J-S26038-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :        IN THE SUPERIOR COURT OF
                                           :              PENNSYLVANIA
                   Appellee                :
                                           :
                     v.                    :
                                           :
IAN CUNNINGHAM,                            :
                                           :
                   Appellant               :        No. 1780 EDA 2015

                  Appeal from the PCRA Order June 3, 2015
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0203131-2000,
                          CP-51-CR-0203141-2000

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

MEMORANDUM BY STRASSBURGER, J.:            FILED JUNE 03, 2016

     Ian Cunningham (Appellant), through counsel, appeals from the June

3, 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 2002, 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 that case, the Court held

unconstitutional   mandatory   sentences       of   life   imprisonment   without



*Retired Senior Judge assigned to the Superior Court.
J-S26038-16


possibility of parole 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, on review of the dismissal

of Appellant’s prior PCRA petition, that Miller does not apply retroactively.

Commonwealth v. Cunningham, 81 A.3d 1, 11 (Pa. 2013).

     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

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J-S26038-16


      Order reversed. Judgment of sentence vacated. Case remanded for

resentencing. Jurisdiction relinquished.

Judge Olson joins.

Judge Stabile concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 6/3/2016




      may have affected him, his past exposure to violence, his drug
      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)).

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