J-S04039-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MICHAEL LEE BOURGEOIS, :
:
Appellant : No. 1248 MDA 2014
Appeal from the PCRA Order July 7, 2014
in the Court of Common Pleas of Lancaster County,
Criminal Division, at No(s): CP-36-CR-0004224-2001
and CP-36-CR-0004975-2001
BEFORE: BOWES, ALLEN, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JULY 29, 2016
This matter comes before us on remand from the Pennsylvania
Supreme Court, following its entry of an order vacating our affirmance of the
dismissal of the petition filed by Michael Lee Bourgeois (Appellant) pursuant
to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We now
reverse the PCRA court’s order, vacate Appellant’s judgment of sentence,
and remand for resentencing.
In 2003, Appellant was sentenced to two consecutive terms of life
imprisonment without possibility of parole following his negotiated guilty
plea to two counts of first-degree murder based upon events that took place
when Appellant was 17 years old. The order from which Appellant appealed
denied his request for PCRA relief based upon the United States Supreme
*Retired Senior Judge assigned to the Superior Court.
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Court’s decision in Miller v. Alabama, 132 S.Ct. 2455 (2012), in which the
Court held unconstitutional mandatory sentences of life imprisonment
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. We affirmed based upon Cunningham.
Commonwealth v. Bourgeois, 120 A.3d 1067 (Pa. Super. 2015)
(unpublished memorandum).
While Appellant’s subsequent petition for allowance of appeal to our
Supreme Court 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. On February 24,
2016, our Supreme Court entered a per curiam order granting Appellant’s
petition for allowance of appeal, vacating this Court’s order, and remanding
for further proceedings consistent with Montgomery. Commonwealth v.
Bourgeois, 132 A.3d 983 (Pa. 2016).
We directed the parties to brief what effect, if any, the fact that
Appellant’s sentence was imposed as a term of a negotiated plea agreement
has upon Appellant’s request for relief. Neither party’s brief presents any
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authority to support distinguishing this case from one in which a mandatory
sentence of life imprisonment without the possibility of parole was imposed
upon a juvenile after a trial. Accordingly, we decline to find that Appellant’s
claim in this case, in which he bargained for life imprisonment at a time
when he faced a possible death sentence, falls outside the reach of Miller
and Montgomery.
Under Miller, Montgomery, and this Court’s decision in
Commonwealth v. Secreti, 134 A.3d 77 (Pa. Super. 2016), Appellant is
entitled to PCRA relief in the form of resentencing following judicial
consideration of appropriate age-related factors.1
The Commonwealth does not dispute that Appellant is entitled to
resentencing consistent with Miller and Montgomery. Commonwealth’s
Brief, 6/7/2016, at 11. However, it suggests that further proceedings in this
Court should await guidance from our Supreme Court on how to resentence
juveniles who obtain relief pursuant to Miller and Montgomery. See id. at
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
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.
Secreti, 134 A.3d at 81-82 (internal quotation marks and citations omitted).
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13-14 (citing Commonwealth v. Batts, 135 A.3d 176 (Pa. 2016)).2 We
see no reason to hold the case in this Court pending our Supreme Court’s
decision. The Commonwealth and Appellant may address their respective
positions on the form and substance of Appellant’s resentencing to the trial
court.
Order reversed. Judgment of sentence vacated. Case remanded for
resentencing. Jurisdiction relinquished.
Judge Allen did not participate in the consideration or decision of this
memorandum.
2
The grant of allowance of appeal includes, inter alia, the following issues:
In Miller v. Alabama, the U.S. Supreme Court outlawed
mandatory life without parole for juveniles (LWOP), and
instructed that the discretionary imposition of this sentence
should be “uncommon” and reserved for the “rare juvenile
offender whose crime reflects irreparable corruption.”
i. There is currently no procedural mechanism to
ensure that juvenile LWOP will be “uncommon” in
Pennsylvania. Should this Court exercise its
authority under the Pennsylvania Constitution to
promulgate procedural safeguards including (a) a
presumption against juvenile LWOP; (b) a
requirement for competent expert testimony; and (c)
a “beyond a reasonable doubt” standard of proof?
ii. The lower court reviewed the Petitioner’s sentence
under the customary abuse of discretion standard.
Should the Court reverse the lower court’s
application of this highly deferential standard in light
of Miller?
Batts, 135 A.3d at 176.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2016
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Com. v. Bourgeois, M.
Combined Opinion