J-S73006-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. EMRU KEBEDE, Appellant No. 1228 MDA 2014

Appeal from the PCRA Order June 27, 2014 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0003556-2007

BEFORE: BOWES, WECHT, and MUSMANNO, JJ.

JUDGMENT ORDER BY BOWES, J.: FILED MARCH 16, 2016 This matter is before the panel a second time. On May 2, 2007, Appellant Emru Kebede, who was then sixteen years old, participated in events that led to the murder of Ray Diener by another actor. On September 10, 2010, Appellant was found guilty of second-degree murder and was sentenced to a mandatory sentence of life imprisonment without parole. Appellant filed a timely PCRA petition invoking Miller v. Alabama, 132 S.Ct. 2455 (2012), which held that it was unconstitutional to sentence a juvenile homicide offender to an automatic sentence of life without parole.

Counsel was appointed and argued that Miller applied retroactively. The PCRA court denied relief on June 27, 2014, and this appeal was filed. PCRA counsel petitioned to withdraw, noting that Miller has been denied retroactive application in Commonwealth v. Cunningham, 81 A.3d 1 (Pa. J-S73006-14

2013). We permitted counsel to withdraw in a decision filed on February 20, 2015.

On January 25, 2016, the United States Supreme Court overruled Cunningham, holding that Miller was to be given retroactive effect.

Montgomery v. Louisiana, 136 S. Ct. 718 (2016). On February 17, 2016, Appellant’s petition for allowance of appeal was granted as to the Miller question and the case was remanded to this Court for further proceedings consistent with Montgomery.

Shortly after Montgomery's issuance, this Court entered a published opinion in Commonwealth v. Secreti, 578 WDA 2015 (Pa.Super. 2/9/16).

Therein, Secreti was sentenced to automatic life imprisonment without possibility of parole for committing first degree murder as a juvenile, and filed a PCRA petition seeking relief under Miller. Relief was denied, and Secreti was on appeal when Montgomery was decided. On February 9, 2016, following issuance of Montgomery, this Court in Secreti held that (1) Miller applied retroactively to Secreti's sentence under the PCRA's retroactivity provision, 42 Pa.C.S. § 9545(b)(1)(iii); (2) Secreti's sentence was unconstitutional under Miller, and (3) 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).

The June 27, 2014 order denying PCRA relief and the judgment of sentence entered on September 18, 2009, in this matter are vacated and

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the case is remanded for resentencing. The trial court is directed to appoint new counsel for Appellant. Jurisdiction relinquished.

Judge Wecht did not participate in the consideration or decision of this case.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/16/2016

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