J-S12044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                      :
                                            :
                    v.                      :
                                            :
DAVID M. FREEMAN                            :
                                            :
                          Appellant         :     No. 1852 EDA 2014

                   Appeal from the PCRA Order May 23, 2014
                In the Court of Common Pleas of Lehigh County
               Criminal Division No(s).: CP-39-CR-0001078-1995


BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

JUDGMENT ORDER BY FITZGERALD, J.:                      FILED APRIL 18, 2016

        Appellant, David M. Freeman, appeals from the order entered in the

Lehigh County Court of Common Pleas dismissing his first Post Conviction

Relief Act1 (“PCRA”) petition as untimely. This case returns to us after the

Pennsylvania Supreme Court granted Appellant’s petition for allowance of

appeal, vacated our prior decision affirming the dismissal of his first PCRA

petition, and remanded the case for further proceedings consistent with

Montgomery v. Louisiana, 136 S. Ct. 719 (2016). We reverse the PCRA

court’s order dismissing Appellant’s first PCRA petition, vacate the judgment

of sentence, and remand for resentencing.

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
J-S12044-15


     As our prior memorandum noted, Appellant was sixteen years old at

the time of the underlying murder, and on December 15, 1995, he pleaded

guilty to murder in the first degree.          The trial court imposed a then-

mandatory sentence of life imprisonment without parole. On July 7, 2010,

Appellant filed the instant pro se PCRA petition. He alleged that Miller v.

Alabama, 132 S. Ct. 2455 (2012), held that a mandatory life without parole

sentence for a juvenile violated the Eighth Amendment prohibition on cruel

and unusual punishment, and thus his sentence should be vacated. After a

lengthy procedural history, the PCRA court dismissed his petition, and this

Court affirmed on February 25, 2015.

     On March 16, 2015, Appellant filed a petition for allowance of appeal

with our Supreme Court. On January 25, 2016, the United States Supreme

Court held that Miller v. Alabama, 132 S. Ct. 2455 (2012), “announced a

substantive   rule   that   is   retroactive   in   cases   on   collateral   review.”

Montgomery, 136 S. Ct. at 732.           Thus, on March 8, 2016, our Supreme

Court granted Appellant’s petition for allowance of appeal, vacated this

Court’s February 25, 2015 decision, and remanded for further proceedings

consistent with Montgomery. Order, 3/8/16. Accordingly, we reverse the

PCRA court’s order dismissing Appellant’s petition, vacate Appellant’s

judgment of sentence, and remand for resentencing in accordance with

Miller and Commonwealth v. Batts, 66 A.3d 286, 297 (Pa. 2013).




                                        -2-
J-S12044-15


      Order reversed. Judgment of sentence vacated. Case remanded for

resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/18/2016




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