J-S51007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

LEWIS JEROME LEE

                        Appellant                  No. 2054 EDA 2015


                 Appeal from the PCRA Order June 9, 2015
            In the Court of Common Pleas of Delaware County
           Criminal Division at No(s): CP-23-CR-0002441-1975;
                          CP-23-CR-000342-1975


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

JUDGMENT ORDER BY GANTMAN, P.J.:                        FILED MAY 26, 2016

           Appellant, Lewis Jerome Lee, appeals from the order entered in

the Delaware County Court of Common Pleas, which denied his recent

petition filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.

§§ 9541-9546. On December 9, 1975, Appellant pled guilty as a juvenile to

murder generally (found to be felony murder—accomplice liability), robbery,

and related offenses arising from his involvement in a robbery of two off-

duty police officers on March 25, 1975.   Appellant’s cohort shot and killed

one of the officers.    Appellant was fifteen years old at the time of the

incident. On August 9, 1976, the court imposed an automatic life sentence

without the possibility of parole (“LWOP”).   Appellant’s direct appeal was

unsuccessful.   See Commonwealth v. Lee, 484 Pa. 335, 399 A.2d 104
_____________________________

*Retired Senior Judge assigned to the Superior Court.
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(1979) (affirming judgment of sentence by equally divided Court). Appellant

subsequently filed various failed petitions for collateral relief.   He filed his

most recent petition pro se on July 5, 2012, seeking relief under the United

States Supreme Court’s decision, filed on June 25, 2012, in Miller v.

Alabama, ___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).               The

PCRA court appointed counsel, who filed a no-merit letter and petition to

withdraw. The PCRA court held the matter in abeyance, pending resolution

of Commonwealth v. Cunningham, 622 Pa. 543, 81 A.3d 1 (2013).

Thereafter, the PCRA court granted counsel’s petition to withdraw and issued

Rule 907 notice on July 22, 2014. Appellant filed a pro se response, but the

court dismissed the petition on June 9, 2015. Appellant timely filed a pro se

notice of appeal on June 29, 2015, and a timely court-ordered Rule 1925(b)

statement. While the appeal was pending, the United States Supreme Court

decided Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct. 718, 193

L.Ed.2d 599 (filed 1/27/16) (holding Miller applies retroactively to cases on

collateral review).   Counsel entered an appearance for Appellant in this

Court on April 4, 2016, and filed a counseled brief on Appellant’s behalf,

raising Miller as reinvigorated by Montgomery, where Appellant was fifteen

years old at the time of the offenses and falls within the class of juvenile

offenders who can benefit from the Montogmery/Miller decisions.             See

also Commonwealth v. Secreti, 134 A.3d 77 (Pa.Super. 2016) (holding

orders denying PCRA relief in cases involving Montgomery/Miller must be


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reversed and remanded for resentencing consistent with this new rule of

substantive law and Commonwealth v. Batts, 620 Pa. 115, 131-32, 66

A.3d 286, 296 (2013)).

         [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.

Id. at 133, 66 A.3d at 297.     Taking such factors into consideration, the

imposition of a minimum sentence in all but the most egregious cases, is the

most appropriate remedy for the federal constitutional violation that occurs

when a court has mechanically and mandatorily applied a LWOP sentence on

a juvenile offender. Id.

     Here, Appellant was a fifteen-year-old juvenile when he participated in

a robbery on March 25, 1975, which resulted in one death. Appellant filed

his current PCRA petition on July 5, 2012, asserting a new constitutional

right under Miller, supra, both as an exception to the statutory timeliness

requirements and as a basis for substantive relief.        The court denied

Appellant’s petition per Cunningham, supra. In light of recent case law,

however, Cunningham no longer controls in this context.         See Secreti,

supra.   Accordingly, we reverse the PCRA court’s order denying relief,

vacate Appellant’s judgment of sentence, and remand for resentencing in

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accordance with Batts, supra. The Commonwealth concedes this resolution

is appropriate.   Due to our disposition, we deny as moot any outstanding

motion for remand.

      Order reversed; judgment of sentence vacated; case remanded for

resentencing. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2016




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