J-S04026-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SCOTT WALKER,
Appellant No. 317 WDA 2015
Appeal from the PCRA Order of January 27, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0009861-1994
BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED MARCH 1, 2016
Appellant, Scott Walker, appeals from an order entered on January 27,
2015 in the Criminal Division of the Court of Common Pleas of Allegheny
County that denied his petition filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We vacate the order entered by
the PCRA court and remand for further proceedings consistent with this
memorandum.
The factual and procedural history in this case is undisputed. On July
24, 1994, Appellant, then 15 years of age, fatally shot Randy Hawkins in
retaliation for a prior assault. The Commonwealth subsequently charged
Appellant with one count of criminal homicide, 18 Pa.C.S.A. § 2501. On May
11, 1995, a jury found Appellant guilty of first-degree murder and on June
26, 1995, the court sentenced Appellant to a mandatory term of life
imprisonment without the possibility of parole. We affirmed Appellant’s
*Retired Senior Judge assigned to the Superior Court.
J-S04026-15
judgment of sentence on June 4, 1996 and our Supreme Court denied
further review on October 22, 1996. Commonwealth v. Walker, 683 A.2d
315 (Pa. Super. 1996) (unpublished memorandum), appeal denied, 685
A.2d 545 (Pa. 1996).
In the ensuing years, Appellant filed unsuccessful petitions for
collateral relief in 2000, 2004, 2008, and 2010. On June 25, 2012, the
United States Supreme Court issued its decision in Miller v. Alabama, 132
S.Ct. 2455 (U.S. 2012), concluding that mandatory sentences of life without
parole violated the Eighth Amendment of the United States Constitution
when imposed upon juvenile homicide defendants. Thereafter, on July 6,
2012, Appellant filed this, his fifth, petition for collateral relief alleging that
his sentence was unconstitutional under Miller because he was 15 years of
age when he killed Hawkins. The PCRA court appointed counsel and stayed
the proceedings pending resolution of certain cases by the Pennsylvania
Supreme Court.
On October 30, 2013, the Pennsylvania Supreme Court decided
Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), holding (under an
analysis based upon federal law) that Miller did not apply retroactively to
cases like Appellant’s in which the judgment of sentence had already
become final. On November 1, 2013, the Commonwealth filed an answer
seeking the dismissal of Appellant’s petition. On November 6, 2013, counsel
for Appellant again moved to stay the proceedings pending the United States
-2-
J-S04026-15
Supreme Court’s disposition of a writ of certiorari filed in the Cunningham
case.
On March 11, 2014, the PCRA court entered an order that lifted its
stay of the instant proceedings and gave notice of its intent to dismiss
Appellant’s petition without a hearing. The court explained that Appellant’s
petition was untimely. On April 10, 2014, Appellant filed a timely response
to the court’s Rule 907 notice and requested leave to file an amended PCRA
petition. The United States Supreme Court denied certiorari in
Cunningham on June 9, 2014 and, on January 27, 2015, the PCRA court
entered a final order dismissing Appellant’s PCRA petition. Appellant filed a
timely notice of appeal on February 25, 2015. After receiving an extension,
Appellant filed a timely, court-ordered concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). The PCRA court
issued its Rule 1925(a) opinion on June 12, 2015.
Appellant raises the following questions for our review:
Whether the PCRA court violated Appellant’s rights under the
Eighth Amendment when Appellant continues to serve a life
sentence without the possibility of parole which was imposed
when Appellant was a juvenile?
Whether Appellant’s right under Article I, Section 13 of the
Pennsylvania Constitution was violated and whether
Pennsylvania law allows for the retroactivity of Miller?
Whether the PCRA court violated Rule 905(A) of the
Pennsylvania Rules of Criminal Procedure by failing to grant
Appellant’s motion to amend the PCRA petition?
-3-
J-S04026-15
Whether Appellant was entitled to habeas corpus relief when
Appellant continues to serve a life sentence without the
possibility of parole which was imposed when Appellant was a
juvenile?
Appellant’s Brief at 4.1
The gravamen of Appellant’s complaint on appeal is that his
mandatory sentence of life imprisonment without the possibility of parole
violates his rights under the Eighth Amendment of the United States
Constitution and Article I, Section 13 of the Pennsylvania Constitution
because it was imposed for a homicide he committed as a juvenile.
Appellant asserts that he is entitled to relief under the PCRA because the
United States Supreme Court’s decision in Miller rendered his petition timely
filed under the exception for newly-recognized constitutional rights. See 42
Pa.C.S.A. § 9545(b)(1)(iii). Accordingly, Appellant argues that the PCRA
court erred in dismissing his petition as untimely.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA court is
supported by evidence of record and is free of legal error. Commonwealth
v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will
not be disturbed unless there is no support for the findings in the certified
record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
____________________________________________
1
We have re-ordered the sequence of Appellant’s claims to facilitate our
analysis.
-4-
J-S04026-15
We apply a de novo standard of review and a plenary scope of review to
challenges involving questions of law. Commonwealth v. Rykard, 55 A.3d
117, 1183-1184 (Pa. super. 2012), appeal denied, 64 A.3d 631 (Pa. 2013).
The timeliness of a PCRA petition is a jurisdictional prerequisite. See
Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2003). A petition
seeking relief under the PCRA, including a second or subsequent petition,
must be filed within one year of the date the judgment is final unless the
petition alleges, and the petitioner proves, that an exception to the time for
filing the petition, set forth at 42 Pa.C.S.A. § 9545(b)(1)(i), (ii), and (iii), is
met.2 See Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 783 (Pa.
2000). A PCRA petition invoking one of the statutory exceptions must “be
____________________________________________
2
The exceptions to the PCRA’s 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.A. § 9545(b)(1)(i), (ii), and (iii).
-5-
J-S04026-15
filed within 60 days of the date the claims could have been presented.” Id.;
42 Pa.C.S.A. § 9545(b)(2).
Appellant’s judgment of sentence became final on January 21, 1997,
90 days after our Supreme Court denied further review and the time for
filing a petition for writ of certiorari with the United States Supreme Court
expired. See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup. Ct. R. 13. Appellant had
to file a PCRA petition on or before January 21, 1998 in order for the petition
to be timely filed. Appellant filed the instant petition on July 6, 2012; hence,
the petition is patently untimely unless Appellant pleads and proves an
exception to the PCRA’s time bar.
Appellant claims that his petition is timely under the newly-recognized
constitutional rights exception set forth at 42 Pa.C.S.A. § 9545(b)(1)(iii). To
properly invoke this exception, Appellant must show that he filed his petition
within 60 days of the date on which the court filed the new decision.
Commonwealth v. Baldwin, 789 A.2d 728, 731 (Pa. Super. 2001), appeal
denied, 863 A.2d 1141 (Pa. 2004). Here, Appellant satisfied the 60-day
prerequisite since he filed his petition on July 6, 2012 and the United States
Supreme Court issued its decision in Miller June 25, 2012.
We turn now to consider whether Appellant has advanced a valid claim
asserting a newly-recognized constitutional right, as that phrase is used in
§ 9545(b)(1)(iii). In Commonwealth v. Abdul-Salaam, 812 A.2d 497 (Pa.
2001), our Supreme Court explained that a petitioner seeking to invoke
-6-
J-S04026-15
§ 9545(b)(1)(iii) must plead and prove two elements: (1) the right asserted
must be a constitutional right that was recognized by the Supreme Court of
the United States or the Supreme Court of Pennsylvania after the expiration
of the time for filing a petition set forth in § 9545, and (2) that Court must
have held that that the right is to apply retroactively. Abdul-Salaam, 812
A.2d at 501.
Recently, the United States Supreme Court issued its decision in
Montgomery v. Louisiana, 135 S.Ct. 1546 (2016). Montgomery held
that Miller applies retroactively to cases pending on collateral review
wherein the judgment of sentence has already become final. In view of
Montgomery, we conclude that Appellant has properly invoked the
newly-recognized constitutional rights exception found in § 9545(b)(1)(iii)
and that Appellant’s petition is timely.3 Accordingly, we vacate the order
____________________________________________
3
Our Supreme Court recently recognized that Montgomery requires
retroactive application of Miller. See Commonwealth v. Freeman, 200
MAL 2015 (February 11, 2016) (per curiam order) (“Miller must be applied
retroactively” and “[petitioners are to be granted leave, to the extent
necessary,] to amend the post-conviction petition to assert the jurisdictional
provision of the [PCRA] extending to the recognition of constitutional rights
by the Supreme Court of the United States which it deems to be
retroactive.”); Commonwealth v. Goudy, 235 MAL 2015 (February 11,
2016) (per curiam order) (same); Commonwealth v. Phillips, 678 MAL
2015 (February 11, 2016) (per curiam order) (same). These developments
alleviate any concern with the requirement expressed in Abdul-Salaam
that, “[a] ruling concerning the retroactive application of [a] new
constitutional right must be made prior to the filing of the petition for
collateral relief.” Abdul-Salaam, 812 A.2d at 501-502. In addition, we
(Footnote Continued Next Page)
-7-
J-S04026-15
dismissing Appellant’s petition, vacate the judgment of sentence, and
remand this matter for re-sentencing under 18 Pa. C.S.A. § 1102.1
(sentence of persons under the age of 18 for murder). See
Commonwealth v. Secreti, ___ A.3d ___, 2016 WL 513341, *6 (Pa.
Super. 2016); see also Commonwealth v. Batts, 66 A.3d 286, 295-297
(Pa. 2013) (identifying factors to be considered in sentencing juvenile
homicide defendants).
Order vacated. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/1/2016
_______________________
(Footnote Continued)
need not address Appellant’s claims concerning the amendment of his
petition or his eligibility for habeas corpus relief.
-8-