J-S88044-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                  Appellee                 :
                                           :
                     v.                    :
                                           :
JERMAINE ABRAMS,                           :
                                           :
                  Appellant                :    No. 262 EDA 2016

              Appeal from the PCRA Order December 22, 2015
            in the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-1109861-2002
                                        CP-51-CR-1111452-2002

BEFORE:     OLSON, RANSOM, and STRASSBURGER,* JJ.

JUDGMENT ORDER BY STRASSBURGER, J.:FILED FEBRUARY 16, 2017

     Jermaine Abrams (Appellant) pro se appeals from the December 22,

2015 order that denied his petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We reverse the PCRA court’s

order,   vacate   Appellant’s   judgment   of   sentence,   and   remand   for

resentencing.

     In 2004, Appellant was sentenced to life imprisonment without

possibility of parole following his conviction for, inter alia, first-degree

murder based upon events that took place when Appellant was 17 years old.

The order from which Appellant filed the instant appeal denied his request

for PCRA relief based upon the United States Supreme Court’s decision in

Miller v. Alabama, 132 S.Ct. 2455 (2012), in which the Court held



*Retired Senior Judge assigned to the Superior Court.
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unconstitutional   mandatory    sentences   of   life    imprisonment   without

possibility of parole imposed upon individuals who were juveniles at the time

they committed homicides.      The PCRA court determined that the newly-

recognized-constitutional-right exception to the PCRA’s one-year timeliness

requirement provided in 42 Pa.C.S. §9545(b)(1)(iii) did not apply because

our Supreme Court held in Commonwealth v. Cunningham, 81 A.3d 1, 11

(Pa. 2013), that Miller does not apply retroactively.1

      While this appeal was pending, the United States Supreme Court

decided in Montgomery v. Louisiana, 136 S.Ct. 718 (2016), that Miller

announced a new substantive rule of law which applies retroactively.

Thereafter, this Court held that Montgomery renders “retroactivity under

Miller effective as of the date of the Miller decision.” Commonwealth v.

Secreti, 134, A.3d, 77, 82 (Pa. Super. 2016).

      Under Secreti, Appellant’s PCRA petition meets the            timeliness

exception provided by 42 Pa.C.S. § 9545(b)(1)(iii).             Under   Miller,

Montgomery, and Secreti, Appellant is entitled to PCRA relief in the form


1
   Appellant initially filed the PCRA petition subject to this appeal in 2010,
upon the United States Supreme Court’s decision in Graham v. Florida,
560 U.S. 48 (2010), in which the Court held unconstitutional mandatory
sentences of life imprisonment without possibility of parole imposed upon
individuals who were juveniles at the time they committed non-homicides
offenses. Between 2011 and 2014, Appellant filed several addendums,
amendments, and various other filings prior to the PCRA court’s issuance of
its notice of intent to dismiss pursuant to Pa.Crim.P. 907 on November 12,
2015. Because Appellant’s petition was pending when Miller was decided,
we find Appellant is entitled to relief, as stated in more detail infra.


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of resentencing following judicial consideration of appropriate age-related

factors.2 See Commonwealth v. Batts, 66 A.3d 286, 297 (Pa. 2013).3

      Appellant is entitled to the assistance of counsel for his resentencing

proceedings. Com. ex rel. Wright v. Cavell, 220 A.2d 611, 614 (Pa. 1966)

(noting that sentencing is a critical stage of a criminal proceeding at which a

criminal defendant has a constitutional right to counsel).    Therefore, upon

remand, the trial court shall appoint counsel to represent Appellant.

      Order reversed. Judgment of sentence vacated. Case remanded for

resentencing. Jurisdiction relinquished.




 The Commonwealth does not contest, and the PCRA court agrees that
Appellant’s case should be remanded for resentencing.
3
      [A]t a minimum [the sentencing 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.

Batts, 66 A.3d at 297 (quoting Commonwealth v. Knox, 50 A.3d 732, 745
(Pa. Super. 2012)).

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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 2/16/2017




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