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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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