J-S23019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

VINCENT TALLEY

                            Appellant                 No. 1784 EDA 2015


                   Appeal from the PCRA Order May 18, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0610101-1999


BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                   FILED MAY 03, 2016

        Vincent Talley appeals pro se from the order entered on May 18, 2015,

in the Court of Common Pleas of Philadelphia County, that dismissed as

untimely his second petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541–9546. Talley contends 1) the PCRA court erred

by denying review on the merits of his issues on the basis that the PCRA

petition was time-barred, 2) his mandatory sentence of life imprisonment

without the possibility of parole (LWOP) violates Article I, §§ 1, 9 and 13 of

the Pennsylvania Constitution and the Eighth and Fourteenth Amendments

to the United States Constitution, and 3) his mandatory sentence of LWOP is

unconstitutional under Article I, §§ 1, 9, and 13 of the Pennsylvania
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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Constitution and the Eighth and Fourteenth Amendments to the United

States    Constitution    because      two     classes    of   prisoners   sentenced    to

mandatory LWOP are treated differently.                  Based upon Montgomery v.

Louisiana, 136 S. Ct. 718 (2016), and Commonwealth v. Secreti, ___

A.3d ___ [2016 PA Super 28] (Pa. Super. 2016), we reverse the order

entered by the PCRA court, vacate the judgment of sentence, and remand

for further proceedings consistent with this memorandum.

        On May 17, 2000, a jury convicted Talley of second degree murder, a

violation of the Uniform Firearms Act, and possessing an instrument of

crime.1 Talley was 17 years old when he committed the murder. The trial

court sentenced Talley to a mandatory term of life imprisonment without the

possibility of parole. This Court affirmed the judgment of sentence and the

Pennsylvania Supreme Court denied allowance of appeal on March 30, 2004.

Commonwealth v. Talley, 817 A.2d 1185 (Pa. Super. 2002), appeal

denied, 847 A.2d 1284 (Pa. 2004).

        Talley filed a pro se PCRA petition on December 6, 2004. Counsel was

appointed, and an amended petition was filed on October 27, 2006.                      The

PCRA court dismissed the petition on May 11, 2007.

        Talley filed the present, second, PCRA petition on July 6, 2010, raising

a claim pursuant to Graham v. Florida, 130 S. Ct. 2011 (2010). On August


____________________________________________


1
    18 Pa.C.S. §§ 2502(b), 6106, and 907, respectively.



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15, 2012, Talley amended his petition to assert a new constitutional right

recognized on June 25, 2012, in Miller v. Alabama, 132 S. Ct. 2455 (2012)

(prohibiting mandatory sentences of LWOP for juvenile offenders).         On

December 24, 2013, Talley filed a second amendment to his petition,

alternatively seeking habeas corpus relief on the basis of Miller.

      On June 18, 2014, pursuant to Pa.R.Crim.P. 907, the PCRA court filed

a notice of intent to dismiss Talley’s PCRA petition and request for habeas

corpus relief. On May 18, 2015, the PCRA court concluded that the request

for habeas corpus relief was cognizable under the PCRA, and denied the

PCRA petition as untimely based on Commonwealth v. Cunnningham, 81

A.3d 1 (Pa. 2013) (holding Miller did not create a new constitutional right

that applies retroactively).    See PCRA Court Order and Memorandum,

5/18/2015. On June 12, 2015, Talley filed this appeal.

      This Court’s standard of review regarding an order dismissing a

petition under the PCRA is whether the determination of the PCRA court is

supported by evidence of record and is free of legal error. Commonwealth

v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will

not be disturbed unless there is no support for the findings in the certified

record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).

We apply a de novo standard of review and a plenary scope of review to

challenges involving questions of law. Commonwealth v. Rykard, 55 A.3d

1177, 1183 (Pa. Super. 2012).




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        The PCRA’s time limitations implicate our jurisdiction and may not be

altered or disregarded in order to address the merits of a petition. See

Commonwealth v. Bennett, 930 A.3d 1264, 1267 (Pa. 2007). 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.2 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).

        Talley’s judgment of sentence became final in 2004. As Talley filed the

present petition in 2010, this petition is patently untimely unless he pleads

____________________________________________


2
    Specifically, the exceptions to the PCRA’s timeliness requirement are:

            (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

            (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)(i)-(iii).



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and proves an exception to the PCRA’s time bar.        Talley claims that his

petition is timely under the newly-recognized constitutional rights exception

set forth at 42 Pa.C.S. § 9545(b)(1)(iii). To properly invoke this exception,

Tallley must show that he filed his petition within 60 days of the date on

which the court filed the new decision.      42 Pa.C.S. § 9545(b)(2).    Here,

Talley satisfied the 60-day prerequisite since he filed his amended petition

on August 15, 2012, and the United States Supreme Court issued its

decision in Miller on June 25, 2012.

      Talley’s claims based on Miller implicate the holding of the United

States Supreme Court’s recent decision in Montgomery v. Louisiana, 136

S. Ct. 718 (2016), which was filed January 25, 2016, while Talley’s appeal

was pending in this Court.    In Montgomery, the United States Supreme

Court held that its decision in Miller applies retroactively in cases on

collateral review.   In view of Montgomery, we conclude that Talley has

satisfied the newly-recognized constitutional rights exception found in §

9545(b)(1)(iii).

      Accordingly, we reverse the order dismissing Talley’s petition, vacate

the judgment of sentence, and remand this matter for re-sentencing. See

Secreti, supra (holding that where a PCRA petitioner properly raised a

Miller claim within 60 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). See also Commonwealth v. Batts,




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66 A.3d 286, 295-297 (Pa. 2013) (identifying factors to be considered in

sentencing juvenile homicide defendants).

      Order reversed. Judgment of sentence vacated.   Case remanded for

further proceedings. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2016




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