Com. v. Jones, L.

Opinion

J-S04043-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : LEVAR LEONARD JONES, : : Appellant : No. 1442 MDA 2014

Appeal from the PCRA Order Entered August 11, 2014 in the Court of Common Pleas of Lancaster County, Criminal Division, at No(s): CP-36-CR-0003302-1994

BEFORE: BOWES, ALLEN, and STRASSBURGER,* JJ.

JUDGMENT ORDER BY STRASSBURGER, J.: FILED APRIL 13, 2016

This matter comes before us on remand from the Pennsylvania

Supreme Court, following its entry of an order vacating our affirmance of the

dismissal of the petition filed by Levar Leonard Jones (Appellant) pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We now

reverse the PCRA court’s order, vacate Appellant’s judgment of sentence,

and remand for resentencing.

In 1995, Appellant was sentenced to life imprisonment without

possibility of parole following his conviction for second-degree murder based

upon events that took place when Appellant was 14 years old. The order

from which Appellant appealed denied his request for PCRA relief based upon

the United States Supreme Court’s decision in Miller v. Alabama, 132 S.Ct.

*Retired Senior Judge assigned to the Superior Court. J-S04043-15

2455 (2012). In that case, the Court held unconstitutional mandatory

sentences of life imprisonment without possibility of parole imposed upon

individuals who were juveniles at the time they committed homicides. The

PCRA court determined that Appellant did not properly invoke the newly-

recognized-constitutional-right exception to the PCRA’s one-year timeliness

requirement provided in 42 Pa.C.S. §9545(b)(1)(iii) because our Supreme

Court held in Commonwealth v. Cunningham, 81 A.3d 1, 11 (Pa. 2013),

that Miller does not apply retroactively. We affirmed based upon

Cunningham. Commonwealth v. Jones, 120 A.3d 1067 (Pa. Super. 2015)

(unpublished memorandum).

While Appellant’s subsequent petition for allowance of appeal to our

Supreme Court was pending, the U.S. Supreme Court decided in

Montgomery v. Louisiana, 136 S.Ct. 718 (2016), that Miller announced a

new substantive rule of law which applies retroactively. On February 24,

2016, our Supreme Court entered a per curiam order granting Appellant’s

petition for allowance of appeal, vacating this Court’s order, and remanding

for further proceedings consistent with Montgomery. Commonwealth v.

Jones, No. 313 MAL 2015, 2016 WL 732094, (Pa. Feb. 24, 2016).

Under Miller, Montgomery, and this Court’s decision in

Commonwealth v. Secreti, 2016 Pa. Super. 28, 2016 WL 513341 at *5

(Pa. Super. February 9, 2016), Appellant is entitled to PCRA relief in the

form of resentencing following judicial consideration of appropriate age-

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related factors. See Commonwealth v. Batts, 66 A.3d 286, 297 (Pa.

2013).1

Order reversed. Judgment of sentence vacated. Case remanded for

resentencing. Jurisdiction relinquished.

Judge Allen did not participate in the consideration or decision of this

judgment order.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/13/2016

1 [A]t a minimum [the sentencing court] should consider a juvenile’s age at the time of the offense, his diminished culpability and capacity for change, the circumstances of the crime, the extent of his participation in the crime, his family, home and neighborhood environment, his emotional maturity and development, the extent that familial and/or peer pressure may have affected him, his past exposure to violence, his drug and alcohol history, his ability to deal with the police, his capacity to assist his attorney, his mental health history, and his potential for rehabilitation.

Batts, 66 A.3d at 297 (quoting Commonwealth v. Knox, 50 A.3d 732, 745 (Pa. Super. 2012)).

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