J. S16039/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                       Appellee          :
                                         :
                 v.                      :
                                         :
JONATHAN D. LITTLE,                      :
                                         :
                       Appellant         :     No. 1919 EDA 2015

                Appeal from the PCRA Order May 26, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0405382-2000

BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY DUBOW, J.:                            FILED APRIL 13, 2016

     Appellant, Jonathan Little, appeals pro se from the Order denying as

untimely his second Petition filed pursuant to Post-Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §9542-9545. In light of Montgomery v. Louisiana,

136 S.Ct. 718 (2016), and Commonwealth v. Secreti, __ A.3d __, 2016

WL 513341 (Pa. Super. filed Feb. Feb. 9, 2016), we vacate and remand for

further proceedings consistent with Montgomery.

     In 2001, when Appellant was fifteen years old, he was tried as an

adult by a jury and convicted of first-degree murder, possessing instruments

of crime, and criminal conspiracy.    The trial court imposed, inter alia, a

mandatory term of life imprisonment without the possibility of parole

(“LWOP”) for the murder conviction.    This Court affirmed his judgment of

sentence, and our Supreme Court denied allocatur.
J. S16039/16


      Appellant’s first timely PCRA petition, asserting ineffective assistance

of counsel, was denied without a hearing, and this Court affirmed in 2007. In

2010, Appellant filed his second PCRA petition, and amended it in August

2012, asserting a new constitutional right under Miller v. Alabama, __ U.S.

__, 132 S.Ct. 2455 (2012).1 On May 26, 2015, the PCRA court denied the

petition   without   a   hearing   as   untimely,   noting   that   pursuant   to

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), Miller did not

create a new retroactive constitutional right. See Trial Court Order and

Memorandum, dated May 26, 2015, at 1 n.1.

      Appellant timely appealed pro se on June 22, 2015, raising the

following issues:

      a. The above named Petitioner is being deprived of his State
         Constitutional Rights and suffering an extreme inequity of justice as
         held under Article 1 §13 and § 26 of Pennsylvania’s Constitutional
         Declaration of Rights. In conjunction with violations of his 8 th and
         14th Amendments of the United States Constitution.

      b. Petitioner in this matter avers that a “mandatory” sentence of life
         without the possibility of parole for a juvenile violates Article 1 §13,
         and Article 1 § 26, of the Pennsylvania Constitution which prohibits
         “Cruel Punishment” or “Deny to any person the enjoyment of any
         Civil Right.”

      c. The   Pennsylvania Supreme  Court    stated themselves   in
         Commonwealth v. Cunningham, No. 38 EAP 2012, quoting
         Geter, 115 So. 3rd at 377: [“Clearly and unequivocally, the

1
  Appellant filed a petition for habeas corpus relief in December 2013. The
trial court noted that the issue raised, i.e., a newly recognized constitutional
right, was cognizable under Section 9545(b)(1)(iii) of the PCRA. The trial
court, thus, considered the petition to be a second amendment to his 2010
PCRA petition. See Trial Court Order, dated 5/26/15, at 1.



                                        -2-
J. S16039/16


         Supreme     Court    distinguished    between      the    substantive
         determinations of a categorical bar prohibiting a ‘penalty for a class
         of offenders or type of crime,’ as in Roper, and Graham.”] Thus,
         applying Graham retroactive to juvenile offenders on collateral
         review.

       d. Must an evidentiary hearing be held when it is impossible to
          determine from the record that PCRA claims are frivolous? The
          Commonwealth’s untimely claims are frivolous when the
          constitutionality of a sentence is at question and is the issue, and
          the basis of the request for an evidentiary hearing.

Appellant’s Brief at 1-2.

       On January 25, 2016, while Appellant’s PCRA appeal was pending, the

U.S. Supreme Court decided Montgomery, supra, holding that Miller must

be applied retroactively by the States.

       “In reviewing the propriety of an order granting or denying PCRA

relief, an appellate court is limited to ascertaining whether the record

supports the determination of the PCRA court and whether the ruling is free

of legal error.” Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa.

2009). We pay great deference to the findings of the PCRA court, “but its

legal determinations are subject to our plenary review.” Commonwealth v.

Mattias, 63 A.3d 807, 810 (Pa.Super. 2013), quoting Johnson, supra at

532.

       Appellant challenges the LWOP imposed upon him as a juvenile. The

PCRA court denied Appellant’s request for collateral relief after concluding

that Cunningham, supra, explicitly provided that Miller did not create a

new constitutional right that applies retroactively. This issue implicates the



                                     -3-
J. S16039/16


holding of the U.S. Supreme Court’s recent decision in Montgomery,

supra.

      In Secreti, supra, this Court recently recognized that “Montgomery

has clarified Miller with regard to its substantive law and retroactivity.

Consequently, … Cunningham, supra, no longer controls in this context.”

Secreti, supra at *5. The panel concluded that “Miller remains the lodestar

for substantive constitutional law on this subject such that the retroactivity

determination will be deemed to have existed at the time the pending

petition[ was] filed.”      Secreti, supra at *6.     Thus, as a result of

Montgomery, “the Miller rule of law ‘has been held’ to be retroactive for

purposes of collateral review as of the date of the Miller decision on June

25, 2012.” Secreti at *6, citing Commonwealth v. Abdul-Salaam, 812

A.2d 497, 501-2 (Pa. 2002) (noting that the “language ‘has been held’ in 42

Pa.C.S. § 9545(b)(1)(iii) means that a retroactivity determination must exist

at the time that the Petition is filed.”).

      The instant case “represents an example of the unique situation

implicating those PCRA petitions seeking Miller relief which were filed in the

time gap following Miller but before Montgomery.” Secreti, supra, at *5.

Here, Appellant amended his current PCRA petition on August 20, 2012,

within 60 days of the June 25, 2012 Miller decision, as required by Section

9545(b)(2), and asserted Miller’s substantive law as an exception to the

PCRA timeliness requirements, as provided in Section 9545(b)(1)(iii). While



                                        -4-
J. S16039/16


the appeal of the denial of his PCRA Petition was pending in this Court, the

U.S. Supreme Court decided Montgomery.

         Because Appellant had timely raised his Miller claim, and his Petition

was pending on appeal at the time Montgomery was decided, Appellant’s

issues     are   cognizable    under   the     rule    announced      in    Montgomery.

Accordingly, we reverse the PCRA court’s order, vacate Appellant’s judgment

of   sentence,      and      remand    for    resentencing       in   accordance     with

Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013).2 See Secreti, supra

at *6.

         Order   reversed;    case    remanded        for   resentencing.     Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/13/2016




2
  In Batts, supra, the Pennsylvania Supreme Court recognized that “Miller
requires only that there be judicial consideration of the appropriate age-
related factors set forth in that decision prior to the imposition of a sentence
of life without parole on a juvenile.” Batts, 66 A.3d. at 296.



                                             -5-
