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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TABITHA FAITH BUCK,
Appellant No. 2024 MDA 2015
Appeal from the PCRA Order entered October 26, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division, at No(s): CP-36-CR-0000398-1992
BEFORE: PANELLA, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED OCTOBER 04, 2016
Appellant, Tabitha Faith Buck, appeals from the order denying her
post-conviction relief pursuant to the Post Conviction Relief Act (“PCRA”).
42 Pa.C.S.A. §§ 9541-9546. We reverse and remand with instructions.
In 1991, Appellant, then seventeen years old, was convicted of
second-degree murder. The trial court sentenced her to life in prison without
the possibility of parole. We affirmed Appellant’s judgment of sentence, and
our Supreme Court denied allowance of appeal. See Commonwealth v.
Buck, 653 A.2d 1297 (Pa. Super. 2004) (Table), appeal denied, 655 A.2d
509 (Pa. 1995) (Table).
In 1996, Appellant filed a PCRA petition, but later withdrew it.
Appellant filed another pro se PCRA petition on June 28, 2010. The PCRA
court appointed counsel, and PCRA counsel filed an amended petition,
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alleging that Appellant’s sentence of life imprisonment without parole was
unconstitutional in light of the U.S. Supreme Court’s recent decision in
Graham v. Florida, 130 S.Ct. 2011 (2010). The PCRA court concluded that
the Court’s decision in Graham did not create a new constitutional right,
and, therefore, Appellant’s 2010 petition remained untimely. Appellant filed
a timely appeal to this Court.
In an unpublished memorandum filed on February 15, 2012, a panel of
this Court agreed, and affirmed the order denying post-conviction relief.
See Commonwealth v. Buck, 46 A.3d 818 (Pa. Super. 2012) (Table).
Appellant filed a timely petition for allowance of appeal. On November 5,
2012, our Supreme Court denied Appellant’s petition in a per curiam order
“without prejudice to [her] right to file or pursue another PCRA petition
premised on Miller v. Alabama, 132 S.Ct. 2455, 183 L.Ed. 2d 407 (June
25, 2012).” Commonwealth v. Buck, 55 A.3d 1051 (Pa. 2012) (Table).
Thereafter, Appellant filed a counselled PCRA petition. On October 30,
2013, our Supreme Court filed Commonwealth v. Cunningham, 81 A.3d
1, 11 (Pa. 2013), in which it determined that the Miller decision did not
apply retroactively to cases on collateral appeal. Appellant then filed an
amended PCRA petition on December 23, 2013. Following the United States
Supreme Court’s denial of certiorari in Cunningham on June 9, 2014, the
PCRA court filed Rule 907 notice of its intent to dismiss Appellant’s second
PCRA petition without a hearing. Appellant did not file a response. By order
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entered October 26, 2015, the PCRA court denied the petition. Appellant
filed this timely appeal.
While this appeal was pending, the Miller decision was held to be
retroactive by the United States Supreme Court in Montgomery v.
Louisiana, 136 S.Ct. 718 (2016). And Miller applies retroactively to cases
pending on collateral review. See Commonwealth v. Secreti, 134 A.3d 77,
82 (Pa. Super. 2016).
Appellant is plainly entitled to sentencing relief under Miller and
Montgomery. The Commonwealth aptly concedes this disposition here.
Accordingly, we reverse the PCRA court’s order, vacate the judgment of
sentence, and remand for re-sentencing.
Order reversed. Judgment of sentence vacated. Case remanded for re-
sentencing. Jurisdiction relinquished.
Judges Stabile and Jenkins concur in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/4/2016
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