, we reverse the trial court’s

order and remand for resentencing.

      Order     reversed.      Remanded    for   resentencing.     Jurisdiction

relinquished.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/8/2016




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