J-S12037-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GERMAN CRUZ, :
:
Appellant : No. 1769 EDA 2015
Appeal from the PCRA Order June 3, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0310322-1997
BEFORE: MUNDY, OLSON, and STRASSBURGER,* JJ.
JUDGMENT ORDER BY STRASSBURGER, J.:FILED MARCH 30, 2016
German Cruz (Appellant) pro se appeals in forma pauperis (IFP) from
the June 3, 2015 order that denied his petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We reverse the
PCRA order, vacate Appellant’s judgment of sentence, and remand for
resentencing.
In 1999, Appellant was sentenced to, inter alia, life imprisonment
without possibility of parole following his conviction for first-degree murder
based upon events that took place when Appellant was 17 years old.
On June 14, 2010, Appellant filed a petition for PCRA relief. He later
amended that petition to seek relief based upon the United States Supreme
Court’s decision in Miller v. Alabama, 132 S.Ct. 2455 (2012), in which the
Court held unconstitutional mandatory sentences of life imprisonment
*Retired Senior Judge assigned to the Superior Court.
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without possibility of parole imposed upon individuals who were juveniles at
the time they committed homicides. The PCRA court determined that
Appellant did not properly invoke the newly-recognized-constitutional-right
exception to the PCRA’s one-year timeliness requirement provided in 42
Pa.C.S. §9545(b)(1)(iii) because our Supreme Court held in
Commonwealth v. Cunningham, 81 A.3d 1, 11 (Pa. 2013), that Miller
does not apply retroactively.
While this appeal was pending, the U.S. Supreme Court decided in
Montgomery v. Louisiana, 136 S.Ct. 718 (2016), that Miller announced a
new substantive rule of law which applies retroactively. Thereafter, this
Court held that Montgomery renders “retroactivity under Miller effective as
of the date of the Miller decision.” Commonwealth v. Secreti, 2016 Pa.
Super. 28, 2016 WL 513341 at *5 (Pa. Super. filed February 9, 2016).
Under Secreti, Appellant’s PCRA petition meets the timeliness
exception provided by 42 Pa.C.S. § 9545(b)(1)(iii). Under Miller,
Montgomery, and Secreti, Appellant is entitled to PCRA relief in the form
of resentencing following judicial consideration of appropriate age-related
factors. See Commonwealth v. Batts, 66 A.3d 286, 297 (Pa. 2013).1
1
[A]t a minimum [the sentencing court] should consider a
juvenile’s age at the time of the offense, his diminished
culpability and capacity for change, the circumstances of the
crime, the extent of his participation in the crime, his family,
home and neighborhood environment, his emotional maturity
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Appellant is entitled to the assistance of counsel for his resentencing
proceedings. Com. ex rel. Wright v. Cavell, 220 A.2d 611, 614 (Pa. 1966)
(noting that sentencing is a critical stage of a criminal proceeding at which a
criminal defendant has a constitutional right to counsel). Because Appellant
has established his indigency in order to proceed IFP, the trial court upon
remand shall appoint counsel to represent Appellant.
Order reversed. Judgment of sentence vacated. Case remanded for
resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/30/2016
and development, the extent that familial and/or peer pressure
may have affected him, his past exposure to violence, his drug
and alcohol history, his ability to deal with the police, his
capacity to assist his attorney, his mental health history, and his
potential for rehabilitation.
Batts, 66 A.3d at 297 (quoting Commonwealth v. Knox, 50 A.3d 732, 745
(Pa. Super. 2012)).
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