Com. v. McMillan, M.

Opinion

J-S44043-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

MICHAEL MCMILLAN

Appellant No. 456 WDA 2015

Appeal from the PCRA Order March 3, 2015 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0006930-2007

BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.: FILED MAY 16, 2016

Michael McMillan filed a petition for allowance of appeal with our

Supreme Court from our judgment order, which affirmed the trial court’s

order dismissing, as untimely, his petition brought pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. The Supreme

Court of Pennsylvania remanded for further proceedings consistent with

Montgomery v. Louisiana, 136 S. Ct. 718 (2016). Accordingly, we

reverse and remand.

On July 16, 2008, the trial court sentenced McMillan to life

imprisonment without the possibility of parole for second-degree murder and

an additional aggregate sentence of 12½ to 25 years’ imprisonment for

robbery, aggravated assault, and possession of a firearm by a minor.

McMillan was seventeen years old when he committed the underlying J-S44043-15

offenses. McMillan filed a direct appeal to this Court, which affirmed his

judgment of sentence on May 5, 2010. McMillan did not file a petition for

allowance of appeal.

On September 29, 2014, McMillan filed his second pro se PCRA

petition. Counsel was appointed, and filed an amended petition.1 In that

petition McMillan claimed that he was entitled to relief, in the form of

resentencing, pursuant to Miller v. Alabama, 132 S. Ct. 2455 (2012),

which held that sentencing a person who was a juvenile at the time of the

offense to a mandatory term of life imprisonment without parole for

homicide violated the Eighth Amendment’s restriction on cruel and unusual

punishment.

On February 5, 2015, the court issued an order notifying McMillan of

its intention to dismiss his PCRA petition without a hearing pursuant to

Pa.R.Crim.P. 907(1) on the basis that the petition was untimely, and

accordingly, the court lacked jurisdiction to consider it. McMillan filed a

response, and on March 3, 2015, the court dismissed the petition. McMillan

filed an appeal; our Court affirmed the denial of PCRA relief on August 4,

2015, concluding that Miller does not apply retroactively to cases on

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1 McMillan filed his first pro se PCRA petition on February 14, 2011, which the court dismissed without a hearing by order docketed August 8, 2011. McMillan filed an appeal, and this Court affirmed the order on November 26, 2013. The Supreme Court denied McMillan’s petition for allowance of appeal on May 8, 2014.

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collateral appeal. See Commonwealth v. Cunningham, 81 A.3d 1 (Pa.

2013).

On September 9, 2015, McMillan petitioned our Supreme Court for

allowance of appeal. On February 24, 2016, the Pennsylvania Supreme

Court vacated our Court’s disposition and remanded this matter to this Court

for further proceedings consistent with Montgomery.

After the United States Supreme Court’s holding in Montgomery,

Cunningham’s tenet that Miller cannot be applied retroactively is no longer

good law in Pennsylvania. 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).

Here, the trial court sentenced McMillan, who was a juvenile at the

time of the offense, to a mandatory sentence of life imprisonment without

the possibility of parole. In light of the United States Supreme Court’s

recognition in Miller that such a sentence violates the Eighth Amendment’s

prohibition against cruel and unusual punishment, and the Court’s recent

retroactive application of Miller in Montgomery, we reverse the trial court’s

order and remand.

Order reversed. Case remanded. Jurisdiction relinquished.

Judge Stabile and Judge Jenkins concur in the result of this

Memorandum.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/16/2016

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