Com. v. Mcmanus, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MELISA ANN MCMANUS :
:
Appellant : No. 1415 MDA 2014
Appeal from the PCRA Order entered on July 22, 2014
in the Court of Common Pleas of Lancaster County,
Criminal Division, No. CP-36-CR-0002039-1993
BEFORE: PANELLA, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED APRIL 08, 2016
Melisa Ann McManus (“McManus”) appeals from the Order dismissing
her Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546. We reverse the Order, vacate
McManus’s judgment of sentence, and remand for resentencing.
In 1994, McManus was convicted of murder of the first degree and
criminal conspiracy after the death of her newborn son.1 McManus was 17
years old at the time of the crime. The trial court sentenced McManus to life
in prison without the possibility of parole on the murder conviction, and a
concurrent 5 to 10 years in prison on the conspiracy conviction. This Court
affirmed the judgment of sentence, and the Supreme Court denied
allowance of appeal. See Commonwealth v. McManus, 664 A.2d 10571
See 18 Pa.C.S.A. §§ 2502(a), 903.
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(Pa. Super. 1995) (unpublished memorandum), appeal denied, 670 A.2d
141 (Pa. 1995). McManus did not file a Petition for Writ of certiorari with the
United States Supreme Court.
McManus filed her first PCRA Petition, pro se, in 2010. The PCRA court
appointed McManus counsel, who filed an Amended PCRA Petition. In this
Petition, McManus argued that her sentence was unconstitutional under
Graham v. Florida, 560 U.S. 48 (2010). The PCRA court issued a Notice of
Intent to Dismiss, and dismissed the Petition without a hearing. McManus
filed a timely Notice of Appeal.
In 2012, while the appeal was pending, McManus filed a PCRA Petition,
following the United States Supreme Court’s decision in Miller v. Alabama,
132 S. Ct. 2455 (2012).2 The PCRA court denied the second Petition
because McManus’s first Petition was still pending before this Court.
McManus filed an Application for Remand of the 2010 PCRA Petition, which
this Court denied. Instead, this Court ordered the case listed for en banc
review to determine the retroactivity of Miller. The Commonwealth filed an
Application for Stay of the appeal from the dismissal of the 2010 PCRA
2
In Miller, the Supreme Court held that sentencing schemes which mandate
life in prison without parole for defendants who committed their crimes while
under the age of eighteen violates the Eighth Amendment’s prohibition on
“cruel and unusual punishments.” Miller, 132 S. Ct. at 2460. The Supreme
Court reasoned that, in light of a juvenile’s diminished culpability and
heightened capacity for change, mandatory juvenile sentencing schemes
pose too great a risk of disproportionate punishment, in contravention of the
Eighth Amendment. Id. at 2469.
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Petition pending the Supreme Court of Pennsylvania’s decision in
Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), on the
retroactivity of Miller. This Court granted the Application for Stay. In 2013,
the Supreme Court of Pennsylvania held that Miller should not be applied
retroactively to individuals whose judgments of sentence were final prior to
that decision. Cunningham, 81 A.3d at 11. As a result, this Court
remanded the 2010 PCRA Petition to the PCRA court and relinquished
jurisdiction.
In 2014, the Commonwealth filed an Answer to McManus’s PCRA
Petition, and the PCRA court ruled to stay the remanded PCRA action
pending a ruling by the United States Supreme Court on whether it would
grant certiorari in Cunningham. On June 9, 2014, the United States
Supreme Court denied certiorari. See Cunningham v. Pennsylvania, 134
S. Ct. 2724 (2014). The PCRA court subsequently dismissed the PCRA
Petition.
This panel affirmed the PCRA court’s dismissal based on the
untimeliness of the Petition,3 and McManus’s failure to properly invoke a
3
Under the PCRA, any PCRA petition “shall be filed within one year of the
date the judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). A
judgment of sentence becomes final “at the conclusion of direct review,
including discretionary review in the Supreme Court of Pennsylvania, or at
the expiration of time for seeking the review.” Id. § 9545(b)(3). Here,
McManus’s Petition was facially untimely under the PCRA.
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timeliness exception under the PCRA.4 See Commonwealth v. McManus,
120 A.3d 388 (Pa. Super. 2015) (unpublished memorandum at 4-5). Our
panel was constrained to conclude that the Miller decision did not implicate
the newly recognized constitutional right exception codified at 42 Pa.C.S.A.
§ 9545(b)(1)(iii), based upon the Cunningham decision. McManus, 120
A.3d 388 (unpublished memorandum at 5).
McManus filed a Petition for Allowance of Appeal. On February 17,
2016, our Supreme Court granted the Petition, vacated this Court’s decision,
and remanded for further proceedings based upon the United States
Supreme Court’s decision in Montgomery v. Louisiana, 136 S. Ct. 718(2016). See Commonwealth v. McManus, 2016 WL 634042, *1 (Pa.
2016).
In Montgomery, the United States Supreme Court held that its
decision in Miller, supra, applies retroactively. Montgomery, 136 S. Ct. at
736. Following the Montgomery decision, this Court issued its Opinion in
Commonwealth v. Secreti, 2016 PA Super 28 (Pa. Super. 2016), which
held that where a PCRA petitioner properly raised a Miller claim within sixty
days of that decision, Miller applies retroactively; the petitioner’s sentence
is unconstitutional under Miller; and the petitioner is entitled to a new
4
Pennsylvania courts may consider an untimely petition if the appellant can
explicitly plead and prove one of three exceptions set forth under 42
Pa.C.S.A. § 9545(b)(1)(i)-(iii). Any PCRA petition invoking one of these
exceptions “shall be filed within 60 days of the date the claim could have
been presented.” Id. § 9545(b)(2).
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sentencing hearing in accordance with Commonwealth v. Batts, 66 A.3d
286, 296 (Pa. 2013).5 Secreti, 2016 PA Super 28, **4-6.
Here, McManus’s first PCRA Petition was pending at the time of the
Miller decision. See Commonwealth v. Porter, 35 A.3d 4, 14 (Pa. 2012)
(stating that courts “cannot entertain a new PCRA petition when a prior
petition is still under review[.]”). Subsequently, the PCRA court and this
Court stayed a decision on McManus’s 2010 PCRA Petition until the final
resolution of Cunningham. Thus, in light of this procedural history, we
conclude that McManus properly and timely invoked Miller under section
9545(b)(1)(iii).
5
“Miller requires only that there be judicial consideration of the appropriate
age-related factors set forth in that decision prior to the imposition of a
sentence of life imprisonment without the possibility of parole on a juvenile.”
Batts, 66 A.3d at 296.
[A]t a minimum[, the trial court] should consider a juvenile’s age
at the time of the offense, h[er] diminished culpability and
capacity for change, the circumstances of the crime, the extent
of h[er] participation in the crime, h[er] family, home and
neighborhood environment, h[er] emotional maturity and
development, the extent that familial and/or peer pressure may
have affected h[er], h[er] past exposure to violence, h[er] drug
and alcohol history, h[er] ability to deal with the police, h[er]
capacity to assist h[er] attorney, h[er] mental health history,
and h[er] potential for rehabilitation.
Id. at 297. “[T]he imposition of a minimum sentence taking such factors
into account is the most appropriate remedy for the federal constitutional
violation that occurred when a life-without-parole sentence was mandatorily
applied to [an a]ppellant.” Id.; see also Montgomery, 136 S. Ct. at 736
(stating that “[a]llowing those offenders to be considered for parole
ensures that juveniles whose crimes reflected only transient immaturity—
and who have since matured—will not be forced to serve a disproportionate
sentence in violation of the Eighth Amendment.”) (emphasis added).
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Based upon Montgomery and Secreti, we conclude that (1) McManus
satisfied the timeliness exception at 42 Pa.C.S.A. § 9545(b)(1)(iii), and that
Miller applies retroactively to her sentence; (2) McManus’s sentence is
unconstitutional under Miller; and (3) McManus is entitled to a new
sentencing hearing. Accordingly, we reverse the PCRA court’s Order
dismissing McManus’s Petition, vacate McManus’s judgment of sentence, and
remand for resentencing in accordance with Batts, supra.
Order reversed. Judgment of sentence vacated. Case remanded for
resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/2016
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