J-S21022-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
TYRONE HENDERSON
Appellant No. 1984 EDA 2015
Appeal from the PCRA Order June 4, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1142831-1993
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED APRIL 12, 2016
Tyrone Henderson appeals from the trial court’s order denying, as
untimely, his fifth petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Because the United States Supreme
Court has declared that the holding of Miller v. Alabama, 132 S.Ct. 2455
(2012), is a substantive rule of constitutional law to which state collateral
review courts were required, as a constitutional matter, to give retroactive
effect, Montgomery v. Louisiana, 136 S.Ct. 718, 736 (filed January 25,
2016, as revised on January 27, 2016), we reverse and remand for
resentencing.1 ____________________________________________
* Former Justice specially assigned to the Superior Court. 1 Although Henderson has filed an application for remand based on the holding of Montgomery, we are bound to follow the procedure set forth by (Footnote Continued Next Page) J-S21022-16
Henderson was involved in a drug deal gone bad, which led to the
October 20, 1993 shooting death of Richard Marable (victim). At the time of
the offense, Henderson was seventeen years old. After a jury trial,
Henderson was convicted of first-degree murder2 and possessing an
instrument of crime (PIC).3 On November 14, 1994, Henderson was
sentenced to life imprisonment without the possibility of parole for first-
degree murder; no further penalty was imposed on the PIC conviction. 4
Henderson filed a direct appeal. Our Court affirmed his judgment of
sentence. Commonwealth v. Henderson, No. 4113 PHL 1994 (Pa. Super.
filed August 7, 1995). The Supreme Court subsequently denied Henderson’s
petition for allocatur.
On May 1, 1996, Henderson filed his first PCRA petition, pro se,
alleging various claims of ineffectiveness of counsel. Counsel was appointed
and filed an amended petition on Henderson’s behalf. The trial court denied
Henderson’s petition and our Court affirmed the denial of PCRA relief.
Henderson filed serial pro se PCRA petitions, dated August 23, 2000, _______________________ (Footnote Continued)
our Court in Commonwealth v. Secreti, 2016 PA Super. 28 (Pa. Super. 2016). 2 18 Pa.C.S. § 2502. 3 18 Pa.C.S. § 907. 4 The crime of involuntary manslaughter, a second PIC charge and a firearm offense were nolle prossed. Henderson was found not guilty of voluntary manslaughter.
-2- J-S21022-16
December 23, 2003, and January 4, 2004. All petitions were dismissed as
untimely filed. Those decisions were affirmed on appeal.
On July 9, 2010, Henderson filed the instant pro se PCRA petition, his
fifth, claiming that he is serving an illegal sentence under the Pennsylvania
and United States Constitutions based on the holding of Graham v. Florida,
130 S.Ct. 2011 (2010). On August 2, 2012 and December 13, 2013,
Henderson amended his petition to include reference to Miller, supra, and
the PCRA’s newly recognized constitutional right exception set forth in 42
Pa.C.S. § 9545(b)(1)(iii). On June 24, 2014, the PCRA court issued its
Pa.R.Crim.P. 907 notice of intent to dismiss Henderson’s petition without a
hearing based on its untimeliness and failure to prove an exception to the
timeliness provision of the PCRA. Henderson filed a response to the court’s
Rule 907 notice. On June 4, 2015, the court dismissed Henderson’s PCRA
petition. This timely pro se appeal follows.
On appeal, Henderson raises the following issues for our consideration:
(1) Did the trial court err in dismissing petitioner’s petition and all supplemental petitions as untimely?
(2) Did the trial court err in dismissing petitioner’s PCRA petition and all supplemental petitions when they invoked meritorious claims for Miller and Graham5 to be applied retroactively?
____________________________________________
5 We note that in Graham, the United States Supreme Court determined that a sentence of life without parole imposed upon a non-homicide juvenile offender violates the Eighth Amendment’s proscription against cruel and (Footnote Continued Next Page)
-3- J-S21022-16
(3) Did the trial court err in dismissing petitioner’s PCRA petition that raised ineffective[] assistance of counsel for offering bad advice that led to petitioner’s rejection of [a] plea deal?
(4) Should this Court hold petitioner’s PCRA petition in abeyance pending the United States Supreme Court’s decision in Montgomery v. Louisiana?6
With regard to Henderson’s first two claims raised on appeal, invoking
Miller, we conclude that he is entitled to relief based upon the United States
Supreme Court’s recent decision, Montgomery v. Louisiana, 136 S.Ct.
718. Although at the time Henderson filed his petition he was not entitled to
retroactive application of Miller, see Commonwealth v. Cunningham, 81
A.2d 1 (Pa. 2013),7 during the pendency of this appeal the United States
Supreme Court issued Montgomery, which concluded that the holding of
Miller is a substantive rule of constitutional law to which state collateral
review courts were required, as a constitutional matter, to give retroactive
effect. Id. at 736. _______________________ (Footnote Continued)
unusual punishment. Since Henderson was convicted of first-degree murder, this holding does not apply to him. 6 Because the United States Supreme Court rendered a decision in Montgomery since the filing of Henderson’s appeal, this claim is now moot. 7 In Cunningham, the Pennsylvania Supreme Court determined that the Miller holding did not apply retroactively to an inmate, serving a life sentence without parole, who has exhausted his direct appeal rights and is proceeding under the PCRA. Moreover, in Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013), our Court found that Miller did not qualify as a newly-discovered fact or newly recognized constitutional right under section 9545(b)(1)(ii) or (iii) of the PCRA. However, Cunningham, Cintora and their progeny are no longer good law as a result of Montgomery.
-4- J-S21022-16
The Supreme Court cautioned in Montgomery that a court has no
authority to leave in place a conviction or sentence that violates a
substantive rule like Miller, regardless of whether the conviction or sentence
became final before the rule was announced. Id. at 724. In Miller, supra,
the United States Supreme held that “the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without possibility of parole
for juvenile homicide offenders.” Miller, 132 S.Ct. at 2469. Moreover, the
Miller Court recognized that before sentencing juveniles, a judge or jury
must “have the opportunity to consider mitigating circumstances before
imposing the harshest possible penalty,” id. at 2476, by “tak[ing] into
account how children are different, and how those differences counsel
against irrevocably sentencing them to a lifetime in prison.” Id. at 2469.
In the wake of Montgomery, our Court issued a decision to reverse
and remand cases on collateral appeal where a petitioner claimed that he or
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J-S21022-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
TYRONE HENDERSON
Appellant No. 1984 EDA 2015
Appeal from the PCRA Order June 4, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1142831-1993
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED APRIL 12, 2016
Tyrone Henderson appeals from the trial court’s order denying, as
untimely, his fifth petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Because the United States Supreme
Court has declared that the holding of Miller v. Alabama, 132 S.Ct. 2455
(2012), is a substantive rule of constitutional law to which state collateral
review courts were required, as a constitutional matter, to give retroactive
effect, Montgomery v. Louisiana, 136 S.Ct. 718, 736 (filed January 25,
2016, as revised on January 27, 2016), we reverse and remand for
resentencing.1 ____________________________________________
* Former Justice specially assigned to the Superior Court. 1 Although Henderson has filed an application for remand based on the holding of Montgomery, we are bound to follow the procedure set forth by (Footnote Continued Next Page) J-S21022-16
Henderson was involved in a drug deal gone bad, which led to the
October 20, 1993 shooting death of Richard Marable (victim). At the time of
the offense, Henderson was seventeen years old. After a jury trial,
Henderson was convicted of first-degree murder2 and possessing an
instrument of crime (PIC).3 On November 14, 1994, Henderson was
sentenced to life imprisonment without the possibility of parole for first-
degree murder; no further penalty was imposed on the PIC conviction. 4
Henderson filed a direct appeal. Our Court affirmed his judgment of
sentence. Commonwealth v. Henderson, No. 4113 PHL 1994 (Pa. Super.
filed August 7, 1995). The Supreme Court subsequently denied Henderson’s
petition for allocatur.
On May 1, 1996, Henderson filed his first PCRA petition, pro se,
alleging various claims of ineffectiveness of counsel. Counsel was appointed
and filed an amended petition on Henderson’s behalf. The trial court denied
Henderson’s petition and our Court affirmed the denial of PCRA relief.
Henderson filed serial pro se PCRA petitions, dated August 23, 2000, _______________________ (Footnote Continued)
our Court in Commonwealth v. Secreti, 2016 PA Super. 28 (Pa. Super. 2016). 2 18 Pa.C.S. § 2502. 3 18 Pa.C.S. § 907. 4 The crime of involuntary manslaughter, a second PIC charge and a firearm offense were nolle prossed. Henderson was found not guilty of voluntary manslaughter.
-2- J-S21022-16
December 23, 2003, and January 4, 2004. All petitions were dismissed as
untimely filed. Those decisions were affirmed on appeal.
On July 9, 2010, Henderson filed the instant pro se PCRA petition, his
fifth, claiming that he is serving an illegal sentence under the Pennsylvania
and United States Constitutions based on the holding of Graham v. Florida,
130 S.Ct. 2011 (2010). On August 2, 2012 and December 13, 2013,
Henderson amended his petition to include reference to Miller, supra, and
the PCRA’s newly recognized constitutional right exception set forth in 42
Pa.C.S. § 9545(b)(1)(iii). On June 24, 2014, the PCRA court issued its
Pa.R.Crim.P. 907 notice of intent to dismiss Henderson’s petition without a
hearing based on its untimeliness and failure to prove an exception to the
timeliness provision of the PCRA. Henderson filed a response to the court’s
Rule 907 notice. On June 4, 2015, the court dismissed Henderson’s PCRA
petition. This timely pro se appeal follows.
On appeal, Henderson raises the following issues for our consideration:
(1) Did the trial court err in dismissing petitioner’s petition and all supplemental petitions as untimely?
(2) Did the trial court err in dismissing petitioner’s PCRA petition and all supplemental petitions when they invoked meritorious claims for Miller and Graham5 to be applied retroactively?
____________________________________________
5 We note that in Graham, the United States Supreme Court determined that a sentence of life without parole imposed upon a non-homicide juvenile offender violates the Eighth Amendment’s proscription against cruel and (Footnote Continued Next Page)
-3- J-S21022-16
(3) Did the trial court err in dismissing petitioner’s PCRA petition that raised ineffective[] assistance of counsel for offering bad advice that led to petitioner’s rejection of [a] plea deal?
(4) Should this Court hold petitioner’s PCRA petition in abeyance pending the United States Supreme Court’s decision in Montgomery v. Louisiana?6
With regard to Henderson’s first two claims raised on appeal, invoking
Miller, we conclude that he is entitled to relief based upon the United States
Supreme Court’s recent decision, Montgomery v. Louisiana, 136 S.Ct.
718. Although at the time Henderson filed his petition he was not entitled to
retroactive application of Miller, see Commonwealth v. Cunningham, 81
A.2d 1 (Pa. 2013),7 during the pendency of this appeal the United States
Supreme Court issued Montgomery, which concluded that the holding of
Miller is a substantive rule of constitutional law to which state collateral
review courts were required, as a constitutional matter, to give retroactive
effect. Id. at 736. _______________________ (Footnote Continued)
unusual punishment. Since Henderson was convicted of first-degree murder, this holding does not apply to him. 6 Because the United States Supreme Court rendered a decision in Montgomery since the filing of Henderson’s appeal, this claim is now moot. 7 In Cunningham, the Pennsylvania Supreme Court determined that the Miller holding did not apply retroactively to an inmate, serving a life sentence without parole, who has exhausted his direct appeal rights and is proceeding under the PCRA. Moreover, in Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013), our Court found that Miller did not qualify as a newly-discovered fact or newly recognized constitutional right under section 9545(b)(1)(ii) or (iii) of the PCRA. However, Cunningham, Cintora and their progeny are no longer good law as a result of Montgomery.
-4- J-S21022-16
The Supreme Court cautioned in Montgomery that a court has no
authority to leave in place a conviction or sentence that violates a
substantive rule like Miller, regardless of whether the conviction or sentence
became final before the rule was announced. Id. at 724. In Miller, supra,
the United States Supreme held that “the Eighth Amendment forbids a
sentencing scheme that mandates life in prison without possibility of parole
for juvenile homicide offenders.” Miller, 132 S.Ct. at 2469. Moreover, the
Miller Court recognized that before sentencing juveniles, a judge or jury
must “have the opportunity to consider mitigating circumstances before
imposing the harshest possible penalty,” id. at 2476, by “tak[ing] into
account how children are different, and how those differences counsel
against irrevocably sentencing them to a lifetime in prison.” Id. at 2469.
In the wake of Montgomery, our Court issued a decision to reverse
and remand cases on collateral appeal where a petitioner claimed that he or
she was entitled to relief pursuant to Miller. See Commonwealth v.
Secreti, 2016 PA Super 28 (Pa. Super. 2016) (interpreting Montgomery as
making retroactivity under Miller effective as of the date of the Miller
decision).
Accordingly, because Henderson was a juvenile at the time of the
instant offense, his life sentence without parole is, by definition, unlawful
under Miller and Montgomery. Therefore, we reverse the order of the
PCRA court and remand this case for resentencing.
-5- J-S21022-16
In his final claim on appeal, Henderson asserts that counsel was
ineffective for advising him to go to trial, where he ultimately received a
sentence of life without parole, rather than accept a plea offer of 10-20
years’ incarceration. Because Henderson did not raise this claim in his
petition and also had the opportunity to raise it in his previously filed four
petitions, it is waived. Commonwealth v. Lowe, 444 A.2d 739 (Pa. Super.
1982); 42 Pa.C.S. § 9544(b) (“an issue is waived [under the PCRA] if the
petitioner could have raised it but failed to do so . . . on appeal or in a prior
state postconviction proceeding.”).
Order reversed. Remanded for resentencing. Jurisdiction
relinquished.8
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/12/2016
8 We recognize that while Henderson’s first-degree murder sentence, itself, may be unlawful, his underlying conviction stands.
-6-