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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
KEITH JOHNSON, : No. 2020 WDA 2013
:
Appellant :
Appeal from the PCRA Order, November 25, 2013,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0005882-1985
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.
JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.: FILED APRIL 06, 2016
Keith Johnson filed a petition for allowance of appeal from our
unpublished judgment order affirming the trial court order denying his
second 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). We reverse and remand for resentencing.
On May 19, 1985, while 16 years of age, appellant stabbed another
teenager to death on the Fort Duquesne Bridge in Pittsburgh. On
October 18, 1985, a jury convicted appellant of first-degree murder; and on
July 23, 1986, appellant was sentenced to a mandatory sentence of life
imprisonment without the possibility of parole.
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On December 4, 1987, this court affirmed the judgment of sentence;
and on November 2, 1988, our supreme court denied appeal.
Commonwealth v. Johnson, 536 A.2d 825 (Pa.Super. 1987) (unpublished
memorandum), appeal denied, 552 A.2d 250 (Pa. 1988). Appellant’s first
PCRA petition was filed on July 16, 2010, and was denied on March 30,
2011.
Appellant filed the instant PCRA petition on July 16, 2012, within
60 days of the United States Supreme Court’s June 25, 2012 decision in
Miller v. Alabama, U.S. , 132 S.Ct. 2455 (2012), which held that it
is unconstitutional to sentence individuals who were under 18 years of age
at the time of their offense to a mandatory minimum sentence of life
imprisonment without the possibility of parole. Appellant’s petition invoked
the after-recognized constitutional right exception to the time restrictions of
the PCRA. See 42 Pa.C.S.A. § 9545(b)(1)(iii).
On January 27, 2015, this court held that we did not have jurisdiction
to review appellant’s petition because our supreme court held that Miller did
not apply retroactively to persons on collateral review. Commonwealth v.
Cunningham, 81 A.3d 1 (Pa. 2013). Appellant petitioned our supreme
court for an allowance of appeal, which was granted. See Commonwealth
v. Johnson, 2016 WL 593964 (Pa. 2016). In light of the United States
Supreme Court’s recent decision in Montgomery, the Pennsylvania
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Supreme Court remanded this case to this court for further proceedings
consistent with Montgomery on February 11, 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 16 years old at the
time of the offense, to a mandatory sentence of life imprisonment without
the possibility of 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 resentencing.
Order reversed. Remanded for resentencing. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2016
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