Com. v. Buck, T.

• Court: Superior Court of Pennsylvania
• Decided: October 4, 2016
• Docket: 2024 MDA 2015
• Status: Unpublished

Opinion

J-S34015-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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, J-S34015-16

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In an unpublished memorandum filed on February 15, 2012, a panel of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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