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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
LUIS E.E. ANDUJAR, : No. 1026 EDA 2013
:
Appellant :
Appeal from the PCRA Order, April 9, 2012,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0002941-2007
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND PLATT,* JJ.
JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.: FILED MARCH 18, 2016
Luis E.E. Andujar filed a petition for allowance of appeal with our
supreme court from our unpublished memorandum affirming the trial court
order denying his first petition brought pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. The Supreme Court of
Pennsylvania remanded for further proceedings consistent with
Montgomery v. Louisiana, U.S. , 136 S.Ct. 718 (2016).
Accordingly, we reverse and remand for resentencing.
On October 15, 2007, a jury found appellant guilty of first-degree
murder and related charges. Thereafter, appellant was sentenced to an
aggregate term of life imprisonment. On January 7, 2009, this court
affirmed the judgment of sentence, and on July 7, 2009, our supreme court
* Retired Senior Judge assigned to the Superior Court.
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denied appeal. Commonwealth v. Andujar, 968 A.2d 785 (Pa.Super.
2009), appeal denied, 980 A.2d 109 (Pa. 2009).
On November 9, 2009, appellant filed his first PCRA petition, pro se,
in which he raised ineffective assistance of counsel and sentencing claims.
The PCRA court dismissed the petition on April 9, 2012, and no appeal was
taken. On June 25, 2012, the United States Supreme Court subsequently
handed down Miller v. Alabama, U.S. , 132 S.Ct. 2455 (2012),
which held that sentencing a person who was a juvenile at the time of the
offense to a mandatory term of life imprisonment without parole for
homicide violated the Eighth Amendment’s restriction on cruel and unusual
punishment.
On August 14, 2012, appellant filed his second PCRA petition, pro se,
raising Miller. Counsel was appointed and an amended petition was filed.
On March 23, 2013, with the agreement of appellant and the
Commonwealth, the PCRA court reinstated appellant’s right to appeal,
nunc pro tunc, from the April 9, 2012 order dismissing his first PCRA
petition. On appeal, we held that Miller did not apply retroactively based on
our supreme court’s decision in Commonwealth v. Cunningham, 81 A.3d
1 (Pa. 2013). Commonwealth v. Andujar, No. 1026 EDA 2013,
unpublished memorandum (Pa.Super. filed July 8, 2014). Appellant
petitioned our supreme court for an allowance of appeal on July 29, 2014.
In light of the United States Supreme Court’s recent decision in
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Montgomery, the Pennsylvania Supreme Court remanded this case to this
court for further proceedings consistent with Montgomery on February 11,
2016. See Commonwealth v. Andujar, 2016 WL 593926 (Pa. 2016).
After the United States Supreme Court’s holding in Montgomery,
Cunningham’s tenet that Miller cannot be applied retroactively is no longer
good law in Pennsylvania. See Commonwealth v. Secreti, 2016 WL
513341 (Pa.Super. 2016) (interpreting Montgomery as making retroactivity
under Miller effective as of the date of the Miller decision).
Here, the trial court sentenced appellant, who was a juvenile at the
time of the offense, to a mandatory sentence of life imprisonment without
the possibility of parole. In light of the United States 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 resentencing.
Order reversed. Remanded for resentencing. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/18/2016
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