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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                      v.                    :
                                            :
EDWARD WALLS,                               :        No. 2001 WDA 2013
                                            :
                           Appellant        :


                Appeal from the PCRA Order, December 11, 2013
               in the Court of Common Pleas of Allegheny County
                Criminal Division at No. CP-02-CR-0008331-1996


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED MARCH 30, 2016

        Edward Walls filed a petition for allowance of appeal with our supreme

court from our unpublished memorandum affirming the trial court order

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

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

remanded      for   further   proceedings   consistent   with   Montgomery     v.

Louisiana,          U.S.      , 136 S.Ct. 718 (2016).     Accordingly, we reverse

and remand for resentencing.

        On March 6, 1997, a jury convicted appellant of one count of criminal

homicide, and other related crimes. The charges related to a May 25, 1996

drive-by shooting in which the victim sustained a fatal gunshot wound to the

head.    Appellant, who was 15 years old at the time of the incident, was

sentenced to the mandatory term of life imprisonment without the possibility


* Retired Senior Judge assigned to the Superior Court.
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of parole on the criminal homicide charge, and an aggregate of 10 years,

9 months to 45 years’ imprisonment on the remaining counts.

     On August 11, 1999, this court affirmed the judgment of sentence.

Commonwealth       v.   Walls,   No.    1121    Pittsburgh   1997,   unpublished

memorandum (Pa.Super. filed August 11, 1999).          Appellant did not file a

petition for allowance of appeal with the Pennsylvania Supreme Court.

Appellant filed two PCRA petitions which were dismissed.

     On June 25, 2012, the United States Supreme Court subsequently

handed down Miller v. Alabama,               U.S.    , 132 S.Ct. 2455 (2012),

which held that sentencing a person who was a juvenile at the time of the

offense to a mandatory term of life imprisonment without parole for

homicide violated the Eighth Amendment’s restriction on cruel and unusual

punishment.

     On July 5, 2012, appellant filed his third PCRA petition, alleging that

the after-recognized constitutional right exception to the PCRA’s one-year

statutory time-bar applied, invoking Miller.        The PCRA court dismissed

appellant’s petition on December 11, 2012, holding that Miller did not apply

retroactively based on our supreme court’s decision in Commonwealth v.

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

Walls, No. 2001 WDA 2013, unpublished memorandum (Pa.Super. filed

November 10, 2014).       Appellant petitioned our supreme court for an

allowance of appeal on July 29, 2014. In light of the United States Supreme



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Court’s recent decision in Montgomery, the Pennsylvania Supreme Court

remanded this case to this court for further proceedings consistent with

Montgomery on February 17, 2016. See Commonwealth v. Walls, 2016

WL 634109 (Pa. 2016).

      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 WL

513341 (Pa.Super. 2016) (interpreting Montgomery as making retroactivity

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

      Here, the trial court sentenced appellant, who was 15 years old 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.

      Appellant is entitled to the assistance of counsel for his resentencing

proceedings. Com. ex rel. Wright v. Cavell, 220 A.2d 611, 614 (Pa. 1966)

(noting that sentencing is a critical stage of a criminal proceeding at which a

criminal defendant has a constitutional right to counsel). Because appellant

has established his indigency in order to proceed IFP, the trial court upon

remand shall appoint counsel to represent appellant.



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      Order     reversed.     Remanded     for   resentencing.       Jurisdiction

relinquished.



      Wecht, J. did not participate in the consideration of this decision.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/30/2016




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