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                                   2016 PA Super 28

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JUSTIN SECRETI

                            Appellant                   No. 578 WDA 2015


                 Appeal from the PCRA Order December 1, 2014
              In the Court of Common Pleas of Washington County
              Criminal Division at No(s): CP-63-MD-0001637-1994


BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*

OPINION BY GANTMAN, P.J.:                             FILED FEBRUARY 9, 2016

        Appellant, Justin Secreti, appeals from the order entered in the

Washington County Court of Common Pleas, which denied his serial petition

brought pursuant to the Post Conviction Relief Act (“PCRA”).1       We reverse

the PCRA court’s order, vacate Appellant’s judgment of sentence, and

remand for resentencing.

        The relevant facts and procedural history of this appeal are as follows.

Appellant was born on June 23, 1977. On August 22, 1993, when he was

sixteen years old, Appellant and two co-defendants committed a home

invasion, and then robbed and murdered the victims (husband and wife) in

____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.


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*Former Justice specially assigned to the Superior Court.
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their home. Appellant pled guilty on November 1, 1995, to two counts each

of first-degree murder, aggravated assault, and robbery, and one count each

of burglary, theft by unlawful taking or disposition, receiving stolen property,

and criminal conspiracy. On January 5, 1996, the court sentenced Appellant

to automatic life imprisonment without the possibility of parole on each

murder offense, to be served concurrently, with no further penalties on the

remaining offenses. Appellant did not file a direct appeal.

      Appellant timely filed his first PCRA petition pro se on January 3, 1997.

The PCRA court appointed counsel, who filed an amended petition. On April

9, 1999, the PCRA court conducted a hearing on Appellant’s amended

petition, which the court denied on June 18, 1999. This Court affirmed, and

our Supreme Court denied allowance of appeal on April 3, 2001.             See

Commonwealth v. Secreti, 760 A.2d 433 (Pa.Super. 2000), appeal

denied, 565 Pa. 642, 771 A.2d 1282 (2001). Appellant filed a second PCRA

petition pro se on April 29, 2005, which the PCRA court ultimately denied on

February 21, 2006.     This Court affirmed, and our Supreme Court denied

allowance of appeal on February 28, 2007.           See Commonwealth v.

Secreti, 913 A.2d 947 (Pa.Super. 2006), appeal denied, 591 Pa. 700, 918

A.2d 745 (2007).

      Appellant filed his current PCRA petition pro se on August 15, 2012,

asserting a new constitutional right under the United States Supreme Court’s

recent decision in Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 183


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L.Ed.2d   407   (2012),     as   an   exception   to   the   statutory   timeliness

requirements.    The PCRA court appointed counsel, who filed an amended

petition on July 2, 2013, and a second amended petition on January 6, 2014.

The PCRA court issued, on September 10, 2014, notice of its intent to

dismiss Appellant’s petition without a hearing, pursuant to Pa.R.Crim.P. 907,

based on our state Supreme Court decision in Commonwealth v.

Cunningham, 622 Pa. 543, 81 A.3d 1 (2013) (holding Miller’s prohibition

against mechanical mandatory life imprisonment without possibility of parole

(“LWOP”) sentences for juvenile offenders was not available on collateral

review). The PCRA court denied Appellant’s petition on December 1, 2014.

Thereafter, counsel filed a petition to withdraw, which the PCRA court

granted on January 22, 2015. Appellant subsequently filed, on February 3,

2015, a pro se petition objecting to counsel’s withdrawal and seeking

reinstatement of his appellate rights nunc pro tunc. On March 24, 2015, the

PCRA court vacated its order permitting counsel to withdraw and reinstated

Appellant’s right to appeal nunc pro tunc. Appellant timely filed a notice of

appeal on April 7, 2015.

      Appellant raises the following issue for our review:

          DID THE [PCRA] COURT ERR WHEN IT DENIED
          [APPELLANT’S] PCRA PETITION, AS HE CURRENTLY
          SERVES A SENTENCE THE SUPREME COURT OF THE
          UNITED STATES DEEMED UNCONSTITUTIONALLY CRUEL
          AND UNUSUAL, AND WHOSE PROHIBITION MUST BE
          APPLIED RETROACTIVELY?

(Appellant’s Brief at 4).

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     Appellant argues the Miller decision held that an automatic mandatory

LWOP sentence, for those who are under the age of eighteen at the time of

their crimes, violated the Eighth Amendment’s prohibition on cruel and

unusual punishment.       Appellant claims Miller created a new constitutional

rule of law, which the Supreme Court intended to apply retroactively to

cases on collateral review. To support this contention, Appellant asserts the

Supreme Court applied this new rule in Miller to its companion case,

Jackson v. Hobbs, ___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012),

which was decided at the same time. Appellant contends the Supreme Court

made no distinction between the Miller and Jackson cases, regarding

application of the new rule, which were on direct and collateral review,

respectively. Appellant claims Miller imposed a categorical bar to automatic

mandatory LWOP sentences for juveniles. Appellant maintains that Miller’s

ban on uncompromising sentences for a specific class of persons constitutes

substantive law that compels retroactivity of Miller on collateral review.

Appellant concludes this Court should reverse the PCRA court’s order

denying   relief,    vacate   his   judgment      of   sentence,    and   remand      for

resentencing. For the following reasons, we agree.

     Our standard of review of the denial of a PCRA petition is limited to

examining    whether      the   evidence     of    record    supports     the     court’s

determination       and   whether    its    decision    is   free   of    legal    error.

Commonwealth v. Lane, 81 A.3d 974 (Pa.Super. 2013), appeal denied,


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625 Pa. 658, 92 A.3d 811 (2014). This Court grants great deference to the

findings of the PCRA court if the record contains any support for those

findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal

denied, 593 Pa. 754, 932 A.2d 74 (2007).        We give no such deference,

however, to the court’s legal conclusions.     Commonwealth v. Ford, 44

A.3d 1190, 1194 (Pa.Super. 2012).

      Initially, we examine whether Appellant timely filed his current PCRA

petition.   Commonwealth v. Harris, 972 A.2d 1196 (Pa.Super. 2009),

appeal denied, 603 Pa. 684, 982 A.2d 1227 (2009).           Pennsylvania law

makes clear no court has jurisdiction to hear an untimely PCRA petition.

Commonwealth v. Robinson, 575 Pa. 500, 837 A.2d 1157 (2003). The

most recent amendments to the PCRA, effective January 16, 1996, provide

that a PCRA petition, including a second or subsequent petition, shall be filed

within one year of the date the underlying judgment becomes final.          42

Pa.C.S.A. § 9545(b)(1); Commonwealth v. Bretz, 830 A.2d 1273

(Pa.Super. 2003). A judgment is deemed 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.” 42 Pa.C.S.A. § 9545(b)(3).

      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused.   42 Pa.C.S.A. § 9545(b)(1).     To invoke an exception, a


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petition must allege and the petitioner must prove:

         (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.A. § 9545(b)(1)(i)-(iii).    Additionally, a petitioner asserting a

timeliness exception must file a petition within sixty (60) days of the date

the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2). “As such,

when a PCRA petition is not filed within one year of the expiration of direct

review, or not eligible for one of the three limited exceptions, or entitled to

one of the exceptions, but not filed within 60 days of the date that the claim

could have been first brought, the trial court has no power to address the

substantive merits of a petitioner’s PCRA claims.”       Commonwealth v.

Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783 (2000).

      When the exception asserted is Section 9545(b)(1)(iii), the 60-day

rule runs from the date of the germane decision.         Commonwealth v.

Chambers, 35 A.3d. 34 (Pa.Super. 2011), appeal denied, 616 Pa. 625, 46

A.3d 715 (2012). Subsection (iii) of Section 9545 requires a petitioner to


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prove “there is a ‘new’ constitutional right and that the right ‘has been held’

by ‘that court’ to apply retroactively.” Commonwealth v. Abdul-Salaam,

571 Pa. 219, 226, 812 A.2d 497, 501 (2002). “[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.” Id. at 228, 812 A.2d at

502 (emphasis added). A mere clarification of existing law, however, does

not constitute a new set of rules. Id. at 229, 812 A.2d at 503.

      In Miller, the United States Supreme Court said: “[C]hildren are

constitutionally different from adults for sentencing purposes.”         Miller,

supra at ___, 132 S.Ct. at 2458, 183 L.Ed.2d at ___.         The Miller Court

recognized these differences lead to a “diminished culpability and greater

prospects for reform” for juvenile offenders.   Montgomery v. Louisiana,

___ U.S. ___, 2016 WL 280758 *12 (filed January 25, 2016, as revised on

January 27, 2016) (quoting Miller, supra at ___, 132 S.Ct. at 2464, 183

L.Ed.2d at ___).

         First, children have a “lack of maturity and an
         underdeveloped sense of responsibility,” leading to
         recklessness, impulsivity, and heedless risk-taking.
         Second, children “are more vulnerable to negative
         influences and outside pressures,” including from their
         family and peers; they have limited “control over their own
         environment” and lack the ability to extricate themselves
         from horrific, crime-producing settings. And third, a child’s
         character is not as “well formed” as an adult’s; his traits
         are “less fixed” and his actions less likely to be “evidence
         of irretrievable depravity.”

Montgomery, supra (quoting Miller, supra). “‘[T]he distinctive attributes


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of youth diminish the penological justifications’ for imposing [LWOP] on

juvenile offenders[.]” Montgomery , supra (quoting Miller, supra at ___,

132 S.Ct. at 2465, 183 L.Ed.2d at ___). “These considerations underlay the

Court’s holding in Miller that mandatory [LWOP] sentences for children

‘pos[e] too great a risk of disproportionate punishment.’”      Montgomery,

supra at *13 (quoting Miller, supra at ___, 132 S.Ct. at 2469, 183 L.Ed.2d

at ___).

       Moreover, “[a] substantive rule…forbids criminal punishment of certain

primary conduct or prohibits a certain category of punishment for a class of

defendants because of their status or offense.”       Montgomery, supra at

*11.

           Because Miller determined that sentencing a child to
           [LWOP] is excessive for all but “the rare juvenile offender
           whose crime reflects irreparable corruption,” it rendered
           [LWOP] an unconstitutional penalty for “a class of
           defendants because of their status”—that is, juvenile
           offenders whose crimes reflect the transient immaturity of
           youth. As a result, Miller announced a substantive rule of
           constitutional law. Like other substantive rules, Miller is
           retroactive because it “necessarily carr[ies] 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 *13 (internal citations and some quotation marks omitted).         Thus,

Miller retroactively applies to cases on collateral review. Id. at *11.

       Additionally, giving Miller retroactive effect does not require or overly

burden the states to retry every case where a juvenile offender received

mandatory LWOP. Id. at *16. “Miller requires only that there be judicial

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consideration of the appropriate age-related factors set forth in that decision

prior   to    the   imposition   of   a   sentence   of   [LWOP]   on   a   juvenile.”

Commonwealth v. Batts, 620 Pa. 115, 131-32, 66 A.3d 286, 296 (2013)

(citing Miller, supra at ___, 132 S.Ct. at 2467-68, 183 L.Ed.2d at ___).

             [A]t a minimum [the 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.

Batts, supra at 133, 66 A.3d at 297 (quoting Commonwealth v. Knox, 50

A.3d 732, 745 (Pa.Super. 2012)) (citation omitted). Thus, “the imposition of

a minimum sentence taking such factors into account is the most

appropriate remedy for the federal constitutional violation that occurred

when a [LWOP] sentence was mandatorily applied to [a]ppellant.”                Batts,

supra. Furthermore, “[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.”            Montgomery, supra at

*16.     In sum, Montgomery has clarified Miller with regard to its

substantive law and retroactivity. Consequently, we must also conclude that

Cunningham, supra no longer controls in this context. We now turn our

attention to the implications arising from Abdul-Salaam, supra at 228, 812

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A.2d at 502 (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. Here, Appellant filed his

current petition within 60 days of the Miller decision and asserted Miller’s

substantive law as an exception to the PCRA timeliness requirements under

subsection (b)(1)(iii).    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 and include petitions filed later than 60 days after Miller.

      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.            Because the

Montgomery decision was needed to clarify Miller, however, we will use

the date of the Montgomery decision solely to measure the 60-day rule of

Section 9545(b)(2) (requiring petitioner asserting timeliness exception to file

petition within 60 days of date claim could have been presented); Gamboa-


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Taylor, supra.      In all other respects, Miller remains the lodestar for

substantive constitutional law on this subject such that the retroactivity

determination will be deemed to have existed at the time the pending

petitions were filed.     Thus, we harmonize the PCRA requirements with

Montgomery, Miller, and Abdul-Salaam and simultaneously achieve the

justice this law was designed to promote.

      Based on the foregoing, we hold 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). Accordingly, we reverse the PCRA court’s

order,   vacate   Appellant’s   judgment      of   sentence,   and    remand     for

resentencing in accord with Batts, supra.

      Order reversed; case remanded for resentencing.                Jurisdiction is

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2016




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