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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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Supreme Court from our unpublished memorandum affirming the trial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
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*
Retired Senior Judge assigned to the Superior Court.
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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
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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
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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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