J-S12010-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

AQUIL TILLMAN

Appellant No. 1378 EDA 2015

Appeal from the PCRA Order April 27, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0403711-1997

BEFORE: MUNDY, J., OLSON, J., and STRASSBURGER, J.*

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

Appellant, Aquil Tillman, appeals pro se from the April 27, 2015 order 

dismissing, as untimely, his second petition for relief filed pursuant to the 

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful 

review, we reverse the PCRA court’s order, vacate the judgment of sentence, 

and remand for resentencing.1

On August 10, 1999, the trial court imposed an aggregate sentence of 

life imprisonment without the possibility of parole, after Appellant was found 

guilty of one count each of first-degree murder, aggravated assault, robbery, 

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* Retired Senior Judge assigned to the Superior Court.

1 This Court initially affirmed the PCRA court’s order in a judgment order on 

January 22, 2016. Appellant filed a timely application for reconsideration on 

February 4, 2016. On March 8, 2016, this Court entered an order granting 

panel reconsideration, and this Court’s prior judgment order was withdrawn.
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criminal conspiracy, and possession of an instrument of a crime.2 The 

parties agree that Appellant was under 18 years of age at the time of the 

offense. Appellant’s Brief at 8; Commonwealth’s Brief at 9. This Court 

affirmed Appellant’s judgment of sentence on April 16, 2001, and our 

Supreme Court denied Appellant’s petition for allowance of appeal on 

September 25, 2001. Commonwealth v. Tillman, 778 A.2d 739 (Pa. 

Super. 2001) (unpublished memorandum), appeal denied, 790 A.2d 1016 

(Pa. 2001). As Appellant did not seek a writ of certiorari from the United 

States Supreme Court, his judgment of sentence became final on December 

24, 2001 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[]”); U.S. Sup. Ct. R. 13(1) (stating, 

“[a] petition for a writ of certiorari seeking review of a judgment of a lower 

state court that is subject to discretionary review by the state court of last 

resort is timely when it is filed with the Clerk within 90 days after entry of 

the order denying discretionary review[]”).

3

 Appellant filed the instant 

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2 18 Pa.C.S.A. §§ 2502(a), 2702(a), 3701(a), 903(a), and 907(a), 

respectively.

3 We note Appellant filed his first PCRA petition on June 11, 2003. The PCRA 

court dismissed said petition on January 7, 2005. This Court affirmed on 

(Footnote Continued Next Page)
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petition on June 23, 2010; as a result, it was facially untimely. See 

generally 42 Pa.C.S.A. § 9545(b)(1). Relevant to this appeal, Appellant 

amended his PCRA petition on August 17, 2012, to include a claim based on 

the United States Supreme Court’s decision in Miller v. Alabama, 132 S. 

Ct. 2455 (2012).

Instantly, Appellant argues that his petition is timely under the new 

constitutional right exception because the United States Supreme Court’s 

decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), should be 

retroactively applied. Appellant’s Brief at 8-11. 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, supra 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. 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. Section 9545(b)(1)(iii) permits an exception to the PCRA 

(Footnote Continued) _______________________

September 16, 2005, and Appellant did not file a petition for allowance of 

appeal with our Supreme Court. Commonwealth v. Tillman, 888 A.2d 12 

(Pa. Super. 2005) (unpublished memorandum).
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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 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 

Commonwealth v. Abdul-Salaam, 812 A.2d 497 (Pa. 2002), 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 must 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. Secreti, --- 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, 
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Appellant’s petition was timely and Miller does apply to his case.4 

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 Brief at 8; Commonwealth’s Brief at 9. As a result, Appellant is 

entitled to resentencing, consistent with Montgomery, Miller, and 

Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013).5

Based on the foregoing, we conclude Appellant’s PCRA petition was 

timely filed and he is entitled to resentencing, in light of Miller, 

Montgomery and Secreti.

6

 Accordingly, the PCRA court’s April 27, 2015 

order is reversed, the August 10, 1999 judgment of sentence is vacated, and 

the case is remanded for resentencing, consistent with this memorandum.

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4

In its initial brief, the Commonwealth argued that Appellant may not seek a 

remand even if Miller were retroactive based on the text of Section 

9545(b)(1)(iii) and our Supreme Court’s decision in Abdul-Salaam. 

Commonwealth’s Brief at 8 n.1. However, in its answer to Appellant’s 

petition for reconsideration, the Commonwealth conceded that resentencing 

was required. Commonwealth’s Answer, 2/16/16, at 2. 

5 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).

6 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).
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Order reversed. Judgment of sentence vacated. Case remanded for 

resentencing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/11/2016