A blog of the Philadelphia Bar Association’s Criminal Justice Section

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By Burt Rose

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Com. v. Brown, 2013 WL 3723208, 2013 PA Super 194

Brown asserted that his sentence of a mandatory term of life in prison without the possibility of parole for second-degree murder violated the Eighth Amendment’s ban on cruel and unusual punishment pursuant to Miller v. Alabama, as he was sixteen years old when he committed the crime. The Commonwealth conceded that Brown must be resentenced on this basis.

A claim that a sentence constitutes cruel and unusual punishment raises a question of the legality of the sentence, and legality of sentencing claims per se can be raised for the first time on direct appeal. Here, Brown’s failure to raise the issue prior to appeal did not preclude the applicability of Miller to this direct appeal case.
The trial court sentenced Brown to a mandatory term of life in prison without the possibility of parole for a second-degree murder that he committed when he was 16 years old. Under Commonwealth v. Batts, 66 A.3d 286, 2013 WL 1200252 (Mar. 26, 2013), a life sentence without the possibility of parole was held unconstitutional for a first-degree murder committed when the defendant was 14 years old. Therefore, the Superior Court agreed that it must vacate the judgment of sentence and remand for resentencing.

In footnote 7, the Court states the following:

On October 25, 2012, the Pennsylvania Legislature passed new legislation setting forth the sentence for persons who commit murder, murder of an unborn child and murder of a law enforcement officer prior to the age of 18. 18 Pa.C.S.A. § 1102.1. This statute expressly applies only to defendants convicted after June 24, 2012. Id. As the trial court sentenced Brown on May 23, 2011, this statute is inapplicable to the case at bar.But see Batts, 2013 WL 1200252, at *13 (Baer, J., concurring) (“[F]or purposes of uniformity in sentencing, it would be appropriate for trial courts engaging in the task of resentencing under this circumstance to seek guidance in determining a defendant’s sentence and setting a minimum term from the General Assembly’s timely recent enactment in response to the U.S. Supreme Court’s decision in Miller.”).

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