J. S1100 9/16

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

COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF

PENNSYLVANIA v. : : SAMUEL GLADDEN, : No. 1572 EDA 2015 : Appellant :

Appeal from the PCR A Order, May 14, 2015, in the Court of Common Pleas of Philadelphia County Criminal Division at No. CP

- 51

- CR

- 0430781

- 1992

BEFORE: FORD ELLIOTT, P.J.E., OTT AND MUSMANNO, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 16, 2016 Samuel Gladden appeals, pro se , from t he May 14, 2015 order denying his third petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541

- 9546, following his convictions of

second

- degree murder and possession of an instrument of crime. 1 We
reverse and remand for r esentencing. On May 18, 1993, a jury convicted appellant, who was 16 years old at the time of the offense, of second

- degree murder and possession of an instrument of crime. On March 16, 1994, the trial court sentenced appellant to a mandatory sentence of life imprisonment without the possibility of parole. This court affirmed the judgment of sentence on September 26,

1 18 Pa.C.S.A. §§ 2502(b) and 907, respectively.J. S11009/16

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1995. See Commonwealth v. Gladden , 665 A.2d 1201 (Pa.Super. 1995) ( en banc ). The Supreme Court of Pennsylvania denied appellant’s petiti on for allowance of appeal on April 24, 1996. See Commonwealth v.

Gladden , 675 A.2d 1243 (Pa. 1996). On March 20, 1997, appellant filed his first petition pursuant to the PCRA. The trial court dismissed appellant’s petition on December 15, 1997. Appell ant filed a second PCRA petition on May 1, 2000, which the trial court dismissed as untimely on September 20, 2000. Appellant appealed the trial court’s dismissal, which we affirmed on May 18, 2001. See

Commonwealth v. Gladden , No. 2923 EDA 2000, unpubli shed memorandum (Pa.Super. filed May 18, 2001). The Supreme Court of Pennsylvania denied allowance of appeal on October 1, 2001. See

Commonwealth v. Gladden , 788 A.2d 373 (Pa. 2001). Appellant filed his third PCRA petition, which is at issue in the ins tant case, on July 2, 2010. On July 30, 2012, appellant filed an amended PCRA petition in response to the Supreme Court of the United States’ decision in

Miller v. Alabama , 132 S.Ct. 2455 (2012). On December 17, 2013, appellant motioned for leave to supp lement his petition for habeas corpus relief and filed an amended PCRA petition on that date. On June 24, 2014, the trial court notified appellant of its intent to dismiss his PCRA petition as untimely, pursuant to Pa.R.Crim.P. 907. The trial court dismi ssedJ. S11009/16

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appellant’s PCRA petition on May 14, 2015. Appellant filed a notice of appeal on May 26, 2015. Appellant raises the following issues for our review:

I. Should review be granted to determine if the Court of Common Pleas deprived appellant his due pro cess and equal protection rights when failing to accept appellant’s writ of habeas corpus and a PCRA petition, violating the United States Constitution 8 and 14 Amendment [sic]; Pennsylvania Constitution, Article I, Section 13; United Nations Convention on the Rights of the Child Article 37[?]

II. Should review be granted to determie [sic] if the Commonwealth Court of Common Pleas erred by allowing an unconstitutional sentence to stand which [is] a violation of Pennsylvania Constitution, Article I, Section 1, 9, 11, 13, 14, and the 25 [sic], also the United States Constitution, 8 th and 14 th Amendment [sic][?] Appellant’s brief at 3. The trial court acknowledged that appellant,

did not waive his Miller claim because he raised it within sixty days of the da te that Miller was decided[. However, appellant] still had the burden of establishing that [the trial court] had jurisdiction to address his claim. See Commonwealth v. Seskey , 86 A.3d 237, 241 (Pa.Super. 2014). [Appellant] did not meet his burden becaus e the Pennsylvania Supreme Court ruled that Miller did not create a new constitutional right that applies retroactively. Commonwealth v. Cunningham , 81 A.3d 1 (Pa. 2013), cert. denied , 134 S.Ct. 2724 (2014). Trial court opinion, 5/14/15 at 2.J. S11009/16

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Indeed, at the time of the trial court’s order and opinion dismissing appellant’s PCRA petition, Cunningham controlled all Miller claims filed pursuant to the PCRA, and our supreme court found that Miller protections did not apply retroactively in Pennsylvania. 2 Cu nningham , 81 A.3d at 11. While this appeal was pending in this court, however, the Supreme Court of

the United States announced its decision in Montgomery v. Louisiana , 136 S.Ct. 718 (2016). The Montgomery Court held that its decision in Miller

“announce d a substantive rule of constitutional law.” Id. at 734. Specifically, the Court stated that, “ Miller ’s conclusion that the sentence of life without parole is disproportionate for the vast majority of juvenile offenders raises a grave risk that many are being held in violation of the

Constitution.” Id. at 736. In order to prevent such harm, the Court found that substantive rules,

much like the rule announced in Miller , must be retroactive, “because [they] ‘“necessarily carr[y] a significant risk that a defendant”’

-- here, the vast majority of juvenile offenders

-- ‘“faces a punishment that the law cannot impose upon him.’” Id. at 734, quoting Schriro v. Summerlin , 542 U.S. 348, 352 (2004) (citations omitted). Therefore, Cunningham ’s tenet that

Miller cann ot be applied retroactively is no longer good law in Pennsylvania.

2 In Miller , the Supreme Court of the United States held that mandatory sentences of life imprisonment without the possibility of parole for juvenile offenders violated the Eighth Amendment. Miller , 132 S.Ct. at 2469.J. S11009/16

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A recent panel of this court analyzed the further implications of Montgomery on Pennsylvania case law.

We now turn our attention to the implications arising from [ Commonwealth v. Abdul - Sal aam , 812 A.2d 497, 502 (Pa.2002)], (holding: “[T]he language ‘has been held’ in 42 Pa.C.S. § 9545(b)(1)(iii) means that a retroactivity determination must exist at the time that the petition is filed ”) (emphasis added). The instant case represents an exa mple of the unique situation implicating those PCRA petitions seeking Miller relief which were filed in the time gap following Miller but before Montgomery

. . . . When Appellant filed his petition, the various jurisdictions were still trying to decide if Miller was available on collateral review but were doing so without the benefit of Montgomery

. Appellant's petition was ultimately decided under Cunningham , supra and denied. We recognize that similar “gap” cases are in the appellate system awaiting dis position .

. . . Therefore, we now hold that the best resolution of this dilemma is to interpret Montgomery as making retroactivity under Miller effective as of the date of the Miller decision. In this way, we satisfy the “has been held” conditional lan guage enunciated in Abdul – Salaam , supra
. Commonwealth v. Secreti , 2016 WL 513341 (Pa.Super. 2016) at *5

- 6 (citations reformatted). As a result, appellant has proven by a preponderance of the evidence that the right he is asserting is a constitutional rig ht recognized, in this case, by the Supreme Court of the United States to apply retroactively. The trial court sentenced appellant, who was 16 years old at the time of the offense, to a mandatory sentence of life imprisonment without the possibility ofJ. S11009/16

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pa role. In light of the 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 for

re - sentencing. Order reversed; case remanded for resentencing. Appellant’s motion for extraordinary relief is denied for mootness. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/16/2016