J-S40002-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

CHARLES BROWN

                         Appellant                   No. 2407 EDA 2015


                 Appeal from the PCRA Order July 10, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0209611-1981


BEFORE: BOWES, MUNDY AND MUSMANNO, JJ.

JUDGMENT ORDER BY BOWES, J.:                          FILED JUNE 14, 2016

      Charles Brown appeals from the July 10, 2015 order denying him PCRA

relief. We reverse and remand.

      In 1980, then sixteen-year-old Appellant participated in the robbery

and stabbing death of Theodore Walker. He was sentenced to a mandatory

term of life imprisonment without parole.     We affirmed, and allowance of

appeal was denied. Commonwealth v. Brown, 480 A.2d 1171 (1984).

Appellant filed a petition under the now-repealed Post-Conviction Hearing

Act, and three PCRA petitions. The PCRA petitions were ruled untimely.

      Appellant filed his present PCRA petition on June 15, 2010, which was

dismissed as untimely. This appeal followed. Appellant raises two claims:

1) trial counsel was ineffective for disseminating defective advice that led to
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his rejection of a favorable plea deal; and 2) his life sentence is

unconstitutional under Miller v. Alabama, 132 S.Ct. 2455 (2012), which

held that it was unconstitutional to sentence a juvenile homicide offender to

a mandatory sentence of life without parole.1

       Appellant invokes the after-recognized constitutional right exception to

the PCRA’s one-year time bar.           Any PCRA petition, including a second or

subsequent petition, must be filed within one year of the date a defendant’s

judgment becomes final, “unless the petition alleges and the petitioner

proves that . . . . (iii) 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. § 9545(b)(1)(iii).

       As to his first claim, Appellant relies upon Lafler v. Cooper, 132 S.

Ct. 1376 (2012) (where attorney’s bad advice led to rejection of plea offer,

defendant was entitled to enforcement of bargain).           We have held that

Lafler did not create a new constitutional right, and that a claim invoking

that decision does not fall within the parameters of § 9545(b)(1)(iii).

Commonwealth v. Feliciano, 69 A.3d 1270 (Pa.Super. 2013). Hence, this

claim was properly dismissed as untimely presented.

____________________________________________


1
  The PCRA court ruled that Miller was inapplicable herein since it had not
been ruled retroactive to petitioners in the post-conviction setting.



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      However, while this appeal was pending, Miller was held to be

retroactive by the United States Supreme Court.                 Montgomery v.

Louisiana, 136 S. Ct. 718 (2016). On February 29, 2016, Appellant filed a

motion with this Court seeking to amend his PCRA petition in light of

Montgomery.        The Commonwealth does not oppose the grant of relief in

this connection.       In Commonwealth v. Secreti, 2016 PA Super 28

(Pa.Super. 2/9/16), Secreti was sentenced to mandatory life imprisonment

without parole for a homicide that he committed as a juvenile. He filed a

PCRA petition seeking relief under Miller, as did Appellant herein. Relief was

denied, and Secreti, as was Appellant, was on appeal when Montgomery

was decided.      Due to Montgomery, this Court in Secreti held that (1)

Miller applied retroactively to Secreti's sentence and the claim fell within §

9545(b)(1)(iii), and that 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). Thus, Appellant herein

is entitled to sentencing relief under Miller/Montgomery.

      The July 10, 2015 order denying PCRA relief and the April 28, 1982

judgment of sentence are vacated. Case remanded for resentencing under

Batts. The court is directed to appoint counsel for Appellant. Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/2016




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