Com. v. Lee, J. ( 2016 )

J-S51007-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LEWIS JEROME LEE
Appellant No. 2054 EDA 2015
Appeal from the PCRA Order June 9, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002441-1975;
CP-23-CR-000342-1975
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
JUDGMENT ORDER BY GANTMAN, P.J.: FILED MAY 26, 2016
Appellant, Lewis Jerome Lee, appeals from the order entered in
the Delaware County Court of Common Pleas, which denied his recent
petition filed under the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.
§§ 9541-9546. On December 9, 1975, Appellant pled guilty as a juvenile to
murder generally (found to be felony murder—accomplice liability), robbery,
and related offenses arising from his involvement in a robbery of two off-
duty police officers on March 25, 1975. Appellant’s cohort shot and killed
one of the officers. Appellant was fifteen years old at the time of the
incident. On August 9, 1976, the court imposed an automatic life sentence
without the possibility of parole (“LWOP”). Appellant’s direct appeal was
unsuccessful. See Commonwealth v. Lee, 484 Pa. 335, 399 A.2d 104
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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(1979) (affirming judgment of sentence by equally divided Court). Appellant
subsequently filed various failed petitions for collateral relief. He filed his
most recent petition pro se on July 5, 2012, seeking relief under the United
States Supreme Court’s decision, filed on June 25, 2012, in Miller v.
Alabama, ___ U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). The
PCRA court appointed counsel, who filed a no-merit letter and petition to
withdraw. The PCRA court held the matter in abeyance, pending resolution
of Commonwealth v. Cunningham, 622 Pa. 543, 81 A.3d 1 (2013).
Thereafter, the PCRA court granted counsel’s petition to withdraw and issued
Rule 907 notice on July 22, 2014. Appellant filed a pro se response, but the
court dismissed the petition on June 9, 2015. Appellant timely filed a pro se
notice of appeal on June 29, 2015, and a timely court-ordered Rule 1925(b)
statement. While the appeal was pending, the United States Supreme Court
decided Montgomery v. Louisiana, ___ U.S. ___, 136 S. Ct. 718, 193
L. Ed. 2d 599 (filed 1/27/16) (holding Miller applies retroactively to cases on
collateral review). Counsel entered an appearance for Appellant in this
Court on April 4, 2016, and filed a counseled brief on Appellant’s behalf,
raising Miller as reinvigorated by Montgomery, where Appellant was fifteen
years old at the time of the offenses and falls within the class of juvenile
offenders who can benefit from the Montogmery/Miller decisions. See
also Commonwealth v. Secreti, 134 A.3d 77 (Pa.Super. 2016) (holding
orders denying PCRA relief in cases involving Montgomery/Miller must be
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reversed and remanded for resentencing consistent with this new rule of
substantive law and Commonwealth v. Batts, 620 Pa. 115, 131-32, 66
A.3d 286, 296 (2013)).
[A]t a minimum [the 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 133, 66 A.3d at 297. Taking such factors into consideration, the
imposition of a minimum sentence in all but the most egregious cases, is the
most appropriate remedy for the federal constitutional violation that occurs
when a court has mechanically and mandatorily applied a LWOP sentence on
a juvenile offender. Id.
Here, Appellant was a fifteen-year-old juvenile when he participated in
a robbery on March 25, 1975, which resulted in one death. Appellant filed
his current PCRA petition on July 5, 2012, asserting a new constitutional
right under Miller, supra, both as an exception to the statutory timeliness
requirements and as a basis for substantive relief. The court denied
Appellant’s petition per Cunningham, supra. In light of recent case law,
however, Cunningham no longer controls in this context. See Secreti,
supra. Accordingly, we reverse the PCRA court’s order denying relief,
vacate Appellant’s judgment of sentence, and remand for resentencing in
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accordance with Batts, supra. The Commonwealth concedes this resolution
is appropriate. Due to our disposition, we deny as moot any outstanding
motion for remand.
Order reversed; judgment of sentence vacated; case remanded for
resentencing. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/26/2016
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