J-S44016-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. DONALD ZOLLER, JR. Appellant No. 1676 WDA 2014

Appeal from the PCRA Order Dated October 3, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No: CP-02-CR-0004839-1986
BEFORE: LAZARUS, J., STABILE, J., and JENKINS, JJ. MEMORANDUM BY STABILE, J.: FILED JUNE 3, 2016 This case returns to this Court following a remand from our Supreme Court. On February 17, 2016, the Court granted the petition for allowance of appeal filed by Appellant, Donald Zoller, Jr., v acated our previous order affirming the dismissal of his third petition for r elief 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 con sistent with Montgomery v. Louisiana , 136 S. Ct. 718 (2016). Upon review, we reverse and remand. Briefly, as a 14 year-old, Appellant was charged a s an adult for three counts of criminal homicide for the stabbing deaths of his three neighbors. Appellant was convicted and sentenced to three conc urrent mandatory sentences of life imprisonment without the possibil ity of parole. AfterJ-S44016-15

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exhausting his direct appeal rights and filing two PCRA petitions, on July 31, 2012, 36 days after the Supreme Court of the United States issued Miller v. Alabama , 132 S. Ct. 2455 (2012), 1 Appellant filed a third PCRA petition, which is the subject of this appeal. Appellant ass erted that Miller applied to his case on collateral review. Relying on Commonwealth v. Cunningham , 81 A.3d 1 (Pa. 2013), 2 cert. denied sub nom. Cunningham v. Pennsylvania , 134 S. St. 2724 (2014), the PCRA court dismissed Appellant’s third PCRA petition. On August 21, 201 5, we affirmed the PCRA court’s order. Commonwealth v. Zoller , 131 A.3d 101 (Pa. Super. 2015) (unpublished memorandum), vacated , __ A.3d __, 2016 WL 634102 (Pa. 2016). Appellant filed a petition for allowance of appeal with our Supreme Court on September 17, 2015. While Appellant’s pet ition was pending, on January 25, 2016, the United Stated Supreme Court i ssued its decision in Montgomery , holding that Miller ’s prohibition against mandatory life sentences without the possibility of parole for juv enile offenders was a new

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1 The Court in Miller held that “ [m]andatory life without parole for those under the age of 18 at the time of their crimes vio lates the Eighth Amendment’s prohibition on ‘cruel and unusual punis hments.’” Miller , 132 S. Ct. at 2460 (emphasis added). 2 The Supreme Court held that Miller did not apply retroactively to cases on collateral appeal. Cunningham , 81 A.3d at 9-10 (noting that “nothing in [a]ppellant’s arguments persuades us that Miller ’s proscription of imposition of mandatory life-without-parole sentences upon off enders under the age of eighteen at the time their crimes were committed mu st be extended to those whose judgments of sentence were final as of the ti me of Miller ’s announcement”).J-S44016-15

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substantive rule that, under the United States Cons titution, must be retroactive in cases on state collateral review. Montgomery , supra at 732. As a result, our Supreme Court vacated our prior or der and remanded this case to us. In so doing, the Court ordered that, “ [t]o the extent necessary, leave is to be granted to amend the post-conviction petition to assert the jurisdictional provision of the Post Conviction Rel ief Act extending to the recognition of constitutional rights by the Supreme Court of the United States which it deems to be retroactive. See 42 Pa.C.S.A. § 9545(b)(1)(iii).” Commonwealth v. Zoller , 376 WAL 2015 (Pa. filed February 17, 2016). Therefore, consistent with our Supreme Court’s direction in light of Montgomery , we reverse the PCRA court’s order dismissing Appellant’s third PCRA petition and rema nd the case to the PCRA court for further proceedings consistent with our S upreme Court’s order and this Memorandum. Order reversed. Case remanded. Jurisdiction reli nquished. Judge Jenkins joins this memorandum. Judge Lazarus files a concurring statement. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/3/2016J-S44016-15

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