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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                   :
                                         :
SAMUEL GLADDEN,                          :           No. 1572 EDA 2015
                                         :
                         Appellant       :


                   Appeal from the PCRA Order, May 14, 2015,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0430781-1992


BEFORE: FORD ELLIOTT, P.J.E., OTT AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED MARCH 16, 2016

        Samuel Gladden appeals, pro se, from the May 14, 2015 order

denying his third petition filed pursuant to the Post Conviction Relief Act

(“PCRA”),     42 Pa.C.S.A.   §§   9541-9546,   following   his   convictions   of

second-degree murder and possession of an instrument of crime.1                We

reverse and remand for resentencing.

        On May 18, 1993, a jury convicted appellant, who was 16 years old at

the time of the offense, of second-degree murder and possession of an

instrument of crime. On March 16, 1994, the trial court sentenced appellant

to a mandatory sentence of life imprisonment without the possibility of

parole.    This court affirmed the judgment of sentence on September 26,



1
    18 Pa.C.S.A. §§ 2502(b) and 907, respectively.
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1995. See Commonwealth v. Gladden, 665 A.2d 1201 (Pa.Super. 1995)

(en banc). The Supreme Court of Pennsylvania denied appellant’s petition

for allowance of appeal on April 24, 1996.              See Commonwealth v.

Gladden, 675 A.2d 1243 (Pa. 1996).

      On March 20, 1997, appellant filed his first petition pursuant to the

PCRA. The trial court dismissed appellant’s petition on December 15, 1997.

Appellant filed a second PCRA petition on May 1, 2000, which the trial court

dismissed as untimely on September 20, 2000. Appellant appealed the trial

court’s   dismissal,    which   we     affirmed   on    May   18,   2001.    See

Commonwealth           v.   Gladden,    No.   2923      EDA   2000,   unpublished

memorandum (Pa.Super. filed May 18, 2001).                The Supreme Court of

Pennsylvania denied allowance of appeal on October 1, 2001.                  See

Commonwealth v. Gladden, 788 A.2d 373 (Pa. 2001).

      Appellant filed his third PCRA petition, which is at issue in the instant

case, on July 2, 2010. On July 30, 2012, appellant filed an amended PCRA

petition in response to the Supreme Court of the United States’ decision in

Miller v. Alabama, 132 S.Ct. 2455 (2012).               On December 17, 2013,

appellant motioned for leave to supplement his petition for habeas corpus

relief and filed an amended PCRA petition on that date. On June 24, 2014,

the trial court notified appellant of its intent to dismiss his PCRA petition as

untimely, pursuant to Pa.R.Crim.P. 907.                The trial court dismissed




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appellant’s PCRA petition on May 14, 2015. Appellant filed a notice of appeal

on May 26, 2015.

      Appellant raises the following issues for our review:

            I.     Should review be granted to determine if the
                   Court of Common Pleas deprived appellant his
                   due process and equal protection rights when
                   failing to accept appellant’s writ of habeas
                   corpus and a PCRA petition, violating the
                   United    States   Constitution   8   and   14
                   Amendment [sic]; Pennsylvania Constitution,
                   Article   I,  Section   13;    United  Nations
                   Convention on the Rights of the Child Article
                   37[?]

            II.    Should review be granted to determie [sic] if
                   the Commonwealth Court of Common Pleas
                   erred by allowing an unconstitutional sentence
                   to stand which [is] a violation of Pennsylvania
                   Constitution, Article I, Section 1, 9, 11, 13, 14,
                   and the 25 [sic], also the United States
                   Constitution, 8th and 14th Amendment [sic][?]

Appellant’s brief at 3.

      The trial court acknowledged that appellant,

            did not waive his Miller claim because he raised it
            within sixty days of the date that Miller was
            decided[. However, appellant] still had the burden
            of establishing that [the trial court] had jurisdiction
            to address his claim.      See Commonwealth v.
            Seskey, 86 A.3d 237, 241 (Pa.Super. 2014).
            [Appellant] did not meet his burden because the
            Pennsylvania Supreme Court ruled that Miller did
            not create a new constitutional right that applies
            retroactively. Commonwealth v. Cunningham, 81
            A.3d 1 (Pa. 2013), cert. denied, 134 S.Ct. 2724
            (2014).

Trial court opinion, 5/14/15 at 2.



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     Indeed, at the time of the trial court’s order and opinion dismissing

appellant’s PCRA petition, Cunningham controlled all Miller claims filed

pursuant to the PCRA, and our supreme court found that Miller protections

did not apply retroactively in Pennsylvania.2 Cunningham, 81 A.3d at 11.

While this appeal was pending in this court, however, the Supreme Court of

the United States announced its decision in Montgomery v. Louisiana, 136

S.Ct. 718 (2016). The Montgomery Court held that its decision in Miller

“announced a substantive rule of constitutional law.”           Id. at 734.

Specifically, the Court stated that, “Miller’s conclusion that the sentence of

life without parole is disproportionate for the vast majority of juvenile

offenders raises a grave risk that many are being held in violation of the

Constitution.” Id. at 736.

     In order to prevent such harm, the Court found that substantive rules,

much like the rule announced in Miller, must be retroactive, “because

[they] ‘“necessarily carr[y] a significant risk that a defendant”’--here, the

vast majority of juvenile offenders--‘“faces a punishment that the law cannot

impose upon him.’” Id. at 734, quoting Schriro v. Summerlin, 542 U.S.

348, 352 (2004) (citations omitted). Therefore, Cunningham’s tenet that

Miller cannot be applied retroactively is no longer good law in Pennsylvania.




2
  In Miller, the Supreme Court of the United States held that mandatory
sentences of life imprisonment without the possibility of parole for juvenile
offenders violated the Eighth Amendment. Miller, 132 S.Ct. at 2469.


                                    -4-
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      A recent panel of this court analyzed the further implications of

Montgomery on Pennsylvania case law.

            We now turn our attention to the implications arising
            from [Commonwealth v. Abdul-Salaam, 812 A.2d
            497, 502 (Pa.2002)], (holding: “[T]he 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”) (emphasis added).

                   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.             ...
            When Appellant filed his petition, the various
            jurisdictions were still trying to decide if Miller was
            available on collateral review but were doing so
            without the benefit of Montgomery. Appellant's
            petition was ultimately decided under Cunningham,
            supra and denied. We recognize that similar “gap”
            cases are in the appellate system awaiting
            disposition . . . .

                   Therefore, we now hold that the best
            resolution of this dilemma is to interpret
            Montgomery as making retroactivity under Miller
            effective as of the date of the Miller decision. In
            this way, we satisfy the “has been held” conditional
            language enunciated in Abdul–Salaam, supra.

Commonwealth v. Secreti, 2016 WL 513341 (Pa.Super. 2016) at *5-6

(citations reformatted).

      As a result, appellant has proven by a preponderance of the evidence

that the right he is asserting is a constitutional right recognized, in this case,

by the Supreme Court of the United States to apply retroactively. 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


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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

re-sentencing.

      Order reversed; case remanded for resentencing. Appellant’s motion

for extraordinary relief is denied for mootness. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/16/2016




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