Com. v. Freeman, B.

Opinion

J-S50027-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

BRYAN ROBERT FREEMAN

Appellant No. 1757 EDA 2014

Appeal from the PCRA Order May 23, 2014 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0001077-1995

BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

JUDGMENT ORDER BY MUNDY, J.: FILED March 14, 2016

This case returns to this Court following remand from the Pennsylvania

Supreme Court. Specifically, on February 17, 2016, our Supreme Court

granted the petition for allowance of appeal filed by Appellant, Bryan Robert

Freeman, vacated our previous order affirming the dismissal of Appellant’s

third petition for relief filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546, and remanded the case to us for

further proceedings consistent with Montgomery v. Louisiana, 136 S. Ct.

718 (2016). After careful review, we reverse the PCRA court’s order

dismissing Appellant’s PCRA and remand for resentencing.

Relevant to this appeal, on December 7, 1995, the trial court imposed

a mandatory sentence of life imprisonment without the possibility of parole J-S50027-15

after Appellant pled guilty to first-degree murder,1 committed when he was

17 years old.2 Appellant’s amended third PCRA petition, which is the subject

of this appeal, asserts the newly recognized constitutional right exception to

the PCRA time-bar in Section 9545(b)(1)(iii). Appellant’s Amended PCRA

Petition, 8/16/12, at 2.3 Appellant argues that the United States Supreme

Court’s decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), should be

retroactively applied. Appellant’s Pro Se Answer to Counsel’s Petition to

Withdraw, 5/13/15, at 2-3. On May 23, 2014, the PCRA court dismissed the

amended petition. On October 21, 2015, we affirmed the PCRA court’s

order. Commonwealth v. Freeman, --- A.3d ---, 2015 WL 6392468 (Pa.

Super. 2015) (unpublished memorandum), vacated, --- A.3d ---, 870 MAL

2015 (Pa. 2016). Appellant filed a petition for allowance of appeal with our

Supreme Court on November 19, 2015. While that petition was pending, on

January 25, 2016, the United States Supreme Court announced its decision

in Montgomery, holding that Miller’s prohibition on mandatory life ____________________________________________

1 18 Pa.C.S.A. § 2502(a). 2 Appellant did not file a direct appeal. On April 23, 1997, Appellant withdrew his first, timely PCRA. Subsequently, on December 28, 2006, this Court dismissed Appellant’s appeal of the dismissal of his second PCRA petition due to Appellant’s counsel’s failure to file a brief. Commonwealth v. Freeman, 335 EDA 2006 (Pa. Super. 2006). 3 We note that Appellant’s amended PCRA petition does not contain pagination. For ease of review, we have assigned each page a corresponding page number.

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imprisonment without the possibility of parole for juvenile offenders was a

new substantive rule that, under the Constitution, must be retroactive in

cases on state collateral review. Montgomery, supra at 732. Accordingly,

our Supreme Court vacated our prior order and remanded this case to us.

Moreover, this Court, in Commonwealth v. Secreti, --- A.3d ---, 2016 WL

513341 (Pa. Super. 2016), has held that Miller and Montgomery afford

relief to petitioners whose PCRA petitions based on Miller were on appeal

when Montgomery was announced. Secreti, supra at *5.

Based on the foregoing, Appellant is entitled to PCRA relief from his

unconstitutional sentence of mandatory life imprisonment without parole.

See Miller, supra at 2464; Montgomery, supra; Secreti, supra.

Accordingly, we reverse the PCRA court’s May 23, 2014 order dismissing

Appellant’s PCRA petition, vacate Appellant’s judgment of sentence, and

remand for resentencing in accordance with Miller and Commonwealth v.

Batts, 66 A.3d 286 (Pa. 2013).

Order reversed. Petition to withdraw as counsel denied. 4 Judgment of

sentence vacated. Case remanded for resentencing. Jurisdiction

relinquished.

____________________________________________

4 Our prior order also granted counsel’s petition to withdraw representation pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super 1988) (en banc). For the reasons explained herein, Appellant’s issue is meritorious and we now (Footnote Continued Next Page)

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/14/2016

_______________________ (Footnote Continued)

deny counsel’s petition. Further, we direct our Prothonotary to mail notice of our decision to Appellant’s counsel, Sean T. Poll, Esquire.

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