Com. v. Irby, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ALBERT IRBY,
Appellant No. 1558 WDA 2014
Appeal from the PCRA Order September 19, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR—0000013-1969
BEFORE: FORD ELLIOTT, P.J.E., BOWES, AND ALLEN, JJ.
MEMORANDUM BY BOWES, J.: FILED APRIL 07, 2016
This matter is again before this panel upon remand from the Supreme
Court. We vacate the September 19, 2014 PCRA order, vacate Appellant’s
judgment of sentence, and remand for resentencing.
Appellant, who was seventeen years old at the time of the offense,
was convicted by a jury of first-degree murder1 and was sentenced on May
6, 1971, to a mandatory sentence of life imprisonment without parole.
Appellant confessed that on September 22, 1969, he entered a store
intending to commit an armed robbery and shot the victim when the victim
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1
Due to deficiencies in the decades old record, it is not possible to
determine if Appellant was convicted of additional offenses.
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reached for his gun. On direct appeal, our Supreme Court affirmed.
Commonwealth v. Irby, 284 A.2d 738 (Pa. 1971).
On August 6, 2012, within sixty days of the June 25, 2012 issuance of
Miller v. Alabama, 132 S. Ct. 2455 (2012), Appellant filed his first PCRA
petition claiming that his sentence was unconstitutional under that decision.
In Miller, the United States Supreme Court held that it was a violation of
the Eighth Amendment’s prohibition against cruel and unusual punishment
to sentence a juvenile homicide offender to a mandatory term of life
imprisonment without parole. At that time, Miller did not address whether
its decision would be fully retroactive.
The court appointed counsel for purposes of the PCRA petition, and
counsel filed an amended petition. The August 6, 2012 PCRA petition was
not timely filed within one year of when Appellant’s judgment of sentence
became final, as required by 42 Pa.C.S. § 9545(b)(1), which was enacted
ineffective January 16, 1996. The petition also did not qualify under a grace
proviso from § 9545(b)(1) wherein a petitioner whose judgment of sentence
became final before § 9545(b)(1) was enacted could file a first-time PCRA
petition by January 16, 1997. See Commonwealth v. Alcorn, 703 A.2d
1054 (Pa.Super. 1997) (discussing exception in question).
Appellant maintained that his August 6, 2012 PCRA petition was timely
under the third exception to the one-year time bar. That exception is set
forth in 42 Pa.C.S. § 9545(b)(1)(iii), which states that a PCRA petition will
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be considered timely if “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.”2 After our Supreme Court filed
Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), where the Court
held that Miller was not retroactive to cases on collateral review, the PCRA
court herein dismissed the PCRA petition. On appeal, this panel affirmed.
Commonwealth v. Irby, 2015 WL 7575793 (Pa.Super. 2015) (unpublished
memorandum).
On January 25, 2016, the United States Supreme Court decided
Montgomery v. Louisiana, 136 S. Ct. 718 (2016), which overruled
Cunningham by holding that Miller was to be given retroactive effect. By
per curiam order, our Supreme Court granted Appellant’s petition for
allowance of appeal, vacated our order, and remanded the matter to this
panel for further proceedings consistent with Montgomery.
Shortly after Montgomery's issuance, this Court disseminated a
published opinion in Commonwealth v. Secreti, 2016 WL 513341
(Pa.Super. 2016). Therein, Secreti was sentenced to automatic life
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2
The PCRA also provides: “Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2). As noted, the petition at issue
herein was filed within sixty days of the issuance of Miller.
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imprisonment without the possibility of parole for committing first degree
murder as a juvenile, and filed a PCRA petition seeking relief under Miller.
Relief was denied, and Secreti was on appeal when Montgomery was
decided. On February 9, 2016, following issuance of Montgomery, this
Court in Secreti held that (1) Miller applied retroactively to Secreti's
sentence under 42 Pa.C.S. § 9545(b)(1)(iii); (2) Secreti's sentence was
unconstitutional under Miller; and (3) Secreti was entitled to a new
sentencing hearing in accordance with the dictates of our Supreme Court’s
decision in Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013).
Based on Secreti and due to Appellant’s express invocation of §
9545(b)(1)(iii) in the present PCRA petition, we vacate the order of the
PCRA court, vacate the judgment of sentence, and remand for a new
sentencing hearing.
Jurisdiction relinquished.
Judge Allen did not participate in the consideration or decision of this
case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
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Date: 4/7/2016
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