J-S20039-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

TERRENCE KRONK,

                          Appellant                 No. 1853 WDA 2014


                 Appeal from the PCRA Order November 6, 2013
                In the Court of Common Pleas of Fayette County
                     Criminal Division at No(s): 767 of 1976


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:              FILED: April 15, 2016

      This matter is again before this panel after remand from the Supreme

Court of Pennsylvania. On February 24, 2016, our Supreme Court granted

the petition for allowance of appeal filed by Appellant, Terrence Kronk,

vacated this Court’s May 22, 2015 order affirming the dismissal of

Appellant’s petition filed pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S. §§ 9541-9546, and remanded the case to our Court for further

proceedings consistent with the United States Supreme Court’s decision in

Montgomery v. Louisiana, ___U.S.___, 136 S.Ct. 718 (2016).                After

careful review, we reverse the PCRA court’s order dismissing Appellant’s

PCRA petition, vacate Appellant’s judgment of sentence, and remand for

resentencing.
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      On November 9, 1975, Appellant entered an open guilty plea to one

count of criminal homicide.     On October 17, 1976, the trial court found

Appellant guilty of second-degree murder and sentenced him to a mandatory

term of life imprisonment without the possibility of parole. Appellant was a

juvenile at the time he committed the murder.

      During his incarceration, Appellant filed multiple unsuccessful petitions

for writ of habeas corpus and PCRA relief.      However, on August 6, 2012,

Appellant filed a PCRA petition alleging that he was entitled to relief pursuant

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

___U.S.___, 132 S. Ct. 2455 (2012), which held that mandatory life

sentences for juvenile offenders were unconstitutional.

      A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.   Commonwealth v.

Murray, 753 A.2d 201, 203 (Pa. 2000). A judgment of sentence “becomes

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.

§ 9545(b)(3). Nevertheless, an untimely petition may be received when the

petition alleges, and the petitioner proves, that any of the three limited




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exceptions to the time for filing the petition, set forth at 42 Pa.C.S. §

9545(b)(1)(i), (ii), and (iii), is met.1

       The Supreme Court decided Miller on June 25, 2012, and Appellant

filed the instant PCRA petition forty-two days later.        See 42 Pa.C.S. §

9545(b)(2) (stating that a PCRA petition must be filed within sixty days of

the date the claim could have been presented). Appellant argued that the

decision in Miller should be retroactively applied.     On November 6, 2013,

the PCRA court dismissed Appellant’s petition, and on May 22, 2015, we

affirmed the PCRA court’s order.

       Appellant filed a petition for allowance of appeal with our Supreme

Court on May 27, 2015.          While that petition was pending, on January 25,

2016, the United States Supreme Court filed its opinion in Montgomery. In
____________________________________________


1
    The exceptions to the 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)(1)(i), (ii), and (iii) (emphasis added).




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the Montgomery decision, the United States Supreme Court held that

Miller’s prohibition on mandatory life sentences without the possibility of

parole for juvenile offenders was a new substantive rule, and it must be

applied       retroactively    in   cases   on   collateral   review    in   state   courts.

Montgomery, 136 S.Ct. at 732.               Accordingly, on February 24, 2016, the

Pennsylvania Supreme Court vacated our May 22, 2015 decision and

remanded Appellant’s appeal from the denial of PCRA relief to this Court.

        In light of the foregoing, petitioners whose PCRA petitions were based

on Miller and were on appeal at the time the United States Supreme Court

filed   its    decision   in   Montgomery are          entitled   to    relief   from   their

unconstitutional sentences.           Commonwealth v. Secreti, ___ A.3d ___,

2016 PA Super 28 (Pa. Super. 2016). Thus, in the case at bar, Appellant is

entitled to PCRA relief. Id.

        For the reasons set forth above, we reverse the PCRA court’s

November 6, 2013 order dismissing Appellant’s PCRA petition, vacate

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

accordance with Miller and Commonwealth v. Batts, 66 A.3d 286 (Pa.

2013).        On remand, the trial court shall, at a minimum, take into

consideration the following factors:

        [Appellant’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

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        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, 66 A.3d at 297 (quotation marks and citation omitted).

        Order reversed. Judgment of sentence vacated. Case remanded for

resentencing. Jurisdiction relinquished.

        Judge Wecht did not participate in the consideration or decision of this

case.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/2016




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