J-S72011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RODERICK TODD ALLEN,

                            Appellant                 No. 213 WDA 2014


             Appeal from the PCRA Order Entered January 14, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0007206-1979


BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                         FILED APRIL 29, 2016

        This case is before us on remand from our Supreme Court.           After

careful review, we reverse the PCRA Court’s order denying relief and remand

for resentencing.

        We previously summarized the relevant factual and procedural history

of this case as follows:

              On March 28, 1980, at the conclusion of a jury trial,
        Appellant was convicted of second-degree murder, robbery,
        criminal conspiracy, and firearms violations. On June 30, 1980,
        he was sentenced to, inter alia, a [mandatory] term of life
        imprisonment.

               On September 11, 1980, Appellant filed a pro se PCRA
        petition. Appellant was appointed counsel. A hearing was held
        on May 5, 1981. Following the hearing, the court reinstated
        Appellant’s right to file a direct appeal nunc pro tunc, and his
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     right to file post-sentence motions.        Subsequently, post-
     sentence motions were filed; they were denied on January 12,
     1983. Appellant filed an appeal nunc pro tunc, and this Court
     affirmed Appellant’s judgment of sentence on May 24, 1985.
     See Commonwealth v. Allen, 496 A.2d 848 (Pa. Super. 1985)
     (unpublished memorandum). The Pennsylvania Supreme Court
     denied Appellant’s petition for allowance of appeal on December
     13, 1985.

            Appellant filed a pro se petition to file a writ of coram nobis
     on January 28, 2003. Counsel was appointed and subsequently
     filed a motion to withdraw pursuant to Commonwealth v.
     Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v.
     Finley, 479 A.2d 568 (Pa. Super. 1984). The court granted
     counsel’s motion to withdraw on September 23, 2003. The
     petition was dismissed on October 23, 2003. Appellant filed a
     timely appeal. On June 27, 2005, this Court reversed the trial
     court’s order and remanded the matter for a hearing to
     determine whether Appellant’s claims were time-barred. See
     Commonwealth v. Allen, 881 A.2d 877 (Pa. Super. 2005)
     (unpublished memorandum). Counsel was appointed, and a
     hearing was held on November 6, 2006. The trial court again
     denied Appellant’s petition on December 20, 2006.

           Appellant filed a timely appeal through counsel on January
     11, 2007. This appeal was docketed as 153 WDA 2007. In
     addition, Appellant filed a pro se notice of appeal on January 15,
     2007.    This appeal was docketed as 178 WDA 2007.             On
     February 13, 2007, this Court dismissed the appeal docketed at
     178 WDA 2007, as it was duplicative of the appeal docketed at
     153 WDA 2007.

            Before we disposed of the appeal docketed at 153 WDA
     2007, Appellant filed a pro se PCRA petition on October 27,
     2007.      The PCRA court denied this petition (for lack of
     jurisdiction, due to Appellant’s appeal pending at 153 WDA
     2007) on March 4, 2008. Appellant filed a notice of appeal on
     March 27, 2008. This appeal was docketed as 1116 WDA 2008;
     subsequently, this Court granted Appellant’s petition to
     discontinue this appeal on December 8, 2008.

           This Court affirmed the PCRA court’s order denying
     Appellant PCRA relief on April 3, 2008. See Commonwealth v.
     Allen, 954 A.2d 31 (Pa. Super. 2008) (unpublished
     memorandum).       The Pennsylvania Supreme Court denied


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      Appellant’s petition for allowance of appeal on December 2,
      2008. See Commonwealth v. Allen, 599 A.2d 705 (Pa. 2008).

             Appellant filed the instant PCRA petition on August 13,
      2012.     An amended counseled PCRA petition was filed on
      November 16, 2012. The court issued a Pa.R.Crim.P. 907 notice
      of its intent to dismiss on November 8, 2013. The PCRA court
      dismissed Appellant’s petition on January 14, 2014. Appellant
      filed a timely notice of appeal, as well as a timely concise
      statement of errors complained of on appeal pursuant to
      Pa.R.A.P. 1925(b).

Commonwealth v. Allen, No. 213 WDA 2014, unpublished memorandum

at 1-3 (Pa. Super. filed December 2, 2014) (hereinafter, “Allen”), appeal

granted, order vacated, No. 585 WAL 2014, 2016 WL 731982 (Pa. filed Feb.

24, 2016).

      It is undisputed that Appellant was a juvenile when he committed his

crime(s).    See PCRA Court Opinion, 5/1/14, at 1 (“On June 30, 1980,

Petitioner, a juvenile at the time, was sentenced to a term of life plus five to

ten years imprisonment for second degree murder and related offenses.”).

In his 2012 PCRA petition (hereinafter, “Petition”), which is the subject of

the instant appeal, Appellant asserted that he was entitled to resentencing

under Miller v. Alabama, 132 S.Ct. 2455 (2012).         The Miller Court held

that a mandatory sentence of life imprisonment without the possibility of

parole violates the Eighth Amendment when imposed on a juvenile. Despite

Appellant’s fitting Miller’s criteria (a juvenile sentenced to a mandatory life-

without-parole sentence), the PCRA court denied the Petition as untimely.

The PCRA Court found, pursuant to the Supreme Court of Pennsylvania’s

ruling in Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), that


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Appellant was not entitled to the retroactive application of the Miller

decision.

      We note that the PCRA time limitations implicate our jurisdiction and

may not be altered or disregarded in order to address the merits of a

petition.    Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007)

(stating PCRA time limitations implicate our jurisdiction and may not be

altered     or   disregarded   to   address    the   merits   of   the   petition);

Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002)

(holding the Superior Court lacks jurisdiction to reach merits of an appeal

from an untimely PCRA petition).        Under the PCRA, any petition for post-

conviction relief, including a second or subsequent one, must be filed within

one year of the date the judgment of sentence becomes final, unless one of

the exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies.         That

section states, in relevant part:

      (b) Time for filing petition.—

      (1) Any petition under this subchapter, including a second or
      subsequent petition, shall be filed within one year of the date the
      judgment becomes final, unless the petition alleges and the
      petitioner proves that:

            (i) the failure to raise the claim previously was the result
            of interference by government officials with the
            presentation of the claim in violation of the Constitution or
            laws of this Commonwealth or the Constitution or laws of
            the United States;

            (ii) the facts upon which the claim is predicated were
            unknown to the petitioner and could not have been
            ascertained by the exercise of due diligence; or



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         (iii) the right asserted is a constitutional right that was
         recognized by the Supreme Court of the United States or
         the Supreme Court of Pennsylvania after the time period
         provided in this section and has been held by that court to
         apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).     Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

      In Allen, Appellant asserted that the PCRA court had erred when it

denied the Petition as untimely, arguing that his Miller claim satisfied the

retroactivity exception to the PCRA’s timeliness requirements as set forth in

Section 9545(b)(1)(iii). Nevertheless, we affirmed the PCRA court’s denial

of Appellant’s petition, reasoning:

      [T]he Court’s holding in Miller did not reach the question of
      whether its ruling applied retroactively.

           Subsequently, the Pennsylvania Supreme Court addressed
      the issue of the retroactive application of Miller in []
      Cunningham[]. The Cunningham Court noted:

         Teague v. Lane, 489 U.S. 288, [] (1989) (plurality),
         delineated a general rule of non-retroactivity for new
         procedural, constitutional rules announced by the Court …
         subject to two narrow exceptions…. As relevant here, the
         exceptions extend to “rules prohibiting a certain category
         of punishment for a class of defendants because of their
         status or offense,” and “watershed rules of criminal
         procedure implicating the fundamental fairness and
         accuracy of the criminal proceeding.”

      Cunningham, 81 A.3d at 4. The Court then held that Miller did
      not “categorically bar a penalty for a class of offenders,” and,
      therefore, Miller was not retroactive pursuant to the first
      Teague exception. Id. at 10. The Court specifically declined to
      determine whether Miller was retroactive pursuant to the
      second Teague exception (i.e., that Miller constituted a

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      “watershed ruling of criminal procedure”), as the Appellant Miller
      had not raised that claim. Id.

            Neither the United States Supreme Court, nor the
      Supreme Court of Pennsylvania, has held that the right
      recognized by the Supreme Court in Miller applies retroactively.
      We are thus constrained to conclude that Appellant has failed to
      plead and prove the exception to the PCRA time bar set forth in
      section 9545(b)(1)(iii).

Allen, at 5-7.

      Following our ruling in Allen, Appellant petitioned our Supreme Court

for allowance of appeal.      On May 1, 2015, our Supreme Court held

Appellant’s petition pending the outcome of Montgomery v. Louisiana,

136 S.Ct. 718 (2016). Montgomery was decided on January 25, 2016. In

Montgomery, the Supreme Court of the United States held that Miller

announced a new substantive constitutional rule that must be applied

retroactively on state collateral review. Montgomery, 136 S.Ct. at 736.

      Consequently, by order dated February 24, 2016, our Supreme Court

simultaneously granted Appellant’s petition for allowance of appeal and

reversed Allen. That order stated, in pertinent part:

             AND NOW, this 24th day of February, 2016, The Petition
      for Allowance of Appeal is GRANTED on the issue of whether
      Petitioner’s sentence violates the prohibition against mandatory
      life sentences for juvenile offenders announced by the Supreme
      Court of the United States in Miller v. Alabama, 567 U.S. ___,
      132 S. Ct. 2455 (2012). As a result of the recent holding by that
      Court that Miller must be applied retroactively by the States,
      see Montgomery v. Louisiana, 2016 WL 280758 (U.S. Jan.
      25, 2016), the Superior Court’s order is VACATED, and the case
      is REMANDED for further proceedings consistent with
      Montgomery.

           To the extent necessary, leave is to be granted to amend
      the post-conviction petition to assert the jurisdictional provision

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J-S72011-14


        of the Post Conviction Relief Act extending to the recognition of
        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).

Order, 2/24/16, at 1 (single page).

        Thus, we have been directed by our Supreme Court to reconsider our

decision in Allen in light of Montgomery. In that regard, we are guided by

this Court’s recent decision in Commonwealth v. Secreti, --- A.3d ---,

2016 PA Super 28, 2016 WL 513341 (Pa. Super. filed February 9, 2016).

Secreti dealt with an identically situated PCRA petitioner, in the sense that

he had filed an untimely PCRA petition seeking to invoke Miller to satisfy the

PCRA’s timeliness exception set forth in 42 Pa.C.S. § 9545(b)(1)(iii), but had

filed his petition before the Montgomery ruling.               However, unlike our

decision in Allen, Montgomery was decided while the decision in Secreti

was still pending.    In Secreti, this 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. The date of the Montgomery

decision (January 25, 2016, as revised on January 27, 2016) will control for

purposes of the 60–day rule in Section 9545(b)(2).”              Secreti, 2016 WL

513341 at *6.        Accordingly, the Secreti Court reversed the PCRA court

order    denying   relief,   vacated   Secreti’s   sentence,   and   remanded   for

resentencing. Id.

        Instantly, Appellant is clearly entitled to the retroactive application of

Miller, as was afforded in Secreti and required under Montgomery.



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J-S72011-14



Accordingly, we reverse the PCRA court’s order denying relief under Miller,

and remand for resentencing.1

       Order    reversed.         Remanded       for   resentencing.   Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/2016




____________________________________________


1
   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.



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