J-S11043-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                    Appellee                :
                                            :
             v.                             :
                                            :
EDWARD CRUZ GOUDY,                          :
                                            :
                    Appellant               :            No. 260 MDA 2014

                   Appeal from the PCRA Order January 13, 2014
                  in the Court of Common Pleas of Berks County,
                  Criminal Division, No. CP-06-CR-0005138-2001

BEFORE: PANELLA, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED MARCH 24, 2016

        Edward Cruz Goudy (“Goudy”) appeals from the Order dismissing his

first Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We reverse the Order, vacate

Goudy’s judgment of sentence, and remand for resentencing.

        In 2003, Goudy was convicted of murder of the second degree,

recklessly endangering another person, robbery, and criminal conspiracy.1

Goudy was 15 years old at the time of the crime. The trial court sentenced

Goudy to life in prison without the possibility of parole.

        This Court affirmed the judgment of sentence. See Commonwealth

v. Goudy, 855 A.2d 131 (Pa. Super. 2004) (unpublished memorandum).

Goudy did not seek further review.



1
    18 Pa.C.S.A. §§ 2502(b), 2705, 3701, 903.
J-S11043-15


     Goudy filed his first PCRA Petition, pro se, within sixty days of the

filing of the United States Supreme Court’s decision in Miller v. Alabama,

132 S. Ct. 2455 (2012).2   The PCRA court appointed Goudy counsel, who

filed an Amended PCRA Petition. The PCRA court issued a Notice of Intent to

Dismiss, and subsequently dismissed the Petition.    Goudy filed a timely

Notice of Appeal and a Pennsylvania Rule of Appellate Procedure 1925(b)

Concise Statement of Matters Complained of on Appeal.

     This panel affirmed the PCRA court’s dismissal based on the

untimeliness of the Petition,3 and Goudy’s failure to properly invoke a

timeliness exception under the PCRA.4    See Commonwealth v. Goudy,

120 A.3d 394 (Pa. Super. 2015) (unpublished memorandum at 3-5).        Our


2
   In Miller, the Supreme Court held that sentencing schemes, which
mandate life in prison without parole for defendants, who committed their
crimes while under the age of eighteen, violates the Eighth Amendment’s
prohibition on “cruel and unusual punishments.” Miller, 132 S. Ct. at 2460.
The Supreme Court reasoned that, in light of a juvenile’s diminished
culpability and heightened capacity for change, mandatory juvenile
sentencing schemes pose too great a risk of disproportionate punishment, in
contravention of the Eighth Amendment. Id. at 2469.
3
  Under the PCRA, any PCRA petition “shall be filed within one year of the
date the judgment becomes final[.]”        42 Pa.C.S.A. § 9545(b)(1).    A
judgment of sentence becomes final “at the conclusion of direct review,
including discretionary review in the Supreme Court of Pennsylvania, or at
the expiration of time for seeking the review.” Id. § 9545(b)(3). Here,
Goudy’s Petition was facially untimely under the PCRA.
4
 Pennsylvania courts may consider an untimely petition if the appellant can
explicitly plead and prove one of three exceptions set forth under 42
Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any PCRA petition invoking one of these
exceptions “shall be filed within 60 days of the date the claim could have
been presented.” Id. § 9545(b)(2).


                                -2-
J-S11043-15


panel was constrained to conclude that the Miller decision did not invoke

the newly recognized constitutional right exception codified at 42 Pa.C.S.A.

§ 9545(b)(1)(iii),   based   upon   our   Supreme     Court’s   decision   in

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013).5              Goudy, 120

A.3d 394 (unpublished memorandum at 4-5).

      Goudy filed a Petition for Allowance of Appeal. On February 11, 2016,

our Supreme Court granted the Petition, vacated this Court’s decision, and

remanded for further proceedings based upon the United States Supreme

Court’s decision in Montgomery v. Louisiana, 136 S. Ct. 718 (2016). See

Commonwealth v. Goudy, 2016 WL 594085, *1 (Pa. 2016).

      In Montgomery, the United States Supreme Court held that its

decision in Miller, supra, applies retroactively. Montgomery, 136 S. Ct. at

736. Following the Montgomery decision, this Court issued its Opinion in

Commonwealth v. Secreti, 2016 PA Super 28 (Pa. Super. 2016), which

held that where, like here, a PCRA petitioner properly raised a Miller claim

within sixty days of that decision, Miller applies retroactively; the

petitioner’s sentence is unconstitutional under Miller; and the petitioner is

entitled to a new sentencing hearing in accordance with Commonwealth v.




5
  In Cunningham, the Pennsylvania Supreme Court ruled that Miller does
not apply retroactively to juveniles in Pennsylvania whose judgments of
sentence were final at the time Miller was decided. Cunningham, 81 A.3d
at 11.


                                 -3-
J-S11043-15


Batts, 66 A.3d 286, 296 (Pa. 2013).6 Secreti, 2016 PA Super 28, **4-6.

      Based upon Montgomery and Secreti, we conclude that (1) Goudy

satisfied the timeliness exception at 42 Pa.C.S.A. § 9545(b)(1)(iii), and that

Miller applies retroactively to his sentence; (2) Goudy’s sentence is

unconstitutional under Miller; and (3) Goudy is entitled to a new sentencing

hearing. Accordingly, we reverse the PCRA court’s Order dismissing Goudy’s

Petition, vacate Goudy’s judgment of sentence, and we remand for

resentencing in accordance with Batts, supra.

      Order reversed. Judgment of sentence vacated. Case remanded for

resentencing. Jurisdiction relinquished.


6
  “Miller requires only that there be judicial consideration of the appropriate
age-related factors set forth in that decision prior to the imposition of a
sentence of life imprisonment without the possibility of parole on a juvenile.”
Batts, 66 A.3d at 296.

      [A]t a minimum [the trial 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 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.

Id. at 297. “[T]he imposition of a minimum sentence taking such factors
into account is the most appropriate remedy for the federal constitutional
violation that occurred when a life-without-parole sentence was mandatorily
applied to [the a]ppellant.” Id.; see also Montgomery, 136 S. Ct. at 736
(stating that “[a]llowing those offenders to be considered for parole
ensures that juveniles whose crimes reflected only transient immaturity—
and who have since matured—will not be forced to serve a disproportionate
sentence in violation of the Eighth Amendment.”) (emphasis added).


                                   -4-
J-S11043-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/24/2016




                          -5-
