J-S26038-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
IAN CUNNINGHAM, :
:
Appellant : No. 1780 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-0203131-2000,
CP-51-CR-0203141-2000
BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 03, 2016
Ian Cunningham (Appellant), through counsel, appeals 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 2002, Appellant was sentenced to life imprisonment without
possibility of parole following his conviction for second-degree murder based
upon events that took place when Appellant was 17 years old. The order
from which Appellant filed the instant appeal denied his request for PCRA
relief based upon the United States Supreme Court’s decision in Miller v.
Alabama, 132 S.Ct. 2455 (2012). In that case, the Court held
unconstitutional mandatory sentences of life imprisonment without
*Retired Senior Judge assigned to the Superior Court.
J-S26038-16
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, on review of the dismissal
of Appellant’s prior PCRA petition, that Miller does not apply retroactively.
Commonwealth v. Cunningham, 81 A.3d 1, 11 (Pa. 2013).
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
and development, the extent that familial and/or peer pressure
-2-
J-S26038-16
Order reversed. Judgment of sentence vacated. Case remanded for
resentencing. Jurisdiction relinquished.
Judge Olson joins.
Judge Stabile concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/2016
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)).
-3-