Com. v. Vessels, A.

Opinion

J-A21043-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ANDRE L. L. VESSELS

Appellant No. 419 EDA 2015

Appeal from the PCRA Order January 8, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001460-2008

BEFORE: ALLEN, J., MUNDY, J., and FITZGERALD, J.*

JUDGMENT ORDER BY MUNDY, J.: FILED MAY 04, 2016

This case returns to us following remand from the Pennsylvania

Supreme Court. Specifically, on February 24, 2016, our Supreme Court

granted the petition for allowance of appeal filed by Appellant, Andre L. L.

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

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 and remand for resentencing.

On November 21, 2008, the trial court imposed a mandatory sentence

of life imprisonment without the possibility of parole after a jury trial, at the

____________________________________________ * Former Justice specially assigned to the Superior Court. J-A21043-15

conclusion of which Appellant was found guilty of one count of second-

degree murder, possession of an instrument of a crime, and robbery,1

committed when he was 17 years old.2 Appellant’s amended timely first

PCRA petition, which is the subject of this appeal, asserts that the United

States Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455

(2012), should be retroactively applied. Appellant’s Amended PCRA Petition,

12/26/13, at ¶ 3.

On January 8, 2015, the PCRA court dismissed the amended petition.

On July 24, 2015, we affirmed the PCRA court’s order. Commonwealth v.

Vessels, 125 A.3d 459 (Pa. Super. 2015) (unpublished memorandum),

vacated, 132 A.3d 982 (Pa. 2016). Appellant filed a timely petition for

allowance of appeal with our Supreme Court on August 23, 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 imprisonment without the possibility of parole

for juvenile offenders was a new substantive rule that, under the

Constitution, must be applied retroactively in cases on state collateral

review. Montgomery, supra at 732. Accordingly, our Supreme Court ____________________________________________ 1 18 Pa.C.S.A. §§ 2502(b), 907(a), and 3701(a)(1)(i), respectively. 2 This Court affirmed Appellant’s judgment of sentence on January 26, 2010 and our Supreme Court denied allocatur on September 29, 2010. Commonwealth v. Vessels, 991 A.2d 363 (Pa. Super. 2010) (unpublished memorandum), appeal denied, 8 A.3d 345 (Pa. 2010).

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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), held that Miller and Montgomery afford relief to petitioners whose

PCRA petitions based on Miller were on appeal when Montgomery was

announced. Id. at *5.

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

unconstitutional sentence of mandatory life imprisonment without parole.

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

Accordingly, we reverse the PCRA court’s January 8, 2015 order, vacate

Appellant’s judgment of sentence, and remand for resentencing in

accordance with Montgomery, Miller, and Commonwealth v. Batts, 66

A.3d 286 (Pa. 2013).3

Order reversed. Judgment of sentence vacated. Case remanded for

resentencing. Jurisdiction relinquished.

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

case.

____________________________________________ 3 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 second-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(c).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/4/2016

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