J-S12010-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
AQUIL TILLMAN
Appellant No. 1378 EDA 2015
Appeal from the PCRA Order April 27, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0403711-1997
BEFORE: MUNDY, J., OLSON, J., and STRASSBURGER, J.*
MEMORANDUM BY MUNDY, J.: FILED APRIL 11, 2016
Appellant, Aquil Tillman, appeals pro se from the April 27, 2015 order
dismissing, as untimely, his second petition for relief filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful
review, we reverse the PCRA court’s order, vacate the judgment of sentence,
and remand for resentencing.1
On August 10, 1999, the trial court imposed an aggregate sentence of
life imprisonment without the possibility of parole, after Appellant was found
guilty of one count each of first-degree murder, aggravated assault, robbery, ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 This Court initially affirmed the PCRA court’s order in a judgment order on January 22, 2016. Appellant filed a timely application for reconsideration on February 4, 2016. On March 8, 2016, this Court entered an order granting panel reconsideration, and this Court’s prior judgment order was withdrawn. J-S12010-16
criminal conspiracy, and possession of an instrument of a crime. 2 The
parties agree that Appellant was under 18 years of age at the time of the
offense. Appellant’s Brief at 8; Commonwealth’s Brief at 9. This Court
affirmed Appellant’s judgment of sentence on April 16, 2001, and our
Supreme Court denied Appellant’s petition for allowance of appeal on
September 25, 2001. Commonwealth v. Tillman, 778 A.2d 739 (Pa.
Super. 2001) (unpublished memorandum), appeal denied, 790 A.2d 1016
(Pa. 2001). As Appellant did not seek a writ of certiorari from the United
States Supreme Court, his judgment of sentence became final on December
24, 2001 when the period for filing a certiorari petition expired. See 42
Pa.C.S.A. § 9545(b)(3) (stating, “a judgment becomes final at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review[]”); U.S. Sup. Ct. R. 13(1) (stating,
“[a] petition for a writ of certiorari seeking review of a judgment of a lower
state court that is subject to discretionary review by the state court of last
resort is timely when it is filed with the Clerk within 90 days after entry of
the order denying discretionary review[]”).3 Appellant filed the instant
____________________________________________ 2 18 Pa.C.S.A. §§ 2502(a), 2702(a), 3701(a), 903(a), and 907(a), respectively. 3 We note Appellant filed his first PCRA petition on June 11, 2003. The PCRA court dismissed said petition on January 7, 2005. This Court affirmed on (Footnote Continued Next Page)
-2- J-S12010-16
petition on June 23, 2010; as a result, it was facially untimely. See
generally 42 Pa.C.S.A. § 9545(b)(1). Relevant to this appeal, Appellant
amended his PCRA petition on August 17, 2012, to include a claim based on
the United States Supreme Court’s decision in Miller v. Alabama, 132 S.
Ct. 2455 (2012).
Instantly, Appellant argues that his petition is timely under the new
constitutional right exception because the United States Supreme Court’s
decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), should be
retroactively applied. Appellant’s Brief at 8-11. In Miller, the Supreme
Court held the Cruel and Unusual Punishment Clause of the Federal
Constitution forbids the imposition of a mandatory sentence of life
imprisonment without the possibility of parole upon a minor, even for a
homicide. Miller, supra at 2460. On January 25, 2016, the Supreme Court
decided Montgomery v. Louisiana, 136 S. Ct. 718 (2016), which
concluded that Miller is to be applied retroactively to cases on state
collateral review. Montgomery, supra at 736.
Given that Appellant is correct that Miller is retroactive to cases on
collateral review, we now address whether we may afford him a remedy at
this juncture. Section 9545(b)(1)(iii) permits an exception to the PCRA
_______________________ (Footnote Continued)
September 16, 2005, and Appellant did not file a petition for allowance of appeal with our Supreme Court. Commonwealth v. Tillman, 888 A.2d 12 (Pa. Super. 2005) (unpublished memorandum).
-3- J-S12010-16
time-bar when the petition in question alleges and proves “the right asserted
is a constitutional right that was recognized by the Supreme Court of the
United States or the Supreme Court of Pennsylvania after the time period
provided in this section and has been held by that court to apply
retroactively.” 42 Pa.C.S.A. § 9545(b)(1)(iii) (emphasis added). In
Commonwealth v. Abdul-Salaam, 812 A.2d 497 (Pa. 2002), our Supreme
Court held that the General Assembly’s use of the past tense in the phrase
“has been held” in Section 9545(b)(1)(iii) means that the applicable
“retroactivity determination must exist at the time that the petition is filed.”
Abdul-Salaam, supra at 502. As noted above, Appellant’s petition was
initially filed on July 2, 2010 and amended to include Miller on July 26,
2012, but Montgomery was not decided until January 25, 2016.
However, on February 9, 2016, this Court examined Abdul-Salaam
and held that “[t]he date of the Montgomery decision (January 25, 2016,
as revised on January 27, 2016) will control for purposes of the 60-day rule
in Section 9545(b)(2).” Commonwealth v. Secreti, --- A.3d ---, 2016 WL
513341, at *6 (Pa. Super. 2016). The Court explained that this was
necessary to “harmonize the PCRA requirements with Montgomery, Miller,
and Abdul-Salaam and simultaneously achieve the justice this law was
designed to promote.” Id. at *5. Therefore, consistent with Secreti,
-4- J-S12010-16
Appellant’s petition was timely and Miller does apply to his case.4
Furthermore, as noted above, Appellant was given a mandatory sentence of
life imprisonment without the possibility of parole, and the Commonwealth
acknowledges that Appellant was a minor at the time of the offense.
Appellant’s Brief at 8; Commonwealth’s Brief at 9. As a result, Appellant is
entitled to resentencing, consistent with Montgomery, Miller, and
Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013).5
Based on the foregoing, we conclude Appellant’s PCRA petition was
timely filed and he is entitled to resentencing, in light of Miller,
Montgomery and Secreti.6 Accordingly, the PCRA court’s April 27, 2015
order is reversed, the August 10, 1999 judgment of sentence is vacated, and
the case is remanded for resentencing, consistent with this memorandum.
____________________________________________ 4 In its initial brief, the Commonwealth argued that Appellant may not seek a remand even if Miller were retroactive based on the text of Section 9545(b)(1)(iii) and our Supreme Court’s decision in Abdul-Salaam. Commonwealth’s Brief at 8 n.1.
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J-S12010-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
AQUIL TILLMAN
Appellant No. 1378 EDA 2015
Appeal from the PCRA Order April 27, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0403711-1997
BEFORE: MUNDY, J., OLSON, J., and STRASSBURGER, J.*
MEMORANDUM BY MUNDY, J.: FILED APRIL 11, 2016
Appellant, Aquil Tillman, appeals pro se from the April 27, 2015 order
dismissing, as untimely, his second petition for relief filed pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful
review, we reverse the PCRA court’s order, vacate the judgment of sentence,
and remand for resentencing.1
On August 10, 1999, the trial court imposed an aggregate sentence of
life imprisonment without the possibility of parole, after Appellant was found
guilty of one count each of first-degree murder, aggravated assault, robbery, ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 This Court initially affirmed the PCRA court’s order in a judgment order on January 22, 2016. Appellant filed a timely application for reconsideration on February 4, 2016. On March 8, 2016, this Court entered an order granting panel reconsideration, and this Court’s prior judgment order was withdrawn. J-S12010-16
criminal conspiracy, and possession of an instrument of a crime. 2 The
parties agree that Appellant was under 18 years of age at the time of the
offense. Appellant’s Brief at 8; Commonwealth’s Brief at 9. This Court
affirmed Appellant’s judgment of sentence on April 16, 2001, and our
Supreme Court denied Appellant’s petition for allowance of appeal on
September 25, 2001. Commonwealth v. Tillman, 778 A.2d 739 (Pa.
Super. 2001) (unpublished memorandum), appeal denied, 790 A.2d 1016
(Pa. 2001). As Appellant did not seek a writ of certiorari from the United
States Supreme Court, his judgment of sentence became final on December
24, 2001 when the period for filing a certiorari petition expired. See 42
Pa.C.S.A. § 9545(b)(3) (stating, “a judgment becomes final at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review[]”); U.S. Sup. Ct. R. 13(1) (stating,
“[a] petition for a writ of certiorari seeking review of a judgment of a lower
state court that is subject to discretionary review by the state court of last
resort is timely when it is filed with the Clerk within 90 days after entry of
the order denying discretionary review[]”).3 Appellant filed the instant
____________________________________________ 2 18 Pa.C.S.A. §§ 2502(a), 2702(a), 3701(a), 903(a), and 907(a), respectively. 3 We note Appellant filed his first PCRA petition on June 11, 2003. The PCRA court dismissed said petition on January 7, 2005. This Court affirmed on (Footnote Continued Next Page)
-2- J-S12010-16
petition on June 23, 2010; as a result, it was facially untimely. See
generally 42 Pa.C.S.A. § 9545(b)(1). Relevant to this appeal, Appellant
amended his PCRA petition on August 17, 2012, to include a claim based on
the United States Supreme Court’s decision in Miller v. Alabama, 132 S.
Ct. 2455 (2012).
Instantly, Appellant argues that his petition is timely under the new
constitutional right exception because the United States Supreme Court’s
decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), should be
retroactively applied. Appellant’s Brief at 8-11. In Miller, the Supreme
Court held the Cruel and Unusual Punishment Clause of the Federal
Constitution forbids the imposition of a mandatory sentence of life
imprisonment without the possibility of parole upon a minor, even for a
homicide. Miller, supra at 2460. On January 25, 2016, the Supreme Court
decided Montgomery v. Louisiana, 136 S. Ct. 718 (2016), which
concluded that Miller is to be applied retroactively to cases on state
collateral review. Montgomery, supra at 736.
Given that Appellant is correct that Miller is retroactive to cases on
collateral review, we now address whether we may afford him a remedy at
this juncture. Section 9545(b)(1)(iii) permits an exception to the PCRA
_______________________ (Footnote Continued)
September 16, 2005, and Appellant did not file a petition for allowance of appeal with our Supreme Court. Commonwealth v. Tillman, 888 A.2d 12 (Pa. Super. 2005) (unpublished memorandum).
-3- J-S12010-16
time-bar when the petition in question alleges and proves “the right asserted
is a constitutional right that was recognized by the Supreme Court of the
United States or the Supreme Court of Pennsylvania after the time period
provided in this section and has been held by that court to apply
retroactively.” 42 Pa.C.S.A. § 9545(b)(1)(iii) (emphasis added). In
Commonwealth v. Abdul-Salaam, 812 A.2d 497 (Pa. 2002), our Supreme
Court held that the General Assembly’s use of the past tense in the phrase
“has been held” in Section 9545(b)(1)(iii) means that the applicable
“retroactivity determination must exist at the time that the petition is filed.”
Abdul-Salaam, supra at 502. As noted above, Appellant’s petition was
initially filed on July 2, 2010 and amended to include Miller on July 26,
2012, but Montgomery was not decided until January 25, 2016.
However, on February 9, 2016, this Court examined Abdul-Salaam
and held that “[t]he date of the Montgomery decision (January 25, 2016,
as revised on January 27, 2016) will control for purposes of the 60-day rule
in Section 9545(b)(2).” Commonwealth v. Secreti, --- A.3d ---, 2016 WL
513341, at *6 (Pa. Super. 2016). The Court explained that this was
necessary to “harmonize the PCRA requirements with Montgomery, Miller,
and Abdul-Salaam and simultaneously achieve the justice this law was
designed to promote.” Id. at *5. Therefore, consistent with Secreti,
-4- J-S12010-16
Appellant’s petition was timely and Miller does apply to his case.4
Furthermore, as noted above, Appellant was given a mandatory sentence of
life imprisonment without the possibility of parole, and the Commonwealth
acknowledges that Appellant was a minor at the time of the offense.
Appellant’s Brief at 8; Commonwealth’s Brief at 9. As a result, Appellant is
entitled to resentencing, consistent with Montgomery, Miller, and
Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013).5
Based on the foregoing, we conclude Appellant’s PCRA petition was
timely filed and he is entitled to resentencing, in light of Miller,
Montgomery and Secreti.6 Accordingly, the PCRA court’s April 27, 2015
order is reversed, the August 10, 1999 judgment of sentence is vacated, and
the case is remanded for resentencing, consistent with this memorandum.
____________________________________________ 4 In its initial brief, the Commonwealth argued that Appellant may not seek a remand even if Miller were retroactive based on the text of Section 9545(b)(1)(iii) and our Supreme Court’s decision in Abdul-Salaam. Commonwealth’s Brief at 8 n.1. However, in its answer to Appellant’s petition for reconsideration, the Commonwealth conceded that resentencing was required. Commonwealth’s Answer, 2/16/16, at 2. 5 We note that the General Assembly passed Section 1102.1 in October 2012 to address Miller, which provides new mandatory minimum sentences for juveniles convicted of first-degree murder. However, Section 1102.1’s text limits its application to those “convicted after June 24, 2012[.]” 18 Pa.C.S.A. § 1102.1(a), (c). 6 On remand, the PCRA court shall appoint counsel for Appellant, as it is axiomatic that sentencing is a critical stage of a criminal proceeding, requiring counsel. See generally Commonwealth v. Phillips, 93 A.3d 847, 854 (Pa. Super. 2014) (citation omitted).
-5- J-S12010-16
Order reversed. Judgment of sentence vacated. Case remanded for
resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/11/2016
-6-