J-S03019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

JEFFERY P. DEAN

                            Appellant                    No. 965 EDA 2015


                   Appeal from the PCRA Order March 4, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1009931-1974


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                                  FILED MARCH 08, 2016

       Jeffery1 P. Dean brings this pro se appeal from the order entered on

March 4, 2015, in the Court of Common Pleas of Philadelphia County, that

dismissed as untimely his serial petition seeking relief pursuant to the

Pennsylvania Post Conviction Relief Act, 42 Pa.C.S. §§ 9541—9546.           The

sole argument presented in this appeal is:         “[W]hether the U.S. Supreme

Court’s ruling in Miller v. Alabama[, 567 U.S. ___, 132 S. Ct. 2455 (2012)

(filed June 25, 2012)] applies retroactively in the State of Pennsylvania.”

Dean’s Brief at 4 (unnumbered).            Based upon the following, we reverse,

vacate the judgment of sentence, and remand for resentencing.


____________________________________________


1
  In the certified record, appellant’s first name appears as both “Jeffery” and
“Jeffrey.”
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        On January 22, 1975, Dean entered a negotiated guilty plea to charges

of murder, generally, robbery, burglary and conspiracy.2             The trial court

fixed the degree of guilt as murder of the first degree.3 Dean was sentenced

to a mandatory sentence of life imprisonment without parole on the murder

charge and sentence was suspended on the remaining charges.               No direct

appeal was filed.       Thereafter, Dean filed a petition pursuant to the Post

Conviction Hearing Act (PCHA), which was denied by the PCHA court.                On

appeal,     this   Court    affirmed     the   denial   of   post-conviction   relief.

Commonwealth v. Dean, 481 A.2d 1371 (Pa. Super. 1984) (unpublished

memorandum). On January 17, 1985, the Pennsylvania Supreme Court

denied Dean’s request for allowance of appeal. Commonwealth v. Dean,

658 E.D. Allocatur Docket 1984.            Between 2005 and 2009, Dean filed a

number of unsuccessful PCRA petitions.

        On August 15, 2011, Dean filed, pro se, the present PCRA petition. On

August 23, 2012, Dean filed an amended petition, seeking relief pursuant to

Miller, supra. In Miller, the United States Supreme Court held that it is

unconstitutional for state courts to impose an automatic life sentence

without possibility of parole upon a homicide defendant for a murder



____________________________________________


2
    18 Pa.C.S. §§ 2502, 3701, 3502, and 903, respectively.
3
    18 Pa.C.S. § 2502(a).




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committed while the defendant was a juvenile. The PCRA court dismissed

Dean’s petition, following Rule 907 notice, and this appeal followed.

      The PCRA court, in its opinion in support of its ruling, explained that it

denied PCRA relief for two reasons: (1) “[T]o date, the United States

Supreme Court has not issued a ruling declaring that Miller applies

retroactively,” and (2) “Petitioner was over 18 years old at the time of the

murder, which puts him outside the reach of the Supreme Court’s Miller

decision.” PCRA Court Opinion, 3/4/2015, at 2 (unnumbered).

       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, 977 (Pa. Super. 2013), appeal

denied, 92 A.3d 811 (Pa. 2014).         This Court gives 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, 932 A.2d 74 (Pa. 2007).               We give no such deference,

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

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

      We first address the PCRA court’s finding that Dean was over 18 at the

time of the murder, since Miller applies to “those under the age of 18 at

the time of their crimes[.]”    567 U.S. ___, 132 S. Ct. at 2460 (emphasis

added).     Here, the trial court docket, and other court documents in the

certified record, indicate Dean was born on August 8, 1957, making him 17

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years of age at the time of the commission of the September 25, 1974

murder.     See e.g., Trial Court Docket; Interview Sheet, 9/27/74; Arrest

Report (green sheet).4 As the record indicates Dean was 17 years old at the

time of the offense, we will proceed to discuss Miller.

        On January 25, 2016, while this appeal was pending, the United States

Supreme Court held in Montgomery v. Louisiana, 193 L. Ed. 2d 599, 2016

WL 280758 (U.S. 2016), that its decision in Miller applies retroactively.

Shortly after the Montgomery decision, on February 9, 2016, this Court

issued Commonwealth v. Secreti, ___ A.3d ___ [2016 PA Super 28] (Pa.

Super. 2016). There, Secreti was sentenced on January 5, 1996, to

automatic life imprisonment without possibility of parole for committing first

degree murder as a juvenile. On August 15, 2012, within 60 days of the

Miller decision, Secreti filed a PCRA petition, invoking the PCRA’s timeliness

exception for a new retroactive constitutional right, and seeking relief under

Miller. See 42 Pa.C.S. § 9545(b)(1)(iii), (b)(2).5 This Court held that (1)
____________________________________________


4
    The Commonwealth notes in its brief:

        The PCRA court opinion states that [Dean] “was over 18 years
        old at the time of the murder.” … It appears from the docket,
        however, that [Dean] was born on August 8, 1957, and he was
        arrested for the instant crimes in September of 1974. Thus, he
        was presumably seventeen years old at the time of the murder.

Commonwealth’s Brief at 6–7 n.2.
5
  Section 9545(b)(1)(iii) provides a timeliness exception where “the right
asserted is a constitutional right that was recognized by the Supreme Court
(Footnote Continued Next Page)


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Miller applied retroactively to Secreti’s sentence, and Secreti satisfied the

requirements     of     Section    9545(b)(1)(iii),   (2)   Secreti’s   sentence   was

unconstitutional under Miller, and (3) Secreti was entitled to a new

sentencing hearing in accordance with Commonwealth v. Batts, 66 A.3d

286, 296 (Pa. 2013).6

      Secreti squarely applies to this case. In 1975, following the entry of a

guilty plea, Dean was sentenced to life imprisonment without parole for first

degree murder, and sentence was suspended on the remaining charges.

Dean timely raised his Miller claim in an amended PCRA petition, filed

August 23, 2012, and his appeal from the denial of PCRA relief was pending

before   this   Court      when     the   United   States   Supreme     Court   issued

Montgomery.            Guided by Secreti, we conclude (1) Miller applies

retroactively to Dean’s sentence, and Dean has satisfied the PCRA’s

timeliness exception, 42 Pa.C.S. § 9545(b)(1)(iii), (2) Dean’s sentence is

                       _______________________
(Footnote Continued)

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)(iii).

      Section 9545(b)(2) provides: “Any petition invoking an exception
provided in paragraph (1) shall be filed within 60 days of the date the claim
could have been presented.” 42 Pa.C.S. § 9545(b)(2).
6
   In Commonwealth v. Batts, 66 A.3d 286, 296 (Pa. 2013), the
Pennsylvania Supreme Court stated, “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.”



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unconstitutional under Miller, and (3) Dean is entitled to a new sentencing

hearing.

      Accordingly, we reverse the PCRA court’s order denying relief to Dean,

we vacate Dean’s judgment of sentence, and we remand to the PCRA court

for resentencing in accordance with Batts, supra.

      Order reversed. Judgment of sentence vacated. Case remanded for

resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/8/2016




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