J. S71035/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
LARRY MARKLE, :
:
Appellant : No. 513 MDA 2014
Appeal from the PCRA Order February 12, 2013
In the Court of Common Pleas of York County
Criminal Division No(s): CP-67-CR-0001337-1975
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, and FITZGERALD,* JJ.
JUDGMENT ORDER BY FITZGERALD, J.: FILED FEBRUARY 19, 2016
Appellant, Larry Markle, appeals from the order dismissing as untimely
his third Post Conviction Relief Act1 (“PCRA”) petition seeking relief, in light
of Miller v. Alabama, 132 S. Ct. 2455 (2012), from a mandatory sentence
of life imprisonment without parole imposed on October 29, 1979. This
Court previously denied Appellant’s counsel petition to withdraw and directed
him to submit an amended Turner/Finley2 letter or an advocate’s brief to
address whether the retroactive application of Miller could be considered
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
J. S71035/14
outside the framework of the PCRA. Appellant’s counsel has filed an
advocate’s brief and the Commonwealth has filed a supplemental responsive
brief.
While this appeal was pending, the United States Supreme Court
decided Montgomery v. Louisana, ___ S. Ct. ___, 2016 WL 280758 (U.S.
Jan. 25, 2016), and held “that when a new substantive rule of constitutional
law controls the outcome of a case, the Constitution requires state collateral
review courts to give retroactive effect to that rule.” Montgomery, 2016
WL 280758 at *7. The Montgomery Court concluded that Miller
“announced a substantive rule of constitutional law” under Teague v. Lane,
489 U.S. 288 (1989). Id. at *15. Moreover, this Court, in Commonwealth
v. Secreti, ___ A.3d ___, 2016 WL 513341 ( Pa. Super. Feb. 9, 2016), has
recently held that Miller and Montgomery afford relief to petitioners whose
PCRA petitions seeking relief under Miller were on appeal when
Montgomery was announced.
In light of the foregoing, we reverse the order dismissing Appellant’s
PCRA petition and remand for resentencing.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2016
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