J-S70036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

BENJAMIN BRABHAM

                            Appellant                   No. 244 EDA 2015


                Appeal from the PCRA Order December 17, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1206831-1993


BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                                 FILED MAY 02, 2016

        Benjamin Brabham filed a petition for allowance of appeal with our

Supreme Court from our unpublished memorandum affirming the trial

court’s order denying his second petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.          The Supreme

Court of Pennsylvania remanded the matter for further proceedings

consistent with Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

Accordingly, we reverse and remand for resentencing.

        In September 1994, Brabham was found guilty of second-degree

murder and related charges.             Brabham was sixteen years old when he

committed the offenses.         He was sentenced to life in prison without the

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S70036-15



possibility of parole.1 Brabham filed a direct appeal; our Court affirmed his

judgment of sentence.        See Commonwealth v. Brabham, No. 3681 PHL

1994 (Pa. Super. filed Oct. 18, 1995). Brabham subsequently filed a petition

for allowance of appeal to our Supreme Court which was denied on May 23,

1996. On October 10, 2000, Brabham filed a pro se petition for a writ of

habeas corpus which the trial court treated as an untimely PCRA petition.

The petition was dismissed in September 2001.        Brabham filed an appeal

from this decision and our Court affirmed the order.     Commonwealth v.

Brabham, 2929 EDA 2001 (filed Aug. 9, 2002).

       On April 29, 2005, Brabham filed the instant pro se PCRA petition;

appointed counsel filed several amended petitions. In one of his amended

petitions, Brabham asserted that pursuant to the United States Supreme

Court’s decision in Miller v. Alabama, 132 S. Ct. 2455 (2012),2 his life

sentence is illegal.     On December 14, 2014, the court denied PCRA relief

without a hearing.      Brabham filed a timely notice of appeal and our Court

affirmed the PCRA court’s denial of his petition, finding that, among other

things, he is not entitled to relief under Miller where his petition was
____________________________________________


1
  Verdicts without further penalty were imposed on the remaining robbery
and conspiracy charges.
2
  In Miller, the Supreme Court held that sentencing juveniles, under the age
of 18 at the time they committed a homicide offense, to mandatory life
imprisonment without the possibility of parole is a violation of the Eighth
Amendment’s prohibition on cruel and unusual punishment.




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untimely, he did not prove an exception to the PCRA’s time bar provisions,

and where Miller does not apply retroactively to cases on collateral appeal

under Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013).3

        On December 15, 2015, Brabham petitioned our Supreme Court for

allowance of appeal.       On April 19, 2016, the Pennsylvania Supreme Court

vacated our Court’s disposition and remanded the matter to this Court for

further proceedings consistent with Montgomery.4

        After the United States Supreme Court’s holding in Montgomery,

Cunningham’s holding that Miller cannot be applied retroactively is no

longer good law in Pennsylvania. See Commonwealth v. Secreti, 2016 PA

Super    28   (Pa.    Super.    2016)    (interpreting   Montgomery   as   making

retroactivity under Miller effective as of the date of the Miller decision).

        Here, the trial court sentenced Brabham, who was a juvenile at the

time of the offense, to a mandatory sentence of life imprisonment without

the possibility of parole.       In light of the United States Supreme Court’s

recognition in Miller that such a sentence violates the Eighth Amendment’s

prohibition against cruel and unusual punishment, and the Court’s recent

____________________________________________


3
  In Cunningham, the Pennsylvania Supreme Court determined that the
Miller holding does not apply retroactively to an inmate, serving a life
sentence without parole, who has exhausted his direct appeal rights and is
proceeding under the PCRA.
4
 The Supreme Court denied Brabham’s petition for allowance of appeal in all
other respects. See Supreme Court Remand Order, 4/19/16.



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retroactive application of Miller in Montgomery, we reverse the trial court’s

order and remand for resentencing.

      Order     reversed.   Remanded       for   resentencing.   Jurisdiction

relinquished.

DONOHUE, J., Did not participate in the consideration or decision of this

memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/2016




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