J-S21022-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TYRONE HENDERSON

Appellant No. 1984 EDA 2015

Appeal from the PCRA Order June 4, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-1142831-1993

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.: FILED APRIL 12, 2016

Tyrone Henderson appeals from the trial court’s order denying, as 

untimely, his fifth petition filed pursuant to the Post Conviction Relief Act 

(PCRA), 42 Pa.C.S. §§ 9541-9546. Because the United States Supreme 

Court has declared that the holding of Miller v. Alabama, 132 S.Ct. 2455 

(2012), is a substantive rule of constitutional law to which state collateral 

review courts were required, as a constitutional matter, to give retroactive 

effect, Montgomery v. Louisiana, 136 S.Ct. 718, 736 (filed January 25, 

2016, as revised on January 27, 2016), we reverse and remand for 

resentencing.1

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 Although Henderson has filed an application for remand based on the 

holding of Montgomery, we are bound to follow the procedure set forth by 

(Footnote Continued Next Page)
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Henderson was involved in a drug deal gone bad, which led to the 

October 20, 1993 shooting death of Richard Marable (victim). At the time of 

the offense, Henderson was seventeen years old. After a jury trial, 

Henderson was convicted of first-degree murder2and possessing an 

instrument of crime (PIC).3 On November 14, 1994, Henderson was 

sentenced to life imprisonment without the possibility of parole for firstdegree murder; no further penalty was imposed on the PIC conviction.4

 

Henderson filed a direct appeal. Our Court affirmed his judgment of 

sentence. Commonwealth v. Henderson, No. 4113 PHL 1994 (Pa. Super. 

filed August 7, 1995). The Supreme Court subsequently denied Henderson’s 

petition for allocatur. 

On May 1, 1996, Henderson filed his first PCRA petition, pro se, 

alleging various claims of ineffectiveness of counsel. Counsel was appointed 

and filed an amended petition on Henderson’s behalf. The trial court denied 

Henderson’s petition and our Court affirmed the denial of PCRA relief. 

Henderson filed serial pro se PCRA petitions, dated August 23, 2000, 

(Footnote Continued) _______________________

our Court in Commonwealth v. Secreti, 2016 PA Super. 28 (Pa. Super. 

2016).

2 18 Pa.C.S. § 2502.

3 18 Pa.C.S. § 907.

4 The crime of involuntary manslaughter, a second PIC charge and a firearm 

offense were nolle prossed. Henderson was found not guilty of voluntary 

manslaughter.
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December 23, 2003, and January 4, 2004. All petitions were dismissed as 

untimely filed. Those decisions were affirmed on appeal. 

On July 9, 2010, Henderson filed the instant pro se PCRA petition, his 

fifth, claiming that he is serving an illegal sentence under the Pennsylvania 

and United States Constitutions based on the holding of Graham v. Florida, 

130 S.Ct. 2011 (2010). On August 2, 2012 and December 13, 2013, 

Henderson amended his petition to include reference to Miller, supra, and 

the PCRA’s newly recognized constitutional right exception set forth in 42 

Pa.C.S. § 9545(b)(1)(iii). On June 24, 2014, the PCRA court issued its 

Pa.R.Crim.P. 907 notice of intent to dismiss Henderson’s petition without a 

hearing based on its untimeliness and failure to prove an exception to the 

timeliness provision of the PCRA. Henderson filed a response to the court’s 

Rule 907 notice. On June 4, 2015, the court dismissed Henderson’s PCRA 

petition. This timely pro se appeal follows.

On appeal, Henderson raises the following issues for our consideration:

(1) Did the trial court err in dismissing petitioner’s petition and 

all supplemental petitions as untimely?

(2) Did the trial court err in dismissing petitioner’s PCRA 

petition and all supplemental petitions when they invoked 

meritorious claims for Miller and Graham5to be applied 

retroactively?

____________________________________________

5 We note that in Graham, the United States Supreme Court determined 

that a sentence of life without parole imposed upon a non-homicide juvenile 

offender violates the Eighth Amendment’s proscription against cruel and 

(Footnote Continued Next Page)
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(3) Did the trial court err in dismissing petitioner’s PCRA 

petition that raised ineffective[] assistance of counsel for 

offering bad advice that led to petitioner’s rejection of [a] 

plea deal?

(4) Should this Court hold petitioner’s PCRA petition in 

abeyance pending the United States Supreme Court’s 

decision in Montgomery v. Louisiana?

6

With regard to Henderson’s first two claims raised on appeal, invoking 

Miller, we conclude that he is entitled to relief based upon the United States 

Supreme Court’s recent decision, Montgomery v. Louisiana, 136 S.Ct. 

718. Although at the time Henderson filed his petition he was not entitled to 

retroactive application of Miller, see Commonwealth v. Cunningham, 81 

A.2d 1 (Pa. 2013),7 during the pendency of this appeal the United States 

Supreme Court issued Montgomery, which concluded that the holding of 

Miller is a substantive rule of constitutional law to which state collateral 

review courts were required, as a constitutional matter, to give retroactive 

effect. Id. at 736. 

(Footnote Continued) _______________________

unusual punishment. Since Henderson was convicted of first-degree 

murder, this holding does not apply to him.

6 Because the United States Supreme Court rendered a decision in 

Montgomery since the filing of Henderson’s appeal, this claim is now moot.

7

In Cunningham, the Pennsylvania Supreme Court determined that the 

Miller holding did not apply retroactively to an inmate, serving a life 

sentence without parole, who has exhausted his direct appeal rights and is 

proceeding under the PCRA. Moreover, in Commonwealth v. Cintora, 69 

A.3d 759 (Pa. Super. 2013), our Court found that Miller did not qualify as a 

newly-discovered fact or newly recognized constitutional right under section 

9545(b)(1)(ii) or (iii) of the PCRA. However, Cunningham, Cintora and 

their progeny are no longer good law as a result of Montgomery.
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The Supreme Court cautioned in Montgomery that a court has no 

authority to leave in place a conviction or sentence that violates a 

substantive rule like Miller, regardless of whether the conviction or sentence 

became final before the rule was announced. Id. at 724. In Miller, supra, 

the United States Supreme held that “the Eighth Amendment forbids a 

sentencing scheme that mandates life in prison without possibility of parole 

for juvenile homicide offenders.” Miller, 132 S.Ct. at 2469. Moreover, the 

Miller Court recognized that before sentencing juveniles, a judge or jury 

must “have the opportunity to consider mitigating circumstances before 

imposing the harshest possible penalty,” id. at 2476, by “tak[ing] into 

account how children are different, and how those differences counsel 

against irrevocably sentencing them to a lifetime in prison.” Id. at 2469.

In the wake of Montgomery, our Court issued a decision to reverse 

and remand cases on collateral appeal where a petitioner claimed that he or 

she was entitled to relief pursuant to Miller. See Commonwealth v. 

Secreti, 2016 PA Super 28 (Pa. Super. 2016) (interpreting Montgomery as 

making retroactivity under Miller effective as of the date of the Miller

decision).

Accordingly, because Henderson was a juvenile at the time of the 

instant offense, his life sentence without parole is, by definition, unlawful 

under Miller and Montgomery. Therefore, we reverse the order of the 

PCRA court and remand this case for resentencing.
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In his final claim on appeal, Henderson asserts that counsel was 

ineffective for advising him to go to trial, where he ultimately received a 

sentence of life without parole, rather than accept a plea offer of 10-20 

years’ incarceration. Because Henderson did not raise this claim in his 

petition and also had the opportunity to raise it in his previously filed four 

petitions, it is waived. Commonwealth v. Lowe, 444 A.2d 739 (Pa. Super. 

1982); 42 Pa.C.S. § 9544(b) (“an issue is waived [under the PCRA] if the

petitioner could have raised it but failed to do so . . . on appeal or in a prior 

state postconviction proceeding.”).

Order reversed. Remanded for resentencing. Jurisdiction 

relinquished.8 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/12/2016

____________________________________________

8 We recognize that while Henderson’s first-degree murder sentence, itself, 

may be unlawful, his underlying conviction stands.