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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                       Appellee

                  v.

IVORY KING

                       Appellant                No. 3323 EDA 2014


             Appeal from the PCRA Order November 7, 2014
              In the Court of Common Pleas of Bucks County
           Criminal Division at No(s): CP-09-CR-0003727-1978


                                   *****

COMMONWEALTH OF PENNSYLVANIA               IN THE SUPERIOR COURT OF
                                                 PENNSYLVANIA
                       Appellee

                  v.

JOHN LEKKA

                       Appellant                No. 3333 EDA 2014


             Appeal from the PCRA Order November 7, 2014
              In the Court of Common Pleas of Bucks County
           Criminal Division at No(s): CP-09-CR-0001295-1978


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

CONCURRING AND DISSENTING MEMORANDUM BY LAZARUS, J.:

                                               FILED MARCH 23, 2016
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       I concur. I believe that we should follow the procedure established by

our Pennsylvania Supreme Court, in its per curiam orders,1 to dispose of

currently pending PCRA petitions raising the Miller issue that were filed prior

to the Montgomery decision.2 Specifically, the orders denying PCRA relief
____________________________________________


1
   Although we have chosen to follow the procedure annunciated in our
Supreme Court’s per curiam orders, we are cognizant of our Court’s
decision, Commonwealth v. Secreti, 2016 PA Super 28 (Pa. Super. filed
Feb. 9, 2016), that applied Montgomery to cases currently on collateral
appeal, like the instant case. Specifically, in Secreti, our Court held that 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. Moreover,
the Court held that the date of the Montgomery decision would control for
purposes of the 60-day rule in section 9545(b)(2)(iii). Ultimately, the Court
reversed the PCRA court’s order denying defendant relief, vacated
defendant’s judgment of sentence, and remanded for resentencing. We find
the procedure advanced in the Supreme Court’s orders more aligned with its
established procedures. See Commonwealth v. Cabeza, 469 A.2d 146
(Pa. 1983) (while appellate courts typically apply law in effect at time of
appellate decision, principle applies in direct appeal context, not to cases on
collateral appeal); Commonwealth v. Abdul-Salaam, 812 A.2d 497 (Pa.
2002) (holding that “[an] action has already occurred, i.e., ‘that court’ has
already held the new constitutional right to be retroactive to cases on
collateral review[;]” in writing section 9545(b)(2)(iii), legislature clearly
intended the right was already recognized and held to be retroactive at time
petition was filed); Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000)
(holding that second appeal cannot be taken when another proceeding of the
same type is already pending; subsequent PCRA petition must be filed within
60 days of date of order which finally resolves the previous PCRA petition
because this is first “date the claim could have been presented.”).
2
  In an attempt to permit nunc pro tunc amendment of these pending
petitions so that petitioners can take advantage of the Montgomery ruling,
the Supreme Court specifically ordered that:

       [t]o the extent necessary, leave is to be granted to amend the
       post-conviction petition to assert the jurisdictional provision of
       the Post Conviction Relief Act extending to the recognition of
(Footnote Continued Next Page)


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in those cases should be reversed and the cases remanded to permit

amendment of those petitions to allege the section 9545(b)(1)(iii) exception

in light of Montgomery.3

                       _______________________
(Footnote Continued)

      constitutional rights by the Supreme Court of the United States
      which it deems to be retroactive.         See 42 Pa.C.S. §
      9545(b)(1)(iii).

See Commonwealth v. Jones, Jr., No. 947 MAL 2015 (per curiam order)
(Pa. filed Feb. 12, 2016); Commonwealth v. Buli, 876 MAL 2015 (per
curiam order) (Pa. filed Feb. 12, 2016); Commonwealth v. Christina, 183
WAL 2015 (Pa. filed Feb. 11, 2016); Commonwealth v. Phelps, 678 MAL
2015 (Pa. filed Feb. 11, 2016).
3
  I also write separately to highlight the fact that the recent decision by the
United States Supreme Court, Montgomery v. Louisiana, No. 14-280,
2016 U.S. LEXIS 862 at *---- (U.S. Jan. 25, 2016), has resulted in an
unprecedented situation. Appellants requesting collateral relief pursuant to
Miller v. Alabama, 132 S.Ct. 2455 (2012), have been denied collateral
relief on the grounds that our Pennsylvania Supreme Court had decided that
Miller was not to be applied retroactively.          See Commonwealth v.
Cunningham, 81 A.3d 1 (Pa. 2013). Had Montgomery been the law at the
time the petition was filed, however, that petitioner would have been
entitled to collateral relief.

      While our appellate courts typically apply the law in effect at the time
of the appellate decision, this principle applies in the direct appeal context,
not to cases on collateral appeal. See Cabeza, supra. In the context of
untimely PCRA petitions invoking the newly-recognized constitutional right
exception set forth in 42 Pa.C.S. § 9545(b)(1)(iii),3 our Supreme Court
determined that the language “has been held by that court to apply
retroactively” means that:

      [T]he action has already occurred, i.e., “that court” has already
      held the new constitutional right to be retroactive to cases on
      collateral review. By employing the past tense in writing this
      provision, the legislature clearly intended that the right was
      already recognized [and held to be retroactive] at the time the
      petition was filed.
(Footnote Continued Next Page)


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                       _______________________
(Footnote Continued)


Abdul-Salaam, supra at 501 (emphasis added). Therefore, any petitions
raising Miller, which were filed prior to Montgomery, should not be able to
take advantage of the Montgomery holding while those petitions are on
collateral appeal.

       I believe that the best way for these PCRA petitioners to take
advantage of the Montgomery ruling, which is in line with established
Supreme Court case law, is to affirm the denial of the current PCRA petition
on collateral review and direct the appellant to file a subsequent PCRA
petition, raising the claim, within 60 days of the date that our appellate court
rules upon the current collateral appeal. Because of the strictures imposed
by Cabeza and Abdul-Salaam, this is technically the first “date the claim
could have been presented.” 42 Pa.C.S. § 9545(b)(2).

      This procedure was advanced in Lark, supra, where a petitioner
sought to remand his collateral appeal to the trial court for an evidentiary
hearing in order to raise new grounds for collateral relief. Acknowledging
that “a second appeal cannot be taken when another proceeding of the same
type is already pending,” id. at 588, the Court held:

      [W]hen an appellant’s PCRA appeal is pending before a court, a
      subsequent PCRA petition cannot be filed until the resolution of
      review of the pending PCRA petition by the highest state court in
      which review is sought, or upon the expiration of the time for
      seeking such review. If the subsequent petition is not filed
      within one year of the date when the judgment became final,
      then the petitioner must plead and prove that one of the three
      exceptions to the time bar under 42 Pa.C.S. § 9545(b)(1)
      applies. The subsequent petition must also be filed within
      60 days of the date of the order which finally resolves the
      previous PCRA petition, because this is the first “date the
      claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

Id.
      In employing this practice, petitioners and PCRA courts must be
mindful of the 60-day window within which to take advantage of the
Montgomery decision. Such time-sensitivity is critical in order for the court
to have jurisdiction to retroactively apply the substantive rule of
constitutional law espoused in Miller where juvenile homicide offenders shall
be considered for parole.3
(Footnote Continued Next Page)


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                       _______________________
(Footnote Continued)


       Moreover, because an amended petition is merely an extension of an
existing petition rather than a new and distinct petition, Commonwealth v.
Tedford, 781 A.2d 1167, 1171 n.6 (Pa. 2001), these newly amended
petitions sent back to incorporate Montgomery are still considered filed
prior to the date of the Montgomery decision in violation of Lark and the
clear language of section 9545(b)(1)(iii).        I also do not believe that
Montgomery effectively post-dates Miller so as to transform these
petitions into ones where “the right was already recognized [and held to be
retroactive] at the time the petition was filed.”

      For these reasons, I believe that the procedure that conforms most
with established case law is to uniformly treat the petitions under the
dictates of Lark. That would entail affirming the denial of the current
untimely petition and having the petitioner file a new petition, within 60 days
of our disposition, raising Montgomery as it applies under section
9545(b)(1)(iii).




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