J-S72011-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RODERICK TODD ALLEN,
Appellant No. 213 WDA 2014
Appeal from the PCRA Order Entered January 14, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0007206-1979
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 29, 2016
This case is before us on remand from our Supreme Court. After
careful review, we reverse the PCRA Court’s order denying relief and remand
for resentencing.
We previously summarized the relevant factual and procedural history
of this case as follows:
On March 28, 1980, at the conclusion of a jury trial,
Appellant was convicted of second-degree murder, robbery,
criminal conspiracy, and firearms violations. On June 30, 1980,
he was sentenced to, inter alia, a [mandatory] term of life
imprisonment.
On September 11, 1980, Appellant filed a pro se PCRA
petition. Appellant was appointed counsel. A hearing was held
on May 5, 1981. Following the hearing, the court reinstated
Appellant’s right to file a direct appeal nunc pro tunc, and his
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*
Retired Senior Judge assigned to the Superior Court.
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right to file post-sentence motions. Subsequently, post-
sentence motions were filed; they were denied on January 12,
1983. Appellant filed an appeal nunc pro tunc, and this Court
affirmed Appellant’s judgment of sentence on May 24, 1985.
See Commonwealth v. Allen, 496 A.2d 848 (Pa. Super. 1985)
(unpublished memorandum). The Pennsylvania Supreme Court
denied Appellant’s petition for allowance of appeal on December
13, 1985.
Appellant filed a pro se petition to file a writ of coram nobis
on January 28, 2003. Counsel was appointed and subsequently
filed a motion to withdraw pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v.
Finley, 479 A.2d 568 (Pa. Super. 1984). The court granted
counsel’s motion to withdraw on September 23, 2003. The
petition was dismissed on October 23, 2003. Appellant filed a
timely appeal. On June 27, 2005, this Court reversed the trial
court’s order and remanded the matter for a hearing to
determine whether Appellant’s claims were time-barred. See
Commonwealth v. Allen, 881 A.2d 877 (Pa. Super. 2005)
(unpublished memorandum). Counsel was appointed, and a
hearing was held on November 6, 2006. The trial court again
denied Appellant’s petition on December 20, 2006.
Appellant filed a timely appeal through counsel on January
11, 2007. This appeal was docketed as 153 WDA 2007. In
addition, Appellant filed a pro se notice of appeal on January 15,
2007. This appeal was docketed as 178 WDA 2007. On
February 13, 2007, this Court dismissed the appeal docketed at
178 WDA 2007, as it was duplicative of the appeal docketed at
153 WDA 2007.
Before we disposed of the appeal docketed at 153 WDA
2007, Appellant filed a pro se PCRA petition on October 27,
2007. The PCRA court denied this petition (for lack of
jurisdiction, due to Appellant’s appeal pending at 153 WDA
2007) on March 4, 2008. Appellant filed a notice of appeal on
March 27, 2008. This appeal was docketed as 1116 WDA 2008;
subsequently, this Court granted Appellant’s petition to
discontinue this appeal on December 8, 2008.
This Court affirmed the PCRA court’s order denying
Appellant PCRA relief on April 3, 2008. See Commonwealth v.
Allen, 954 A.2d 31 (Pa. Super. 2008) (unpublished
memorandum). The Pennsylvania Supreme Court denied
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Appellant’s petition for allowance of appeal on December 2,
2008. See Commonwealth v. Allen, 599 A.2d 705 (Pa. 2008).
Appellant filed the instant PCRA petition on August 13,
2012. An amended counseled PCRA petition was filed on
November 16, 2012. The court issued a Pa.R.Crim.P. 907 notice
of its intent to dismiss on November 8, 2013. The PCRA court
dismissed Appellant’s petition on January 14, 2014. Appellant
filed a timely notice of appeal, as well as a timely concise
statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b).
Commonwealth v. Allen, No. 213 WDA 2014, unpublished memorandum
at 1-3 (Pa. Super. filed December 2, 2014) (hereinafter, “Allen”), appeal
granted, order vacated, No. 585 WAL 2014, 2016 WL 731982 (Pa. filed Feb.
24, 2016).
It is undisputed that Appellant was a juvenile when he committed his
crime(s). See PCRA Court Opinion, 5/1/14, at 1 (“On June 30, 1980,
Petitioner, a juvenile at the time, was sentenced to a term of life plus five to
ten years imprisonment for second degree murder and related offenses.”).
In his 2012 PCRA petition (hereinafter, “Petition”), which is the subject of
the instant appeal, Appellant asserted that he was entitled to resentencing
under Miller v. Alabama, 132 S.Ct. 2455 (2012). The Miller Court held
that a mandatory sentence of life imprisonment without the possibility of
parole violates the Eighth Amendment when imposed on a juvenile. Despite
Appellant’s fitting Miller’s criteria (a juvenile sentenced to a mandatory life-
without-parole sentence), the PCRA court denied the Petition as untimely.
The PCRA Court found, pursuant to the Supreme Court of Pennsylvania’s
ruling in Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), that
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Appellant was not entitled to the retroactive application of the Miller
decision.
We note that the PCRA time limitations implicate our jurisdiction and
may not be altered or disregarded in order to address the merits of a
petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007)
(stating PCRA time limitations implicate our jurisdiction and may not be
altered or disregarded to address the merits of the petition);
Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002)
(holding the Superior Court lacks jurisdiction to reach merits of an appeal
from an untimely PCRA petition). Under the PCRA, any petition for post-
conviction relief, including a second or subsequent one, must be filed within
one year of the date the judgment of sentence becomes final, unless one of
the exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. That
section states, in relevant part:
(b) Time for filing petition.—
(1) 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:
(i) the failure to raise the claim previously was the result
of interference by government officials with the
presentation of the claim in violation of the Constitution or
laws of this Commonwealth or the Constitution or laws of
the United States;
(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been
ascertained by the exercise of due diligence; or
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(iii) 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.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
In Allen, Appellant asserted that the PCRA court had erred when it
denied the Petition as untimely, arguing that his Miller claim satisfied the
retroactivity exception to the PCRA’s timeliness requirements as set forth in
Section 9545(b)(1)(iii). Nevertheless, we affirmed the PCRA court’s denial
of Appellant’s petition, reasoning:
[T]he Court’s holding in Miller did not reach the question of
whether its ruling applied retroactively.
Subsequently, the Pennsylvania Supreme Court addressed
the issue of the retroactive application of Miller in []
Cunningham[]. The Cunningham Court noted:
Teague v. Lane, 489 U.S. 288, [] (1989) (plurality),
delineated a general rule of non-retroactivity for new
procedural, constitutional rules announced by the Court …
subject to two narrow exceptions…. As relevant here, the
exceptions extend to “rules prohibiting a certain category
of punishment for a class of defendants because of their
status or offense,” and “watershed rules of criminal
procedure implicating the fundamental fairness and
accuracy of the criminal proceeding.”
Cunningham, 81 A.3d at 4. The Court then held that Miller did
not “categorically bar a penalty for a class of offenders,” and,
therefore, Miller was not retroactive pursuant to the first
Teague exception. Id. at 10. The Court specifically declined to
determine whether Miller was retroactive pursuant to the
second Teague exception (i.e., that Miller constituted a
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“watershed ruling of criminal procedure”), as the Appellant Miller
had not raised that claim. Id.
Neither the United States Supreme Court, nor the
Supreme Court of Pennsylvania, has held that the right
recognized by the Supreme Court in Miller applies retroactively.
We are thus constrained to conclude that Appellant has failed to
plead and prove the exception to the PCRA time bar set forth in
section 9545(b)(1)(iii).
Allen, at 5-7.
Following our ruling in Allen, Appellant petitioned our Supreme Court
for allowance of appeal. On May 1, 2015, our Supreme Court held
Appellant’s petition pending the outcome of Montgomery v. Louisiana,
136 S.Ct. 718 (2016). Montgomery was decided on January 25, 2016. In
Montgomery, the Supreme Court of the United States held that Miller
announced a new substantive constitutional rule that must be applied
retroactively on state collateral review. Montgomery, 136 S.Ct. at 736.
Consequently, by order dated February 24, 2016, our Supreme Court
simultaneously granted Appellant’s petition for allowance of appeal and
reversed Allen. That order stated, in pertinent part:
AND NOW, this 24th day of February, 2016, The Petition
for Allowance of Appeal is GRANTED on the issue of whether
Petitioner’s sentence violates the prohibition against mandatory
life sentences for juvenile offenders announced by the Supreme
Court of the United States in Miller v. Alabama, 567 U.S. ___,
132 S. Ct. 2455 (2012). As a result of the recent holding by that
Court that Miller must be applied retroactively by the States,
see Montgomery v. Louisiana, 2016 WL 280758 (U.S. Jan.
25, 2016), the Superior Court’s order is VACATED, and the case
is REMANDED for further proceedings consistent with
Montgomery.
To the extent necessary, leave is to be granted to amend
the post-conviction petition to assert the jurisdictional provision
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of the Post Conviction Relief Act extending to the recognition of
constitutional rights by the Supreme Court of the United States
which it deems to be retroactive. See 42 Pa.C.S. §
9545(b)(1)(iii).
Order, 2/24/16, at 1 (single page).
Thus, we have been directed by our Supreme Court to reconsider our
decision in Allen in light of Montgomery. In that regard, we are guided by
this Court’s recent decision in Commonwealth v. Secreti, --- A.3d ---,
2016 PA Super 28, 2016 WL 513341 (Pa. Super. filed February 9, 2016).
Secreti dealt with an identically situated PCRA petitioner, in the sense that
he had filed an untimely PCRA petition seeking to invoke Miller to satisfy the
PCRA’s timeliness exception set forth in 42 Pa.C.S. § 9545(b)(1)(iii), but had
filed his petition before the Montgomery ruling. However, unlike our
decision in Allen, Montgomery was decided while the decision in Secreti
was still pending. In Secreti, this Court held that “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. The date of the Montgomery
decision (January 25, 2016, as revised on January 27, 2016) will control for
purposes of the 60–day rule in Section 9545(b)(2).” Secreti, 2016 WL
513341 at *6. Accordingly, the Secreti Court reversed the PCRA court
order denying relief, vacated Secreti’s sentence, and remanded for
resentencing. Id.
Instantly, Appellant is clearly entitled to the retroactive application of
Miller, as was afforded in Secreti and required under Montgomery.
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Accordingly, we reverse the PCRA court’s order denying relief under Miller,
and remand for resentencing.1
Order reversed. Remanded for resentencing. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/29/2016
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1
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.
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