Com. v. Brown, C.

Opinion

J-S29019-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

CHAIZ EDWARD BROWN

Appellant No. 1288 WDA 2014

Appeal from the PCRA Order July 31, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0002088-2006

BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J.*

JUDGMENT ORDER BY MUNDY, J.: FILED MAY 7, 2015

Appellant, Chaiz Edward Brown, appeals from the July 31, 2014 order,

denying his first petition for relief filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we reverse

and remand for resentencing.

On September 25, 2008, the trial court sentenced Appellant to a

mandatory sentence of life imprisonment after he was found guilty of one

count each of murder in the second degree, robbery, and three firearms

offenses,1 committed when Appellant was 17 years old. On December 16,

2011, this Court vacated the robbery portion of Appellant’s sentence, ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), 6106(a)(1), 6105(c)(7), and 6110.2(a), respectively. J-S29019-15

concluding it should have merged with the sentence for second-degree

murder. We affirmed Appellant’s judgment of sentence in all other respects.

Commonwealth v. Brown, 40 A.3d 195 (Pa. Super. 2011) (unpublished

memorandum at 11), appeal denied, 47 A.3d 843 (Pa. 2012). On January

11, 2012, Appellant filed a petition for allowance of appeal with our Supreme

Court, which was denied on July 2, 2012. Id. Appellant timely filed the

instant PCRA petition on July 26, 2012.

Appellant argues the United States Supreme Court’s decision in Miller

v. Alabama, 132 S. Ct. 2455 (2012), should apply retroactively to him.

Miller retroactively applies to all cases that were pending on direct appeal

when it was decided. Commonwealth v. Brown, 71 A.3d 1009, 1016 (Pa.

Super. 2013), appeal denied, 77 A.3d 635 (Pa. 2013). A judgment of

sentence becomes final “at the conclusion of direct review, including

discretionary review in the … Supreme Court of Pennsylvania ….” 42

Pa.C.S.A. § 9545(b)(3). Miller was decided on June 25, 2012, when

Appellant’s allocatur petition was still pending in our Supreme Court.

Therefore, Appellant’s case was still on direct appeal when Miller was

decided, and it does retroactively apply. The PCRA court and the

Commonwealth’s reliance on Commonwealth v. Cunningham, 81 A.3d 1

(Pa. 2013), cert. denied, Cunningham v. Pennsylvania, 134 S. Ct. 2724

(2014), is erroneous, as Cunningham pertains to cases where the

judgment of sentence was final when Miller was decided. Id. at 4. On

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remand, the PCRA court shall vacate the judgment of sentence and

resentence Appellant consistent with Miller and Commonwealth v. Batts,

66 A.3d 286 (Pa. 2013).2

Based on the foregoing, we conclude the trial court erred when it

denied Appellant’s PCRA petition. Accordingly, the PCRA court’s July 31,

2014 order is reversed, and the case is remanded for resentencing,

consistent with this judgment order.

Order reversed. Case remanded for resentencing. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/7/2015

____________________________________________ 2 In light of our disposition, Appellant’s argument that the PCRA court erred in not allowing him to amend his PCRA petition to raise additional Miller retroactivity arguments is moot. We also note that although the General Assembly passed Section 1102.1 in October 2012 to address Miller, its text limits its application to those “convicted after June 24, 2012[.]” 18 Pa.C.S.A. § 1102.1(a), (c).

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