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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                        :
KEITH JOHNSON,                          :         No. 2020 WDA 2013
                                        :
                        Appellant       :


             Appeal from the PCRA Order, November 25, 2013,
             in the Court of Common Pleas of Allegheny County
              Criminal Division at No. CP-02-CR-0005882-1985


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.


JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.:             FILED APRIL 06, 2016

      Keith Johnson filed a petition for allowance of appeal from our

unpublished judgment order affirming the trial court order denying his

second 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). We reverse and remand for resentencing.

      On May 19, 1985, while 16 years of age, appellant stabbed another

teenager to death on the Fort Duquesne Bridge in Pittsburgh.             On

October 18, 1985, a jury convicted appellant of first-degree murder; and on

July 23, 1986, appellant was sentenced to a mandatory sentence of life

imprisonment without the possibility of parole.
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        On December 4, 1987, this court affirmed the judgment of sentence;

and     on   November     2,    1988,   our     supreme   court    denied    appeal.

Commonwealth v. Johnson, 536 A.2d 825 (Pa.Super. 1987) (unpublished

memorandum), appeal denied, 552 A.2d 250 (Pa. 1988). Appellant’s first

PCRA petition was filed on July 16, 2010, and was denied on March 30,

2011.

        Appellant filed the instant PCRA petition on July 16, 2012, within

60 days of the United States Supreme Court’s June 25, 2012 decision in

Miller v. Alabama,         U.S.      , 132 S.Ct. 2455 (2012), which held that it

is unconstitutional to sentence individuals who were under 18 years of age

at the time of their offense to a mandatory minimum sentence of life

imprisonment without the possibility of parole. Appellant’s petition invoked

the after-recognized constitutional right exception to the time restrictions of

the PCRA. See 42 Pa.C.S.A. § 9545(b)(1)(iii).

        On January 27, 2015, this court held that we did not have jurisdiction

to review appellant’s petition because our supreme court held that Miller did

not apply retroactively to persons on collateral review. Commonwealth v.

Cunningham, 81 A.3d 1 (Pa. 2013).               Appellant petitioned our supreme

court for an allowance of appeal, which was granted. See Commonwealth

v. Johnson, 2016 WL 593964 (Pa. 2016).              In light of the United States

Supreme      Court’s   recent   decision   in   Montgomery,       the   Pennsylvania




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Supreme Court remanded this case to this court for further proceedings

consistent with Montgomery on February 11, 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 16 years old at the

time of the offense, to a mandatory sentence of life imprisonment without

the possibility of parole.   In light of the 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.

      Order     reversed.    Remanded      for   resentencing.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/6/2016




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