Com. v. Jones, L. ( 2016 )

J-S04043-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LEVAR LEONARD JONES, :
:
Appellant : No. 1442 MDA 2014
Appeal from the PCRA Order Entered August 11, 2014
in the Court of Common Pleas of Lancaster County,
Criminal Division, at No(s): CP-36-CR-0003302-1994
BEFORE: BOWES, ALLEN, and STRASSBURGER,* JJ.
JUDGMENT ORDER BY STRASSBURGER, J.: FILED APRIL 13, 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 Levar Leonard Jones (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 1995, 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 14 years old. The order
from which Appellant appealed denied his request for PCRA relief based upon
the United States Supreme Court’s decision in Miller v. Alabama, 132 S.Ct.
*Retired Senior Judge assigned to the Superior Court.
J-S04043-15
2455 (2012). In that case, 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. Jones, 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(unpublished memorandum).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.
Jones, No. 313 MAL 2015, 2016 WL 732094, (Pa. Feb. 24, 2016).
Under Miller, Montgomery, and this Court’s decision in
Commonwealth v. Secreti, 2016 Pa. Super. 28, 2016 WL 513341 at *5
(Pa. Super. February 9, 2016), Appellant is entitled to PCRA relief in the
form of resentencing following judicial consideration of appropriate age-
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related factors. See Commonwealth v. Batts, 66 A.3d 286, 297 (Pa.
2013).1
Order reversed. Judgment of sentence vacated. Case remanded for
resentencing. Jurisdiction relinquished.
Judge Allen did not participate in the consideration or decision of this
judgment order.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2016
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.
Batts, 66 A.3d at 297 (quoting Commonwealth v. Knox, 50 A.3d 732, 745
(Pa. Super. 2012)).
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