J-S12037-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
GERMAN CRUZ,                              :
                                          :
                 Appellant                :    No. 1769 EDA 2015

                  Appeal from the PCRA Order June 3, 2015
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0310322-1997

BEFORE:    MUNDY, OLSON, and STRASSBURGER,* JJ.

JUDGMENT ORDER BY STRASSBURGER, J.:FILED MARCH 30, 2016

     German Cruz (Appellant) pro se appeals in forma pauperis (IFP) from

the June 3, 2015 order that denied his petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.       We reverse the

PCRA order, vacate Appellant’s judgment of sentence, and remand for

resentencing.

     In 1999, Appellant was sentenced to, inter alia, life imprisonment

without possibility of parole following his conviction for first-degree murder

based upon events that took place when Appellant was 17 years old.

     On June 14, 2010, Appellant filed a petition for PCRA relief. He later

amended that petition to seek relief based upon the United States Supreme

Court’s decision in Miller v. Alabama, 132 S.Ct. 2455 (2012), in which the

Court held unconstitutional mandatory sentences of life imprisonment


*Retired Senior Judge assigned to the Superior Court.
J-S12037-16


without possibility of parole imposed upon individuals who were juveniles at

the time they committed homicides.          The PCRA court determined that

Appellant did not properly invoke the newly-recognized-constitutional-right

exception to the PCRA’s one-year timeliness requirement provided in 42

Pa.C.S.   §9545(b)(1)(iii)      because   our   Supreme    Court   held    in

Commonwealth v. Cunningham, 81 A.3d 1, 11 (Pa. 2013), that Miller

does not apply retroactively.

      While this appeal was pending, the U.S. Supreme Court decided in

Montgomery v. Louisiana, 136 S.Ct. 718 (2016), that Miller announced a

new substantive rule of law which applies retroactively.    Thereafter, this

Court held that Montgomery renders “retroactivity under Miller effective as

of the date of the Miller decision.” Commonwealth v. Secreti, 2016 Pa.

Super. 28, 2016 WL 513341 at *5 (Pa. Super. filed February 9, 2016).

      Under Secreti, Appellant’s PCRA petition meets the           timeliness

exception provided by 42 Pa.C.S. § 9545(b)(1)(iii).          Under Miller,

Montgomery, and Secreti, Appellant is entitled to PCRA relief in the form

of resentencing following judicial consideration of appropriate age-related

factors. See Commonwealth v. Batts, 66 A.3d 286, 297 (Pa. 2013).1



1
      [A]t a minimum [the sentencing court] should consider a
      juvenile’s age at the time of the offense, his diminished
      culpability and capacity for change, the circumstances of the
      crime, the extent of his participation in the crime, his family,
      home and neighborhood environment, his emotional maturity


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J-S12037-16


      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.

      Order reversed. Judgment of sentence vacated. Case remanded for

resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 3/30/2016




      and development, the extent that familial and/or peer pressure
      may have affected him, his past exposure to violence, his drug
      and alcohol history, his ability to deal with the police, his
      capacity to assist his attorney, his mental health history, and his
      potential for rehabilitation.

Batts, 66 A.3d at 297 (quoting Commonwealth v. Knox, 50 A.3d 732, 745
(Pa. Super. 2012)).



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