Opinion
J. S71035/14 No. 513 MDA 2014
02-19-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. LARRY MARKLE, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order February 12, 2013
In the Court of Common Pleas of York County
Criminal Division No(s): CP-67-CR-0001337-1975 BEFORE: FORD ELLIOTT, P.J.E., PANELLA, and FITZGERALD, JJ. JUDGMENT ORDER BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Larry Markle, appeals from the order dismissing as untimely his third Post Conviction Relief Act ("PCRA") petition seeking relief, in light of Miller v. Alabama , 132 S. Ct. 2455 (2012), from a mandatory sentence of life imprisonment without parole imposed on October 29, 1979. This Court previously denied Appellant's counsel petition to withdraw and directed him to submit an amended Turner/Finley letter or an advocate's brief to address whether the retroactive application of Miller could be considered outside the framework of the PCRA. Appellant's counsel has filed an advocate's brief and the Commonwealth has filed a supplemental responsive brief.
See Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) (en banc).
While this appeal was pending, the United States Supreme Court decided Montgomery v. Louisana , ___ S. Ct. ___, 2016 WL 280758 (U.S. Jan. 25, 2016), and held "that when a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral review courts to give retroactive effect to that rule." Montgomery , 2016 WL 280758 at *7. The Montgomery Court concluded that Miller "announced a substantive rule of constitutional law" under Teague v. Lane , 489 U.S. 288 (1989). Id. at *15. Moreover, this Court, in Commonwealth v. Secreti , ___ A.3d ___, 2016 WL 513341 ( Pa. Super. Feb. 9, 2016), has recently held that Miller and Montgomery afford relief to petitioners whose PCRA petitions seeking relief under Miller were on appeal when Montgomery was announced.
In light of the foregoing, we reverse the order dismissing Appellant's PCRA petition and remand for resentencing.
Order reversed. Case remanded. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/19/2016