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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JOHN THOMPSON JR, :
:
Appellant : No. 1703 EDA 2015
Appeal from the PCRA Order May 27, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0712371-1979
BEFORE: OTT, J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY DUBOW, J.: FILED March 21, 2016
Appellant John Thompson appeals from the Order denying as untimely
his fourth Petition filed pursuant to Post-Conviction Relief Act (“PCRA”), 42
Pa.C.S. §9542-9545, and his Petition for a Writ of Habeas Corpus. In light of
Montgomery v. Louisiana, 136 S.Ct. 718 (2016), and Commonwealth v.
Secreti, __ A.3d __, 2016 WL 513341 (Pa. Super. filed Feb. Feb. 9, 2016),
we vacate and remand for further proceedings consistent with
Montgomery.
On February 6, 1980, a jury found Appellant guilty of first-degree
murder. The trial court sentenced Appellant, then 17 years old, to a
mandatory term of life imprisonment without the possibility of parole
(“LWOP”). This Court affirmed the judgment of sentence, and our Supreme
Court denied allocatur on May 3, 1985. Appellant thereafter filed four
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Petitions seeking collateral relief pursuant to the PCRA, which were all
denied.
On June 21, 2010, Appellant filed the instant pro se PCRA Petition
raising a claim pursuant to Graham v. Florida, ___ U.S. ___. 130 S.Ct.
2011 (2010). On July 18, 2012, Appellant amended his Petition to assert the
new constitutional right recognized on June 25, 2012, in Miller v. Alabama,
132 S.Ct. 2455 (2012) (prohibiting mandatory sentences of LWOP for
juvenile offenders). On December 16, 2013, Appellant filed a second
amendment to his Petition, providing further discussion of Miller, supra,
and its companion case, Jackson v. Hobbs, 132 S.Ct. 2455 (2012).1 On
December 27, 2013, Appellant filed a Petition for a Writ of Habeas Corpus,
also asserting his Miller/Jackson claim.
On June 16, 2014, pursuant to Pa.R.Crim.P. 907, the trial court filed a
notice of intent to dismiss both the 2010 PCRA Petition and the Petition for a
Writ of Habeas Corpus. On May 27, 2015, the trial court concluded the issue
raised in Appellant’s Petition for a Writ of Habeas Corpus was cognizable
under the PCRA, and denied both Petitions as untimely based on
Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013) (holding that
Miller/Jackson did not create a new constitutional right that applies
retroactively). On June 5, 2015, Appellant appealed to this Court.
1
Miller pertained to a case decided on direct appeal; Jackson pertained to
a state post-conviction case.
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On January 25, 2016, while Appellant’s PCRA appeal was pending, the
U.S. Supreme Court decided Montgomery, supra, holding that Miller must
be applied retroactively by the States.
Appellant presents the following questions for our review:
(a) Did the lower court fail to adjudicate Appellant’s writ of
habeas corpus under the proper standard, as held under 42
Pa.C.S. § 6501 et al., where Appellant challenged the
Pennsylvania State Constitution under Article 1, Section(s) 9, 13
and 14?
(b) Did the lower court fail to adjudicate Appellant’s Post-
Conviction Relief Act Petition under the proper standard, where
the United States Supreme Court was implicit in their decision of
retroactivity under Jackson v. Hobbs, __ U.S. __, 132 S.Ct.
2455?
Appellant’s Brief at 3.
Our standard of review of the denial of a PCRA petition is well-settled.
We are limited to examining whether the evidence of record supports the
court’s determination and whether its decision is free of legal error.
Secreti, supra at *2 (citation omitted). This Court grants great deference
to the findings of the PCRA court if supported by the record, but we give no
such deference to the court’s legal conclusions. Id. (citations omitted).
Appellant first challenges the trial court’s disposition under the PCRA of
his Petition for a Writ of Habeas Corpus. We conclude the trial court
properly did so.
It is well-settled that the PCRA provides the “sole means of obtaining
collateral relief and encompasses all other common law and statutory
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remedies for the same purpose that exist when this subchapter takes effect,
including habeas corpus[.]” 42 Pa.C.S. § 9542. See Commonwealth v.
West, 938 A.2d 1034, 1043 (Pa. 2007) (“[T]he PCRA subsumes all forms of
collateral relief ... to the extent a remedy is available under such
enactment.”) (emphasis omitted); and Commonwealth v. Peterkin, 722
A.2d 638, 640 (Pa. 1998) (“The writ [of habeas corpus ] continues to exist
only in cases in which there is no remedy under the PCRA.”).
Claims based on a “newly recognized constitutional right” are
cognizable under the PCRA pursuant to 42 Pa.C.S. § 9545(b)(1)(iii) and (2). 2
Accordingly, the trial court properly considered Appellant’s “subsequent
iteration of Miller” raised in his Petition for a Writ of Habeas Corpus under
the PCRA. Trial Court Order and Memorandum Op., dated May 27, 2015, at
2.
Appellant’s second issue challenges the LWOP imposed upon him as a
juvenile. The PCRA court denied Appellant’s request for collateral relief after
concluding that Cunningham, supra, explicitly provided that Miller did not
create a new constitutional right that applies retroactively. This issue
2
42 Pa.C.S. §9545(b)(1)(iii) provides: “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 … 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.” Subsection (b)(2) provides: “Any
petition invoking an exception provided in paragraph (1) shall be filed within
60 days of the date the claim could have been presented.”
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implicates the holding of the U.S. Supreme Court’s recent decision in
Montgomery, supra.
In Secreti, supra, this Court recently recognized that “Montgomery
has clarified Miller with regard to its substantive law and retroactivity.
Consequently, … Cunningham, supra, no longer controls in this context.”
Secreti, supra at *5. The panel concluded that “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
petition[ was] filed.” Secreti, supra at *6. Thus, as a result of
Montgomery, “the Miller rule of law ‘has been held’ to be retroactive for
purposes of collateral review as of the date of the Miller decision on June
25, 2012.” Secreti at *6, citing Commonwealth v. Abdul-Salaam, 812
A.2d 497, 501-2 (Pa. 2002) (noting that the “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.”).
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.” Secreti, supra, at *5.
Here, Appellant amended his current PCRA petition on July 18, 2012, within
60 days of the June 25, 2012 Miller decision, as required by Section
9545(b)(2), and asserted Miller’s substantive law as an exception to the
PCRA timeliness requirements, as provided in Section 9545(b)(1)(iii). While
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the appeal of the denial of his PCRA Petition was pending in this Court, the
U.S. Supreme Court decided Montgomery.
Because Appellant had timely raised his Miller claim, and his Petition
was pending on appeal at the time Montgomery was decided, Appellant’s
second issue is cognizable under the rule announced in Montgomery.
Accordingly, we reverse the PCRA court’s order, vacate Appellant’s judgment
of sentence, and remand for resentencing in accordance with
Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013).3 See Secreti, supra
at *6.
Order reversed; case remanded for resentencing. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/2016
3
In Batts, supra, the Pennsylvania Supreme Court recognized that “Miller
requires only that there be judicial consideration of the appropriate age-
related factors set forth in that decision prior to the imposition of a sentence
of life without parole on a juvenile.” Batts, 66 A.3d. at 296.
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