Com. v. Brown, C. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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Appellant filed a petition under the now-repealed Post-Conviction Hearing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.
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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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