J-S12010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

AQUIL TILLMAN

                            Appellant                No. 1378 EDA 2015


                   Appeal from the PCRA Order April 27, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0403711-1997


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

MEMORANDUM BY MUNDY, J.:                              FILED APRIL 11, 2016

        Appellant, Aquil Tillman, appeals pro se from the April 27, 2015 order

dismissing, as untimely, his second petition for relief filed pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful

review, we reverse the PCRA court’s order, vacate the judgment of sentence,

and remand for resentencing.1

        On August 10, 1999, the trial court imposed an aggregate sentence of

life imprisonment without the possibility of parole, after Appellant was found

guilty of one count each of first-degree murder, aggravated assault, robbery,
____________________________________________
*
    Retired Senior Judge assigned to the Superior Court.
1
  This Court initially affirmed the PCRA court’s order in a judgment order on
January 22, 2016. Appellant filed a timely application for reconsideration on
February 4, 2016. On March 8, 2016, this Court entered an order granting
panel reconsideration, and this Court’s prior judgment order was withdrawn.
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criminal conspiracy, and possession of an instrument of a crime. 2                    The

parties agree that Appellant was under 18 years of age at the time of the

offense.    Appellant’s Brief at 8; Commonwealth’s Brief at 9. This Court

affirmed Appellant’s judgment of sentence on April 16, 2001, and our

Supreme Court denied Appellant’s petition for allowance of appeal on

September 25, 2001.          Commonwealth v. Tillman, 778 A.2d 739 (Pa.

Super. 2001) (unpublished memorandum), appeal denied, 790 A.2d 1016

(Pa. 2001). As Appellant did not seek a writ of certiorari from the United

States Supreme Court, his judgment of sentence became final on December

24, 2001 when the period for filing a certiorari petition expired.               See 42

Pa.C.S.A.    § 9545(b)(3)      (stating,       “a   judgment   becomes   final   at   the

conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of time for seeking the review[]”); U.S. Sup. Ct. R. 13(1) (stating,

“[a] petition for a writ of certiorari seeking review of a judgment of a lower

state court that is subject to discretionary review by the state court of last

resort is timely when it is filed with the Clerk within 90 days after entry of

the order denying discretionary review[]”).3              Appellant filed the instant


____________________________________________
2
   18 Pa.C.S.A. §§ 2502(a), 2702(a), 3701(a), 903(a), and 907(a),
respectively.
3
 We note Appellant filed his first PCRA petition on June 11, 2003. The PCRA
court dismissed said petition on January 7, 2005. This Court affirmed on
(Footnote Continued Next Page)


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petition on June 23, 2010; as a result, it was facially untimely.               See

generally 42 Pa.C.S.A. § 9545(b)(1).              Relevant to this appeal, Appellant

amended his PCRA petition on August 17, 2012, to include a claim based on

the United States Supreme Court’s decision in Miller v. Alabama, 132 S.

Ct. 2455 (2012).

      Instantly, Appellant argues that his petition is timely under the new

constitutional right exception because the United States Supreme Court’s

decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), should be

retroactively applied.       Appellant’s Brief at 8-11.     In Miller, the Supreme

Court held the Cruel and Unusual Punishment Clause of the Federal

Constitution forbids the imposition of a mandatory sentence of life

imprisonment without the possibility of parole upon a minor, even for a

homicide. Miller, supra at 2460. On January 25, 2016, the Supreme Court

decided Montgomery v. Louisiana, 136 S. Ct. 718 (2016), which

concluded that Miller is to be applied retroactively to cases on state

collateral review. Montgomery, supra at 736.

      Given that Appellant is correct that Miller is retroactive to cases on

collateral review, we now address whether we may afford him a remedy at

this juncture.    Section 9545(b)(1)(iii) permits an exception to the PCRA

                       _______________________
(Footnote Continued)

September 16, 2005, and Appellant did not file a petition for allowance of
appeal with our Supreme Court. Commonwealth v. Tillman, 888 A.2d 12
(Pa. Super. 2005) (unpublished memorandum).



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time-bar when the petition in question alleges and proves “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.A. § 9545(b)(1)(iii) (emphasis added).           In

Commonwealth v. Abdul-Salaam, 812 A.2d 497 (Pa. 2002), our Supreme

Court held that the General Assembly’s use of the past tense in the phrase

“has been held” in Section 9545(b)(1)(iii) means that the applicable

“retroactivity determination must exist at the time that the petition is filed.”

Abdul-Salaam, supra at 502.        As noted above, Appellant’s petition was

initially filed on July 2, 2010 and amended to include Miller on July 26,

2012, but Montgomery was not decided until January 25, 2016.

      However, on February 9, 2016, this Court examined Abdul-Salaam

and held that “[t]he 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).” Commonwealth v. Secreti, --- A.3d ---, 2016 WL

513341, at *6 (Pa. Super. 2016).         The Court explained that this was

necessary to “harmonize the PCRA requirements with Montgomery, Miller,

and Abdul-Salaam and simultaneously achieve the justice this law was

designed to promote.”      Id. at *5.    Therefore, consistent with Secreti,




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Appellant’s petition was timely and Miller does apply to his case.4

Furthermore, as noted above, Appellant was given a mandatory sentence of

life imprisonment without the possibility of parole, and the Commonwealth

acknowledges that Appellant was a minor at the time of the offense.

Appellant’s Brief at 8; Commonwealth’s Brief at 9. As a result, Appellant is

entitled   to   resentencing,     consistent     with   Montgomery,   Miller,   and

Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013).5

       Based on the foregoing, we conclude Appellant’s PCRA petition was

timely filed and he is entitled to resentencing, in light of               Miller,

Montgomery and Secreti.6            Accordingly, the PCRA court’s April 27, 2015

order is reversed, the August 10, 1999 judgment of sentence is vacated, and

the case is remanded for resentencing, consistent with this memorandum.


____________________________________________
4
  In its initial brief, the Commonwealth argued that Appellant may not seek a
remand even if Miller were retroactive based on the text of Section
9545(b)(1)(iii) and our Supreme Court’s decision in Abdul-Salaam.
Commonwealth’s Brief at 8 n.1. However, in its answer to Appellant’s
petition for reconsideration, the Commonwealth conceded that resentencing
was required. Commonwealth’s Answer, 2/16/16, at 2.
5
  We note that the General Assembly passed Section 1102.1 in October 2012
to address Miller, which provides new mandatory minimum sentences for
juveniles convicted of first-degree murder. However, Section 1102.1’s text
limits its application to those “convicted after June 24, 2012[.]”     18
Pa.C.S.A. § 1102.1(a), (c).
6
  On remand, the PCRA court shall appoint counsel for Appellant, as it is
axiomatic that sentencing is a critical stage of a criminal proceeding,
requiring counsel. See generally Commonwealth v. Phillips, 93 A.3d
847, 854 (Pa. Super. 2014) (citation omitted).



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      Order reversed. Judgment of sentence vacated. Case remanded for

resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2016




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