J-S56024-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JAMES M. BUTTON

Appellant No. 1973 MDA 2014

Appeal from the PCRA Order November 10, 2014

In the Court of Common Pleas of Tioga County

Criminal Division at No(s): 67 CR 1982

BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.: FILED APRIL 08, 2016

For the reasons that follow, we quash this appeal. However, appellant 

James Button may file a new PCRA petition in the court of common pleas 

within sixty days of this order, in which he seeks relief under Miller v. 

Alabama, __ U.S. __, 132 S.Ct. 2455 (2012). 

We explain our decision briefly. On January 25, 2016, the United 

States Supreme Court held in Montgomery v. Louisiana, ___ U.S. ___, 

2016 WL 280758 *12 (filed January 25, 2016, as revised on January 27, 

2016), that its decision in Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 

(2012), applies retroactively. Miller, which was issued on June 25, 2012, 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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held that it is unconstitutional for state courts to impose an automatic life 

sentence without possibility of parole upon a homicide defendant for a 

murder committed while the defendant was a juvenile. 

Shortly after Montgomery’s issuance, this Court entered a published 

opinion in Commonwealth v. Secreti, -- A.3d --, 2016 WL 513341 

(Pa.Super., 2/9/16). There, Secreti was sentenced to automatic life 

imprisonment without possibility of parole for committing first degree 

murder as a juvenile. On August 15, 2012, Secreti filed a timely PCRA 

petition seeking relief under Miller. On February 9, 2016, following 

Montgomery, this Court held that (1) Miller applied retroactively to 

Secreti’s sentence under the PCRA’s retroactivity provision, 42 Pa.C.S. § 

9545(b)(1)(iii); (2) Secreti’s sentence was unconstitutional under Miller, 

and (3) Secreti was entitled to a new sentencing hearing. 

The present case, however, is distinguishable from Secreti. In 1982, 

Button was convicted of two counts of first degree murder and sentenced to 

life imprisonment without the possibility of parole. Subsequently, Button 

filed three unsuccessful PCRA petitions. On December 11, 2011, he filed the 

third of these petitions, which the PCRA court dismissed as untimely on 

February 28, 2012. He filed a timely appeal, and this Court affirmed on 

February 4, 2013 at 662 MDA 2012.

On July 19, 2012, while Button’s appeal at 662 MDA 2012 was pending 

in this Court, he filed a fourth PCRA petition in the court of common pleas 
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seeking relief under Miller. On August 6, 2012, he moved for leave to 

supplement this fourth petition. On October 6, 2014, the PCRA court 

dismissed this petition. On October 14, 2014, Button filed a timely appeal at 

1973 MDA 2014.

At the time of his fourth PCRA petition, the subject of this appeal, 

Button’s appeal from the denial of his third PCRA petition was pending in this 

Court at 662 MDA 2012. The appeal at 662 MDA 2012 remained undecided 

until February 4, 2013. As a result, the court of common pleas lacked 

jurisdiction over Button’s fourth PCRA petition, which in turn deprives us of 

jurisdiction over Button’s present appeal. See Commonwealth v. Lark, 

746 A.2d 585, 588 (Pa.2000) (when defendant's appeal from decision on 

PCRA petition is pending before appellate court, subsequent PCRA petition 

cannot be filed until resolution of review of pending PCRA petition by highest 

state court in which review is sought, or upon expiration of time for seeking 

such review).

Thus, we quash the present appeal. We note, however, that under 42 

Pa.C.S. § 9545(b)(2), Button has sixty days from the date of this order to 

file a new PCRA petition in the court of common pleas seeking relief under 

Miller. Section 9545(b)(2) provides that “[a]ny petition invoking an 

exception provided in paragraph (1) [(regarding the exceptions to the PCRA 

timing requirements)] shall be filed within 60 days of the date the claim 

could have been presented.” Because Button cannot properly file a new 
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PCRA petition until this Court relinquishes jurisdiction of his present petition, 

section 9545(b)(2) provides him with sixty days from this date in which to 

file his new petition.

Appeal quashed. Petition to remand to Tioga County dismissed as 

moot.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/8/2016