J-S04026-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

SCOTT WALKER,

                         Appellant                  No. 317 WDA 2015


              Appeal from the PCRA Order of January 27, 2015
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0009861-1994


BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                             FILED MARCH 1, 2016

      Appellant, Scott Walker, appeals from an order entered on January 27,

2015 in the Criminal Division of the Court of Common Pleas of Allegheny

County that denied his petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.       We vacate the order entered by

the PCRA court and remand for further proceedings consistent with this

memorandum.

      The factual and procedural history in this case is undisputed. On July

24, 1994, Appellant, then 15 years of age, fatally shot Randy Hawkins in

retaliation for a prior assault.     The Commonwealth subsequently charged

Appellant with one count of criminal homicide, 18 Pa.C.S.A. § 2501. On May

11, 1995, a jury found Appellant guilty of first-degree murder and on June

26, 1995, the court sentenced Appellant to a mandatory term of life

imprisonment without the possibility of parole.     We affirmed Appellant’s

*Retired Senior Judge assigned to the Superior Court.
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judgment of sentence on June 4, 1996 and our Supreme Court denied

further review on October 22, 1996. Commonwealth v. Walker, 683 A.2d

315 (Pa. Super. 1996) (unpublished memorandum), appeal denied, 685

A.2d 545 (Pa. 1996).

      In the ensuing years, Appellant filed unsuccessful petitions for

collateral relief in 2000, 2004, 2008, and 2010.        On June 25, 2012, the

United States Supreme Court issued its decision in Miller v. Alabama, 132

S.Ct. 2455 (U.S. 2012), concluding that mandatory sentences of life without

parole violated the Eighth Amendment of the United States Constitution

when imposed upon juvenile homicide defendants.           Thereafter, on July 6,

2012, Appellant filed this, his fifth, petition for collateral relief alleging that

his sentence was unconstitutional under Miller because he was 15 years of

age when he killed Hawkins. The PCRA court appointed counsel and stayed

the proceedings pending resolution of certain cases by the Pennsylvania

Supreme Court.

      On October 30, 2013, the Pennsylvania Supreme Court decided

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), holding (under an

analysis based upon federal law) that Miller did not apply retroactively to

cases like Appellant’s in which the judgment of sentence had already

become final.   On November 1, 2013, the Commonwealth filed an answer

seeking the dismissal of Appellant’s petition. On November 6, 2013, counsel

for Appellant again moved to stay the proceedings pending the United States




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Supreme Court’s disposition of a writ of certiorari filed in the Cunningham

case.

        On March 11, 2014, the PCRA court entered an order that lifted its

stay of the instant proceedings and gave notice of its intent to dismiss

Appellant’s petition without a hearing. The court explained that Appellant’s

petition was untimely. On April 10, 2014, Appellant filed a timely response

to the court’s Rule 907 notice and requested leave to file an amended PCRA

petition.      The   United    States   Supreme     Court    denied   certiorari   in

Cunningham on June 9, 2014 and, on January 27, 2015, the PCRA court

entered a final order dismissing Appellant’s PCRA petition. Appellant filed a

timely notice of appeal on February 25, 2015. After receiving an extension,

Appellant    filed   a   timely,   court-ordered   concise   statement   of   errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).            The PCRA court

issued its Rule 1925(a) opinion on June 12, 2015.

        Appellant raises the following questions for our review:

        Whether the PCRA court violated Appellant’s rights under the
        Eighth Amendment when Appellant continues to serve a life
        sentence without the possibility of parole which was imposed
        when Appellant was a juvenile?

        Whether Appellant’s right under Article I, Section 13 of the
        Pennsylvania    Constitution    was    violated     and  whether
        Pennsylvania law allows for the retroactivity of Miller?

        Whether the PCRA court violated Rule 905(A) of the
        Pennsylvania Rules of Criminal Procedure by failing to grant
        Appellant’s motion to amend the PCRA petition?




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       Whether Appellant was entitled to habeas corpus relief when
       Appellant continues to serve a life sentence without the
       possibility of parole which was imposed when Appellant was a
       juvenile?

Appellant’s Brief at 4.1

       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).

____________________________________________


1
  We have re-ordered the sequence of Appellant’s claims to facilitate our
analysis.



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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,

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

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


____________________________________________


2
    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).



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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 on January 21, 1997,

90 days after our Supreme Court denied further review and the time for

filing a petition for writ of certiorari with the United States Supreme Court

expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup. Ct. R. 13. Appellant had

to file a PCRA petition on or before January 21, 1998 in order for the petition

to be timely filed. Appellant filed the instant petition on July 6, 2012; hence,

the petition is patently untimely unless Appellant pleads and proves an

exception to the PCRA’s time bar.

      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 July 6, 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


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§ 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

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.3        Accordingly, we vacate the order


____________________________________________


3
   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
(Footnote Continued Next Page)


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

remand this matter for re-sentencing under 18 Pa. C.S.A. § 1102.1

(sentence    of   persons       under    the     age   of   18   for   murder).    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.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/1/2016




                       _______________________
(Footnote Continued)

need not address Appellant’s claims concerning the amendment of his
petition or his eligibility for habeas corpus relief.




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