Com. v. Sheppard, W. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
WILLIAM R. SHEPPARD
Appellant No. 1545 EDA 2015
Appeal from the PCRA Order April 28, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1111131-1976
BEFORE: MUNDY, J., OLSON, J., and STRASSBURGER, J.*
MEMORANDUM BY MUNDY, J.: FILED March 21, 2016
Appellant, William R. Sheppard, appeals pro se from the April 28, 2015
order, dismissing as untimely, his petition for relief filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful
review, we reverse the PCRA court’s order, vacate the judgment of sentence,
and remand for resentencing.
On October 6, 1977, the trial court imposed a mandatory, aggregate
sentence of life imprisonment without the possibility of parole, after
Appellant was found guilty of one count each of first-degree murder and
possession of an instrument of a crime.1 The parties agree that Appellant
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2502(a) and 907(a), respectively.
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was under 18 years of age at the time of the offense. Appellant’s Brief at 2;
Commonwealth’s Brief at 7. This Court affirmed Appellant’s judgment of
sentence on September 7, 1979, and our Supreme Court denied Appellant’s
petition for allowance of appeal on February 4, 1980. Commonwealth v.
Shepherd, 409 A.2d 894 (Pa. Super. 1979).2 As Appellant did not seek a
writ of certiorari from the United States Supreme Court, his judgment of
sentence became final in 1980 when the period for filing a certiorari petition
expired. See 42 Pa.C.S.A. § 9545(b)(3) (stating, “a judgment becomes final
at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of time for seeking the review[]”). Appellant filed
petitions for post-conviction relief in 1980, 1986, 1992, 1997, and 2006,
none of which garnered him any relief. Appellant filed the instant petition on
July 2, 2010; as a result, it was facially untimely. See id. § 9545(b)(1)
(stating, “[a]ny petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final[]”). Relevant to this appeal, Appellant amended his PCRA
petition on July 26, 2012 to include a claim based on the United States
Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455 (2012).
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2
We note that Appellant’s last name is spelled differently in our opinion from
his direct appeal. We further observe that a table citation is not available for
our Supreme Court’s denial of his allocatur petition on direct appeal.
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Instantly, Appellant argues on appeal that his petition is timely under
the new constitutional right exception at Section 9545(b)(1)(iii) because
Miller applies retroactively to cases on collateral review. Appellant’s Brief at
4. In Miller, the Supreme Court held the Cruel and Unusual Punishment
Clause of the Federal Constitution forbids the imposition of a mandatory
sentence of life imprisonment without the possibility of parole upon a minor,
even for a homicide. Miller, supra at 2460. On January 25, 2016, the
Supreme Court decided Montgomery v. Louisiana, 136 S. Ct. 718 (2016),
which concluded that Miller is to be applied retroactively to cases on state
collateral review.3 Montgomery, supra at 736.
Given that Appellant is correct that Miller is retroactive to cases on
collateral review, we now address whether we may afford him a remedy at
this juncture. The Commonwealth argues that Appellant may not seek a
remand even if Miller were retroactive based on the text of Section
9545(b)(1)(iii) and our Supreme Court’s decision in Commonwealth v.
Abdul-Salaam, 812 A.2d 497 (Pa. 2002). Commonwealth’s Brief at 7-8
n.2.
Section 9545(b)(1)(iii) permits an exception to the PCRA time-bar
when the petition in question alleges and proves “the right asserted is a
constitutional right that was recognized by the Supreme Court of the United
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3
Appellant’s “Motion for Leave to Submit Supplemental Notice of Authority”
is hereby granted.
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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.A. § 9545(b)(1)(iii) (emphasis added). In Abdul-Salaam, our
Supreme Court held that the General Assembly’s use of the past tense in the
phrase “has been held” in Section 9545(b)(1)(iii) means that the applicable
“retroactivity determination must exist at the time that the petition is filed.”
Abdul-Salaam, supra at 502. As noted above, Appellant’s petition was
initially filed on July 2, 2010 and amended to include Miller on July 26,
2012, but Montgomery was not decided until January 25, 2016.
However, on February 9, 2016, this Court examined Abdul-Salaam
and held that “[t]he date of the Montgomery decision (January 25, 2016,
as revised on January 27, 2016) will control for purposes of the 60-day rule
in Section 9545(b)(2).” Commonwealth v. Secreti, --- A.3d ---, 2016 WL
513341, at *6 (Pa. Super. 2016). The Court explained that this was
necessary to “harmonize the PCRA requirements with Montgomery, Miller,
and Abdul-Salaam and simultaneously achieve the justice this law was
designed to promote.” Id. at *5. Therefore, consistent with Secreti,
Appellant’s petition was timely and Miller does apply to his case.
Furthermore, as noted above, Appellant was given a mandatory sentence of
life imprisonment without the possibility of parole, and the Commonwealth
acknowledges that Appellant was a minor at the time of the offense.
Appellant’s Brief at 2; Commonwealth’s Brief at 7. As a result, Appellant is
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entitled to resentencing, consistent with Montgomery, Miller, and
Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013).4
Based on the foregoing, we conclude Appellant’s PCRA petition was
timely filed and he is entitled to resentencing, in light of Miller,
Montgomery and Secreti.5 Accordingly, the PCRA court’s April 28, 2015
order is reversed, the October 6, 1977 judgment of sentence is vacated, and
the case is remanded for resentencing, consistent with this memorandum.
Order reversed. Judgment of sentence vacated. Case remanded for
resentencing. Motion for leave to submit supplemental authority granted.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/21/2016
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4
We note that the General Assembly passed Section 1102.1 in October 2012
to address Miller, which provides new mandatory minimum sentences for
juveniles convicted of first-degree murder. However, Section 1102.1’s text
limits its application to those “convicted after June 24, 2012[.]” 18
Pa.C.S.A. § 1102.1(a), (c).
5
On remand, the PCRA court shall appoint counsel for Appellant, as it is
axiomatic that sentencing is a critical stage of a criminal proceeding,
requiring counsel. See generally Commonwealth v. Phillips, 93 A.3d
847, 854 (Pa. Super. 2014) (citation omitted).
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