J-S44028-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RICHARD LAMONT KEMPER
Appellant No. 51 WDA 2015
Appeal from the PCRA Order entered December 18, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0008374-2001
BEFORE: LAZARUS, STABILE, and JENKINS, JJ.
JUDGMENT ORDER BY STABILE, J.: FILED MARCH 8, 2016
Appellant, Richard Lamont Kemper, appeals from the order entered on
December 18, 2014 in the Court of Common Pleas of Allegheny County,
denying as untimely his petition for collateral relief filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Appellant argues
the PCRA court erred in determining the United States Supreme Court’s
decision in Miller v. Alabama, 132 S.Ct. 2455 (2012), should not be
applied retroactively to his sentence of mandatory life without parole for a
murder committed when he was 16 years old. In light of the United States
Supreme Court’s decision in Montgomery v. Louisiana, ___ U.S. ___,
2016 WL 280758 (filed January 25, 2016, as revised on January 27, 2016),
we reverse and remand.
J-S44028-15
In the wake of Montgomery, our Supreme Court began issuing per
curiam orders on February 11, 2016, granting petitions for allowance of
appeal on the issue of whether the petitioners’ sentences violate Miller’s
prohibition against mandatory life sentences for juvenile offenders. In
granting those petitions, our Supreme Court recognized that Montgomery
directs that Miller must be applied retroactively by the States. Accordingly,
our Supreme Court has vacated the orders of this Court and remanded the
cases for further proceedings consistent with Montgomery. In each
instance, our Supreme Court ordered that, “[t]o the extent necessary, leave
is to be granted 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. See 42 Pa.C.S. § 9545(b)(1)(iii).” See, e.g.,
Commonwealth v. Cristina, 183 WAL 2015 (Pa. filed February 11, 2016)
at 1; Commonwealth v. Phelps, 678 MAL 2015 (Pa. filed February 11,
2016) at 1. In reversing and remanding Appellant’s case, we likewise grant
leave to amend the post-conviction petition, to the extent necessary, to
assert the timeliness exception of § 9545(b)(1)(iii).1
____________________________________________
1
We acknowledge this Court’s recent Opinion in Commonwealth v.
Secreti, 578 WDA 2015 (Pa. Super. filed February 9, 2016), holding that
“the best resolution . . . is to interpret Montgomery as making retroactivity
under Miller effective as of the date of the Miller decision” and announcing
that “the Miller rule of law ‘has been held’ [is] retroactive for purposes of
(Footnote Continued Next Page)
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Order reversed. Case remanded for resentencing. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/8/2016
_______________________
(Footnote Continued)
collateral review as of the date of the Miller decision on June 25, 2012 [and
t]he date of the Montgomery decision (January 25, 2016, as revised on
January 27, 2016) will control for purposes of the 60-day rule in Section
9545(b)(2).” Id. (Slip Op. at 10-11). While we agree with the objective the
Secreti panel attempts to achieve, our concern that it is at odds with the
statutory language of the PCRA, and in particular with the provisions of §
9545(b), compels us to defer to the procedure now directed by our Supreme
Court.
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