J-S63031-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

STEVE JONES, :

:

Appellant : No. 777 EDA 2015

Appeal from the PCRA Order February 18, 2015

in the Court of Common Pleas of Delaware County,

Criminal Division, No. CP-23-CR-0001881-2002

BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED APRIL 11, 2016

Steve Jones (“Jones”) appeals from the Order dismissing his “Petition 

for Habeas Corpus Relief Under Article I, Section 14 of the Pennsylvania 

Constitution and for Post-Conviction Relief Under the Post Conviction Relief 

Act [‘PCRA’1].” We reverse the Order, vacate Jones’s judgment of sentence, 

and remand for resentencing.

Following a jury trial, Jones was found guilty of robbery and second 

degree murder in connection with the robbery and shooting of an ice cream 

truck driver in Chester on April 20, 2002. Jones was sixteen years old at 

the time of the murder. The trial court sentenced Jones to a mandatory 

term of life in prison. On June 22, 2004, this Court affirmed the judgment of 

sentence. Commonwealth v. Jones, 858 A.2d 1276 (Pa. Super. 2004) 

(unpublished memorandum).

 

1 See 42 Pa.C.S.A. §§ 9541-9546.
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Jones filed a PCRA Petition on December 14, 2007. The PCRA court 

dismissed the Petition as untimely filed, and this Court affirmed. See 

Commonwealth v. Jones, 998 A.2d 1005 (Pa. Super. 2010) (unpublished 

memorandum). On June 29, 2010, Jones filed another PCRA Petition. The 

PCRA court dismissed the Petition on August 3, 2010. This Court affirmed 

the dismissal. See Commonwealth v. Jones, 106 A.3d 159 (Pa. Super. 

2014) (unpublished memorandum).

Jones filed the instant counseled Petition on October 14, 2014. In the 

Petition, Jones argued that the United States Supreme Court’s decision in 

Miller v. Alabama, 132 S. Ct. 2455 (2012),2rendered his sentence illegal. 

The PCRA court treated the Petition as a PCRA Petition.3 After issuing a 

Notice of Intent to Dismiss pursuant to Pa.R.Crim.P. 907, the PCRA court 

dismissed the Petition. This panel affirmed the PCRA court’s dismissal based 

 

2

In Miller, the Supreme Court held that sentencing schemes, which 

mandate life in prison without parole for defendants who committed their 

crimes while under the age of eighteen, violates the Eighth Amendment’s 

prohibition on “cruel and unusual punishments.” Miller, 132 S. Ct. at 2460. 

The Supreme Court reasoned that, in light of a juvenile’s diminished 

culpability and heightened capacity for change, mandatory juvenile 

sentencing schemes pose too great a risk of disproportionate punishment, in 

contravention of the Eighth Amendment. Id. at 2469.

3 The PCRA subsumes the remedy of habeas corpus where the PCRA 

provides a remedy for the claim. See 42 Pa.C.S.A. § 9542. In his Petition, 

Jones challenges the legality of his sentence based upon the holding in 

Miller. See Commonwealth v. Seskey, 86 A.3d 237, 243 (Pa. Super. 

2014) (stating that issues pertaining to Miller raise a legality of sentence 

challenge). Thus, Jones’s claims were properly reviewed under the PCRA. 

See 42 Pa.C.S.A. § 9543(a)(2).
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on the untimeliness of the Petition,4and the fact that Jones had previously 

litigated his Miller claim. See Commonwealth v. Jones, 2015 WL 

7144822, at *2 (Pa. Super. 2015) (unpublished memorandum). Our panel 

also reiterated that the Miller decision did not implicate the newly 

recognized constitutional right exception codified at 42 Pa.C.S.A. 

§ 9545(b)(1)(iii), based upon our Supreme Court’s decision in 

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013).5 Jones, 2015 WL 

7144822, at *2.

Jones filed a Petition for Allowance of Appeal. On February 12, 2016, 

our Supreme Court granted the Petition, vacated this Court’s decision, and 

remanded for further proceedings based upon the United States Supreme 

Court’s decision in Montgomery v. Louisiana, 136 S. Ct. 718 (2016). See 

Commonwealth v. Jones, 2016 WL 594627, at *1 (Pa. 2016).

 

4 Under the PCRA, any PCRA petition “shall be filed within one year of the 

date the judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). A 

judgment of sentence becomes final “at the conclusion of direct review, 

including discretionary review in the Supreme Court of Pennsylvania, or at 

the expiration of time for seeking the review.” Id. § 9545(b)(3). Here, 

Jones’s Petition was facially untimely under the PCRA. However, 

Pennsylvania courts may consider an untimely petition if the appellant can 

explicitly plead and prove one of three exceptions set forth under 42 

Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any PCRA petition invoking one of these 

exceptions “shall be filed within 60 days of the date the claim could have 

been presented.” Id. § 9545(b)(2).

5

In Cunningham, the Pennsylvania Supreme Court ruled that Miller does 

not apply retroactively to juveniles in Pennsylvania whose judgments of 

sentence were final at the time Miller was decided. Cunningham, 81 A.3d 

at 11.
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In Montgomery, the United States Supreme Court held that its 

decision in Miller announced a substantive rule; thus, Miller applies 

retroactively. Montgomery, 136 S. Ct. at 734, 736; see also 

Commonwealth v. Secreti, 2016 PA Super 28, at **5-6 (Pa. Super. 2016) 

(noting that Montgomery rendered the Miller rule of law retroactive and 

that the date of the Montgomery decision will control for purposes of the 

60-day rule under section 9545(b)(2)).

Based upon Montgomery, we conclude that (1) Miller applies 

retroactively to Jones’s sentence; (2) Jones’s sentence is unconstitutional 

under Miller; and (3) Jones is entitled to a new sentencing hearing in
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accordance with Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013).6 See 

Secreti, 2016 PA Super 28, at **4-5.

Accordingly, we reverse the PCRA court’s Order dismissing Jones’s 

Petition, vacate Jones’s judgment of sentence, and remand for resentencing 

in accordance with Batts, supra.

Order reversed. Judgment of sentence vacated. Case remanded for 

resentencing. Jurisdiction relinquished.

Judge Donohue did not participate in the consideration or decision of 

this case.

 

6

“Miller requires only that there be judicial consideration of the appropriate 

age-related factors set forth in that decision prior to the imposition of a 

sentence of life imprisonment without the possibility of parole on a juvenile.” 

Batts, 66 A.3d at 296.

[A]t a minimum [the trial court] should consider a juvenile’s age 

at the time of the offense, his diminished culpability and capacity 

for change, the circumstances of the crime, the extent of his 

participation in the crime, his family, home and neighborhood 

environment, his emotional maturity and development, the 

extent that familial and/or peer pressure may have affected him, 

his past exposure to violence, his drug and alcohol history, his 

ability to deal with the police, his capacity to assist his attorney, 

his mental health history, and his potential for rehabilitation.

Id. at 297. “[T]he imposition of a minimum sentence taking such factors 

into account is the most appropriate remedy for the federal constitutional 

violation that occurred when a life-without-parole sentence was mandatorily 

applied to [the a]ppellant.” Id.; see also Montgomery, 136 S. Ct. at 736 

(stating that “[a]llowing those offenders to be considered for parole

ensures that juveniles whose crimes reflected only transient immaturity—

and who have since matured—will not be forced to serve a disproportionate 

sentence in violation of the Eighth Amendment.”) (emphasis added). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/11/2016