Com. v. Olds, R. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RICKY LEE OLDS,
Appellant No. 1319 WDA 2014
Appeal from the PCRA Order July 15, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0006857-1979
CP-02-CR-0007090-1979
BEFORE: BOWES, DONOHUE, AND FITZGERALD,*
MEMORANDUM BY BOWES, J.: FILED APRIL 12, 2016
This matter is again before this panel upon remand from the Supreme
Court. We vacate the September July 15, 2014 PCRA order, vacate
Appellant’s judgment of sentence, and remand for resentencing.
On April 2, 1980, Appellant was found guilty of second-degree murder,
robbery, and conspiracy based on a crime that he committed when he was
fourteen years old. On April 28, 1981, Appellant was sentenced to a
mandatory term of life imprisonment without parole (“LWOP”) based upon
his second-degree murder conviction. On November 25, 1983, we affirmed
the judgment of sentence. Commonwealth v. Olds, 469 A.2d 1072(Pa.Super. 1983).
* Former Justice specially assigned to the Superior Court.
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Appellant litigated his first request for post-conviction relief, which was
counseled, through the trial and appellate courts from 1984 through 1992.
During that proceeding, the court denied relief, we reversed, and our
Supreme Court reversed this Court, reinstating the denial of post-conviction
relief. Appellant filed his second petition collaterally attacking his judgment
of sentence on July 13, 2010. Relief was denied, we affirmed, and our
Supreme Court denied allowance of appeal.
Appellant filed a third PCRA petition on August 20, 2012, within sixty
days of the June 25, 2012 issuance of Miller v. Alabama, 132 S.Ct. 2455(2012), which held that a mandatory sentence of LWOP could not be
imposed upon juvenile homicide offenders due to the Eighth Amendment’s
prohibition against cruel and unusual punishment. Counsel was appointed.
The PCRA court stayed the PCRA proceeding until the Pennsylvania Supreme
Court ruled on whether Miller would be given full retroactive effect to PCRA
petitioners. Our Supreme Court thereafter decided that Miller would not be
applied in the post-conviction context. Commonwealth v. Cunningham,
81 A.3d 1 (Pa. 2013).
The PCRA court herein then dismissed Appellant’s August 20, 2012
PCRA petition. On appeal, This panel affirmed. Commonwealth v. Olds,
2015 WL 650915 (unpublished memorandum, Oct. 27, 2015). Before this
panel, Appellant claimed that his PCRA petition was timely filed under the
third exception to the PCRA’s mandate that all PCRA petitions must be filed
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within one year of when a petitioner’s judgment of sentence became final.
That exception provides that a PCRA petition is considered timely if “the
right asserted [in the petition] 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)(iii). We noted
that the exception was inapplicable in that neither the United States
Supreme Court nor the Pennsylvania Supreme Court had determined that
Miller applied retroactively. On February 25, 2016, our Supreme Court
reversed and remanded the October 27, 2015 decision of this panel due to
the issuance of Montgomery v. Louisiana, 136 S.Ct. 718 (2016), which
overruled Cunningham by holding that Miller was to be given retroactive
effect.
Shortly after Montgomery's issuance, this Court disseminated a
published opinion in Commonwealth v. Secreti, 2016 WL 513341(Pa.Super. 2016). Therein, Secreti had been sentenced to automatic life
imprisonment without the possibility of parole for committing first degree
murder as a juvenile, and filed a PCRA petition seeking relief under Miller.
Relief was denied, and Secreti was on appeal when Montgomery was
decided. On February 9, 2016, following issuance of Montgomery, this
Court in Secreti noted that the Miller rule of law had been held to be
retroactive for purposes of collateral review under Montgomery. We
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decided that, since Secreti had invoked 42 Pa.C.S. § 9545(b)(1)(iii), he was
entitled have his judgment of sentence vacated under Miller and to be re-
sentenced in accordance with the dictates of our Supreme Court’s decision in
Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013).
Based on Secreti and due to Appellant’s express invocation of §
9545(b)(1)(iii) in this appeal, we vacate the order of the PCRA court, vacate
the judgment of sentence, and remand for a new sentencing hearing under
Batts.
Order reversed. Case remanded. Jurisdiction relinquished.
Judge Donohue did not participate in the consideration or decision of
this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2016
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