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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VERNON STEED,
Appellant No. 1851 EDA 2015
Appeal from the PCRA Order Entered June 3, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0129931-1987
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 09, 2016
Appellant, Vernon Steed, appeals pro se from the post-conviction
court’s June 3, 2015 order denying, as untimely, his fifth petition filed under
the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. After
careful review, we reverse the PCRA court’s order, vacate Appellant’s
judgment of sentence, and remand for resentencing.
On September 8, 1985, when Appellant was 17 years old, he and his
co-defendant, Thomas Perrin shot in the direction of a man with whom
Perrin had a drug dispute. The bullets missed their intended target and
instead struck an innocent bystander, Serena Gibson, who was standing with
her family in the vicinity of the attack. Appellant and Perrin were tried by a
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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jury in 1988 and were both convicted of first-degree murder. On December
8, 1988, Appellant was sentenced to a mandatory term of life imprisonment,
without the possibility of parole (hereinafter, “LWOP”). This Court affirmed
Appellant’s judgment of sentence, and our Supreme Court denied his
subsequent petition for allowance of appeal on March 20, 1990.
Commonwealth v. Steed, 569 A.2d 1386 (Pa. Super. 1989) (unpublished
memorandum), appeal denied, 575 A.2d 112 (Pa. 1990).
Over the next 20 years, Appellant filed four petitions for post-
conviction relief, which were all denied. Appellant filed timely appeals from
each of those decisions; his first appeal was dismissed by order of this Court
for failure to file a brief, and his remaining appeals resulted in our Court’s
affirming the PCRA court’s orders denying Appellant relief. See
Commonwealth v. Steed, 849 A.2d 610 (Pa. Super. 2004) (unpublished
memorandum), appeal denied, 857 A.2d 678 (Pa. 2004); Commonwealth
v. Steed, 929 A.2d 247 (Pa. Super. 2007) (unpublished memorandum),
appeal denied, 934 A.2d 1148 (Pa. 2007); Commonwealth v. Steed, 965
A.2d 303 (Pa. Super. 2008) (unpublished memorandum), appeal denied,
969 A.2d 1180 (Pa. 2009).
On July 12, 2010, Appellant filed his fifth pro se PCRA petition, which
underlies the present appeal. For some unknown reason, the PCRA court did
not rule on Appellant’s petition. Over two years later, on August 10, 2012,
Appellant filed a pro se, amended petition, along with a “Motion for
Expedited Decision.” Therein, Appellant argued that his mandatory LWOP
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sentence was illegal under Miller v. Alabama, 132 S.Ct. 2455 (2012).
Again, the PCRA court took no action on Appellant’s amended petition. On
December 23, 2013, Appellant filed a second pro se, amended petition. It
was not until June 11, 2014, nearly four years after Appellant filed his initial
petition, that the PCRA court finally issued a Pa.R.Crim.P. 907 notice of its
intent to dismiss the petition without a hearing. Appellant filed a pro se
response on July 8, 2014. Another year passed before the PCRA court
issued an order and opinion dismissing Appellant’s petition. The court offers
no explanation in its opinion for the repeated and significant delays in ruling
on Appellant’s petition.
Appellant filed a timely, pro se notice of appeal from the order denying
his petition. The court did not order him to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal, and the court also did not issue
a Rule 1925(a) opinion. Herein, Appellant raises one issue for our review:
“Whether [] [A]ppellant is entitled to Post Conviction relief as an [sic] result
of the United States Supreme Court’s decision in Miller …, which held that
the mandatory imposition of sentences of life without the possibility of parole
on juvenile offenders convicted of murder is unconstitutional and whether
the United States Supreme Court’s precedent applies retroactively in
[A]ppellant’s case[?]” Appellant’s Brief at 4.
This Court’s standard of review regarding an order denying a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
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Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
timeliness of Appellant’s petition, because the PCRA time limitations
implicate our jurisdiction and may not be altered or disregarded in order to
address the merits of a petition. Commonwealth v. Bennett, 930 A.2d
1264, 1267 (Pa. 2007). Under the PCRA, any petition for post-conviction
relief, including a second or subsequent one, must be filed within one year of
the date on which the judgment of sentence becomes final, unless one of the
following exceptions applies:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition
alleges and the petitioner proves that:
(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)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
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Here, Appellant’s judgment of sentence became final on June 18,
1990, at the expiration of the ninety-day time-period for seeking review with
the United States Supreme Court after the Pennsylvania Supreme Court
rejected his petition for allowance of appeal. See 42 Pa.C.S. § 9545(b)(3)
(stating that a judgment of sentence becomes final at the conclusion of
direct review or the expiration of the time for seeking the review);
Commonwealth v. Owens, 718 A.2d 330, 331 (Pa. Super. 1998) (directing
that under the PCRA, petitioner’s judgment of sentence becomes final ninety
days after our Supreme Court rejects his or her petition for allowance of
appeal since petitioner had ninety additional days to seek review with the
United States Supreme Court). Thus, Appellant’s present petition, filed
twenty years after his judgment of sentence became final, is patently
untimely, and Appellant must prove that he meets one of the exceptions set
forth in 42 Pa.C.S. § 9545(b).
Here, Appellant asserts that his mandatory LWOP sentence is illegal
under Miller. With this claim, Appellant seeks to satisfy the ‘new
constitutional right’ exception of section 9545(b)(1)(iii). That subsection
requires a petitioner to prove that “there is a ‘new’ constitutional right and
that the right ‘has been held’ by ‘that court’ to apply retroactively.”
Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002). The
Abdul-Salaam Court interpreted “the language ‘has been held’ in 42
Pa.C.S. § 9545(b)(1)(iii) [to] mean[] that a retroactivity determination must
exist at the time that the petition is filed.” Id. at 502.
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In Miller, the High Court clearly established a new constitutional right
by holding that “the Eighth Amendment forbids a sentencing scheme that
mandates life in prison without possibility of parole for juvenile offenders.”
Miller, 132 S.Ct. at 2469. During the pendency of this appeal, the United
States Supreme Court issued Montgomery v. Louisiana, 136 S.Ct. 718,
735-36 (2016), holding that Miller applies retroactively.
Shortly after Montgomery was decided, this Court filed
Commonwealth v. Secreti, --- A.3d ---, 2016 PA Super 28 (Pa. Super.
filed February 9, 2016), which held that Montgomery must be interpreted
“as making retroactivity under Miller effective as of the date of the Miller
decision” so as to “satisfy the ‘has been held’ conditional language
enunciated in Abdul–Salaam, supra.” Secreti, 2016 PA Super 28, at *5.
The Secreti panel further declared that,
we will use the date of the Montgomery decision solely to
measure the 60–day rule of Section 9545(b)(2) (requiring
petitioner asserting timeliness exception to file petition within 60
days of date claim could have been presented)…. In all other
respects, Miller remains the lodestar for substantive
constitutional law on this subject such that the retroactivity
determination will be deemed to have existed at the time the
pending petitions were filed. Thus, we harmonize the PCRA
requirements with Montgomery, Miller, and Abdul–Salaam
and simultaneously achieve the justice this law was designed to
promote.
Id. (one citation omitted).
In light of Miller, Montgomery, and Secreti, it is clear that the
timeliness exception of section 9545(b)(1)(iii) applies to Appellant’s case.
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Thus, we have jurisdiction to vacate Appellant’s now illegal, mandatory
LWOP sentence. Accordingly, we reverse the PCRA court’s order, vacate
Appellant’s judgment of sentence, and remand for resentencing in
accordance with Montgomery.
Order reversed. Judgment of sentence vacated. Case remanded for
further proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2016
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