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

v. WILLIAM R. SHEPPARD Appellant No. 1545 EDA 2015

Appeal from the PCRA Order April 28 , 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

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BEFORE: MUNDY, J., OLSON, J., and STRASSBURGER, J. *
MEMORANDUM BY MUNDY, J.: FILED March 21, 2016 Appellant, William R. Sheppard, appeals pro se from the April 28, 2015 order, dismissing as untimely, his petition for relief filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541

- 9 546. After careful review, we reverse the PCRA court’s order, vacate the judgment of sentence, and remand for resentencing. On October 6, 1977, the trial court imposed a mandatory, aggregate sentence of life imprisonment without the possibility of parole , after Appellant was found guilty of one count each of first

- degree murder and possession of an instrument of a crime. 1 The parties agree that Appellant

____________________________________________ * Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2502(a) and 907(a), respectively.J

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was under 18 years of age at the time of the offense. Appellant’s Brief at 2; Commonwealth’s Brief a t 7. This Court affirmed Appellant’s judgment of sentence on September 7, 1979, and our Supreme Court denied Appellant’s petition for allowance of appeal on February 4, 1980. Commonwealth v. Shepherd , 409 A.2d 894 (Pa. Super. 1979). 2 As Appellant did no t seek a writ of certiorari from the United States Supreme Court, his judgment of sentence became final in 1980 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[]”)

. Appellant filed petitions for post

- conviction relief in 1980, 1986, 1992, 1997, and 2006, none of which garnered him any relief. Appellant filed the instant petition on July 2, 2010 ; as a result, it was facially untimely. See id. § 9545(b)(1) (stating, “ [a]ny petition under this subchapter, including a second or subseque nt petition, shall be filed within one year of the date the judgment becomes final []”). Relevant to this appeal, Appellant amended his PCRA petition on July 26, 2012 to include a claim based on the United States Supreme Court’s decision in Miller v. Alaba ma , 132 S. Ct. 2455 (2012).

____________________________________________ 2 We note that Appellant’s last name is spelled differently in our opinion from his direct appeal. We further observe that a table citation is not available for our Supreme Court’s denial of his allocatur petition on direct appeal.J

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Instantly, Appellant argues on appeal that his petition is timely under the new constitutional right exception at Section 9545(b)(1)(iii) because Miller applies retroactively to cases on collateral review. Appellant’s Brief at
4. 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 , sup ra 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. 3 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. The Commonwealth argues that Appellant may not seek a remand even if Miller were retroactive based on the text of Sect ion 9545(b)(1)(iii) and our Supreme Court’s decision in Commonwealth v. Abdul - Salaam , 812 A.2d 497 (Pa. 2002) . Commonwealth’s Brief at 7

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n.2. Section 9545(b)(1)(iii) permits an exception to the PCRA 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

____________________________________________ 3 Appellant’s “Motion for Leave to Submit Supplem ental Notice of Authority” is hereby granted.J

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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 Abdul - Salaam , 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 mus t 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. Sec reti , --- 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 , Appellant’s petition was timely and Miller does apply to his case. 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 Br ief at 2; Commonwealth’s Brief at 7. As a result, Appellant isJ

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entitled to resentencing, consistent with Montgomery , Miller , and Commonwealth v. Batts , 66 A.3d 286 (Pa. 2013). 4 Based on the foregoing, we conclude Appellant’s PCRA petition was timely file d and he is entitled to resentencing, in light of Miller , Montgomery and Secreti

. 5 Accordingly, the PCRA court’s April 28, 2015 order is reversed, the October 6, 1977 judgment of sentence is vacated, and the case is remanded for resentencing, consistent w ith this memorandum. Order reversed. Judgment of sentence vacated. Case remanded for resentencing. Motion for leave to submit supplemental authority granted. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/21/2016

____________________________________________ 4 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).

5 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).