J. S11009/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SAMUEL GLADDEN, : No. 1572 EDA 2015
:
Appellant :
Appeal from the PCRA Order, May 14, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0430781-1992
BEFORE: FORD ELLIOTT, P.J.E., OTT AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 16, 2016
Samuel Gladden appeals, pro se, from the May 14, 2015 order
denying his third petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, following his convictions of
second-degree murder and possession of an instrument of crime.1 We
reverse and remand for resentencing.
On May 18, 1993, a jury convicted appellant, who was 16 years old at
the time of the offense, of second-degree murder and possession of an
instrument of crime. On March 16, 1994, the trial court sentenced appellant
to a mandatory sentence of life imprisonment without the possibility of
parole. This court affirmed the judgment of sentence on September 26,
1
18 Pa.C.S.A. §§ 2502(b) and 907, respectively.
J. S11009/16
1995. See Commonwealth v. Gladden, 665 A.2d 1201 (Pa.Super. 1995)
(en banc). The Supreme Court of Pennsylvania denied appellant’s petition
for allowance of appeal on April 24, 1996. See Commonwealth v.
Gladden, 675 A.2d 1243 (Pa. 1996).
On March 20, 1997, appellant filed his first petition pursuant to the
PCRA. The trial court dismissed appellant’s petition on December 15, 1997.
Appellant filed a second PCRA petition on May 1, 2000, which the trial court
dismissed as untimely on September 20, 2000. Appellant appealed the trial
court’s dismissal, which we affirmed on May 18, 2001. See
Commonwealth v. Gladden, No. 2923 EDA 2000, unpublished
memorandum (Pa.Super. filed May 18, 2001). The Supreme Court of
Pennsylvania denied allowance of appeal on October 1, 2001. See
Commonwealth v. Gladden, 788 A.2d 373 (Pa. 2001).
Appellant filed his third PCRA petition, which is at issue in the instant
case, on July 2, 2010. On July 30, 2012, appellant filed an amended PCRA
petition in response to the Supreme Court of the United States’ decision in
Miller v. Alabama, 132 S.Ct. 2455 (2012). On December 17, 2013,
appellant motioned for leave to supplement his petition for habeas corpus
relief and filed an amended PCRA petition on that date. On June 24, 2014,
the trial court notified appellant of its intent to dismiss his PCRA petition as
untimely, pursuant to Pa.R.Crim.P. 907. The trial court dismissed
-2-
J. S11009/16
appellant’s PCRA petition on May 14, 2015. Appellant filed a notice of appeal
on May 26, 2015.
Appellant raises the following issues for our review:
I. Should review be granted to determine if the
Court of Common Pleas deprived appellant his
due process and equal protection rights when
failing to accept appellant’s writ of habeas
corpus and a PCRA petition, violating the
United States Constitution 8 and 14
Amendment [sic]; Pennsylvania Constitution,
Article I, Section 13; United Nations
Convention on the Rights of the Child Article
37[?]
II. Should review be granted to determie [sic] if
the Commonwealth Court of Common Pleas
erred by allowing an unconstitutional sentence
to stand which [is] a violation of Pennsylvania
Constitution, Article I, Section 1, 9, 11, 13, 14,
and the 25 [sic], also the United States
Constitution, 8th and 14th Amendment [sic][?]
Appellant’s brief at 3.
The trial court acknowledged that appellant,
did not waive his Miller claim because he raised it
within sixty days of the date that Miller was
decided[. However, appellant] still had the burden
of establishing that [the trial court] had jurisdiction
to address his claim. See Commonwealth v.
Seskey, 86 A.3d 237, 241 (Pa.Super. 2014).
[Appellant] did not meet his burden because the
Pennsylvania Supreme Court ruled that Miller did
not create a new constitutional right that applies
retroactively. Commonwealth v. Cunningham, 81
A.3d 1 (Pa. 2013), cert. denied, 134 S.Ct. 2724
(2014).
Trial court opinion, 5/14/15 at 2.
-3-
J. S11009/16
Indeed, at the time of the trial court’s order and opinion dismissing
appellant’s PCRA petition, Cunningham controlled all Miller claims filed
pursuant to the PCRA, and our supreme court found that Miller protections
did not apply retroactively in Pennsylvania.2 Cunningham, 81 A.3d at 11.
While this appeal was pending in this court, however, the Supreme Court of
the United States announced its decision in Montgomery v. Louisiana, 136
S.Ct. 718 (2016). The Montgomery Court held that its decision in Miller
“announced a substantive rule of constitutional law.” Id. at 734.
Specifically, the Court stated that, “Miller’s conclusion that the sentence of
life without parole is disproportionate for the vast majority of juvenile
offenders raises a grave risk that many are being held in violation of the
Constitution.” Id. at 736.
In order to prevent such harm, the Court found that substantive rules,
much like the rule announced in Miller, must be retroactive, “because
[they] ‘“necessarily carr[y] a significant risk that a defendant”’--here, the
vast majority of juvenile offenders--‘“faces a punishment that the law cannot
impose upon him.’” Id. at 734, quoting Schriro v. Summerlin, 542 U.S.
348, 352 (2004) (citations omitted). Therefore, Cunningham’s tenet that
Miller cannot be applied retroactively is no longer good law in Pennsylvania.
2
In Miller, the Supreme Court of the United States held that mandatory
sentences of life imprisonment without the possibility of parole for juvenile
offenders violated the Eighth Amendment. Miller, 132 S.Ct. at 2469.
-4-
J. S11009/16
A recent panel of this court analyzed the further implications of
Montgomery on Pennsylvania case law.
We now turn our attention to the implications arising
from [Commonwealth v. Abdul-Salaam, 812 A.2d
497, 502 (Pa.2002)], (holding: “[T]he language ‘has
been held’ in 42 Pa.C.S. § 9545(b)(1)(iii) means that
a retroactivity determination must exist at the
time that the petition is filed”) (emphasis added).
The instant case represents an example of the
unique situation implicating those PCRA petitions
seeking Miller relief which were filed in the time gap
following Miller but before Montgomery. ...
When Appellant filed his petition, the various
jurisdictions were still trying to decide if Miller was
available on collateral review but were doing so
without the benefit of Montgomery. Appellant's
petition was ultimately decided under Cunningham,
supra and denied. We recognize that similar “gap”
cases are in the appellate system awaiting
disposition . . . .
Therefore, we now hold that the best
resolution of this dilemma is to interpret
Montgomery as making retroactivity under Miller
effective as of the date of the Miller decision. In
this way, we satisfy the “has been held” conditional
language enunciated in Abdul–Salaam, supra.
Commonwealth v. Secreti, 2016 WL 513341 (Pa.Super. 2016) at *5-6
(citations reformatted).
As a result, appellant has proven by a preponderance of the evidence
that the right he is asserting is a constitutional right recognized, in this case,
by the Supreme Court of the United States to apply retroactively. The trial
court sentenced appellant, who was 16 years old at the time of the offense,
to a mandatory sentence of life imprisonment without the possibility of
-5-
J. S11009/16
parole. In light of the Supreme Court’s recognition in Miller that such a
sentence violates the Eighth Amendment’s prohibition against cruel and
unusual punishment, and the Court’s recent retroactive application of Miller
in Montgomery, we reverse the trial court’s order and remand for
re-sentencing.
Order reversed; case remanded for resentencing. Appellant’s motion
for extraordinary relief is denied for mootness. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2016
-6-