Com. v. Thomas, J. ( 2015 )


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  • J-S65014-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    JAMIL THOMAS,
    Appellant                   No. 2528 EDA 2014
    Appeal from the PCRA Order Entered July 21, 2014
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-1003182-2003
    BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.
    MEMORANDUM BY BENDER, P.J.E.:                  FILED NOVEMBER 12, 2015
    Appellant, Jamil Thomas, appeals from the July 21, 2014 order
    denying his petition filed under the Post Conviction Relief Act (PCRA), 42
    Pa.C.S. §§ 9541-9546. We affirm.
    A detailed recitation of the facts of Appellant’s case is not necessary to
    assess the single issue he presents on appeal.        However, we note the
    following procedural history of his case.   In December of 2004, Appellant
    was convicted by a jury of first-degree murder, and other related offenses,
    stemming from the shooting death of Darnell Clark, which occurred when
    Appellant was 15 years old. For his murder conviction, Appellant received a
    mandatory sentence of life imprisonment, without the possibility of parole.
    Appellant filed a timely direct appeal, and this Court affirmed his judgment
    of sentence after concluding that he had waived all claims by not filing a
    J-S65014-15
    timely Pa.R.A.P. 1925(b) concise statement of errors complained of on
    appeal.    Commonwealth v. Thomas, No. 880 EDA 2005, unpublished
    memorandum at 3-4 (Pa. Super. filed February 12, 2007).            On July 17,
    2008, our Supreme Court denied Appellant’s petition for allowance of appeal.
    See Commonwealth v. Thomas, 
    954 A.2d 577
     (Pa. 2008).
    Thereafter, Appellant filed a timely PCRA petition          seeking the
    reinstatement of his direct appeal rights.       That petition was granted, and
    Appellant filed a nunc pro tunc direct appeal with this Court on December
    28, 2009.       On September 28, 2010, this Court once again affirmed
    Appellant’s judgment of sentence, after which our Supreme Court denied his
    subsequent petition for allowance of appeal. Commonwealth v. Thomas,
    
    13 A.3d 996
     (Pa. Super. 2010) (unpublished memorandum), appeal denied,
    
    24 A.3d 864
     (Pa. 2011).
    On January 3, 2012, Appellant filed a timely, pro se PCRA petition
    underlying the present appeal. Counsel was appointed and filed an amended
    petition on Appellant’s behalf on April 1, 2014.1            Therein, Appellant
    maintained that his mandatory term of life imprisonment, imposed for an
    offense he committed as a juvenile, is illegal pursuant to the Supreme Court
    ____________________________________________
    1
    The record indicates that the delay in counsel’s filing of Appellant’s
    amended petition occurred because counsel initially filed a petition to
    withdraw from representing Appellant. However, after Appellant responded
    to the petition to withdraw, counsel changed course and filed an amended
    petition on Appellant’s behalf.
    -2-
    J-S65014-15
    of the United States’ decision in Miller v. Alabama, 
    132 S.Ct. 2455
     (2012)
    (holding that mandatory life imprisonment without parole for those who are
    under 18 at the time of their crimes violates the Eighth Amendment’s
    prohibition on cruel and unusual punishment).         See Memo in Support of
    Amended Petition, 4/1/14, at 4 (unnumbered).               However, Appellant
    acknowledged    that   our   Supreme   Court   held   in   Commonwealth      v.
    Cunningham, 
    81 A.3d 1
     (Pa. 2013), that the rule announced in Miller does
    not apply retroactively to cases on collateral review.         
    Id.
       Appellant
    conceded that the PCRA court could not afford him relief in light of
    Cunningham, but stated that he was nevertheless asserting a challenge to
    his sentence premised on Miller in order “to preserve the issue pending
    further decisions of our state and/or federal courts.” 
    Id.
    On June 23, 2014, the PCRA court issued a Pa.R.Crim.P. 907 notice of
    its intent to dismiss Appellant’s petition without a hearing. Appellant filed a
    pro se response to that notice, but on July 21, 2014, the court issued an
    order dismissing his petition.   In an opinion accompanying that order, the
    PCRA court concluded that pursuant to Cunningham, Appellant was not
    entitled to retroactive application of Miller on collateral review. See PCRA
    Court Opinion, 7/21/14, at 2.
    Appellant filed a timely notice of appeal. The PCRA court did not direct
    him to file a Rule 1925(b) concise statement of errors complained of on
    appeal.   Herein, he presents one question for our review: “Did the PCRA
    court err when it denied [Appellant] relief on his amended post[-]conviction
    -3-
    J-S65014-15
    petition where [Appellant] was seeking a new sentencing hearing as he was
    a juvenile who had been given a life sentence?          Appellant’s Brief at 3
    (unnecessary capitalization omitted).
    Our standard of review regarding an order denying post conviction
    relief under the PCRA is whether the determination of the court is supported
    by the evidence of record and is free of legal error.       Commonwealth v.
    Ragan, 
    923 A.2d 1169
    , 1170 (Pa. 2007). This Court grants great deference
    to the findings of the PCRA court, and we will not disturb those findings
    merely    because    the    record    could   support   a   contrary   holding.
    Commonwealth v. Touw, 
    781 A.2d 1250
    , 1252 (Pa. Super. 2001).               The
    PCRA court’s findings will not be disturbed unless there is no support for the
    findings in the certified record. Commonwealth v. Carr, 
    768 A.2d 1164
    ,
    1166 (Pa. Super. 2001).
    In Appellant’s brief, he reiterates that his sentence is unconstitutional
    under Miller, but again states that Cunningham precludes him from
    obtaining relief on collateral review. See Appellant’s Brief at 8-9. Appellant
    also reiterates that he is presenting this challenge to his sentence in order
    “to preserve the issue….” Id. at 8.
    We conclude that the PCRA court did not err in determining that,
    pursuant to Cunningham, the rule expressed in Miller does not apply
    retroactively to Appellant’s case, where his judgment of sentence became
    final prior to Miller’s issuance, and he offers no novel arguments regarding
    Miller’s retroactivity.    See Cunningham, 81 A.3d at 11 (“[N]othing in
    -4-
    J-S65014-15
    Appellant’s arguments persuades us that Miller’s proscription of the
    imposition of mandatory life-without-parole sentences upon offenders under
    the age of eighteen at the time their crimes were committed must be
    extended to those whose judgments of sentence were final at the time of
    Miller’s announcement.”).2
    However, we point out that the Supreme Court of the United States
    recently granted a petition for writ of certiorari in Montgomery v. State of
    Louisiana, 
    135 S.Ct. 1546
     (2015), in which the Court may decide the issue
    of whether Miller adopted a new substantive rule that applies retroactively
    ____________________________________________
    2
    Notably, the Cunningham Court did not decide whether Miller’s holding
    qualifies as a watershed rule of criminal procedure, satisfying the second
    exception to the general rule of non-retroactivity delineated in Teague v.
    Lane, 
    489 U.S. 288
     (1989) (plurality). See Cunningham, 81 A.3d at 10
    (declining to assess the second Teague exception because the appellant did
    “not develop[] his argument in such terms”).          Additionally, both the
    Cunningham Majority, as well as Justice Castille in his concurring opinion,
    acknowledged that the Court did not address whether there is a basis under
    Pennsylvania constitutional law to afford a broader retroactive application to
    Miller.    See Cunningham, 81 A.3d at 9, 13, 17-18 (Castille, J.,
    concurring). Indeed, our Court has recognized that retroactivity arguments
    premised upon state law – raised in a timely PCRA petition - are not
    foreclosed by Cunningham and could be considered by this Court. See
    Commonwealth v. Seskey, 
    86 A.3d 237
    , 243 (Pa. Super. 2014) (noting
    that while the appellant’s attempts to circumvent Cunningham based upon
    Pennsylvania state constitutional law “someday may require consideration by
    our courts,” we did not have jurisdiction to examine those claims because
    they were raised in an untimely PCRA petition). Here, however, Appellant
    does not raise any of the above-mentioned arguments on appeal, and he
    also did not assert such arguments before the PCRA court. Therefore,
    Cunningham forecloses Appellant from obtaining retroactive application of
    Miller.
    -5-
    J-S65014-15
    on collateral review. If the Supreme Court ultimately holds in Montgomery
    that Miller does apply retroactively, Appellant may seek relief by filing a
    PCRA petition within 60 days of Montgomery’s issuance, asserting the
    applicability of the PCRA timeliness exception set forth in 42 Pa.C.S. §
    9545(b)(1)(iii) (excepting a PCRA petition from the one-year timeliness
    requirement where the petitioner proves that “the right asserted is a
    constitutional right that was recognized by the Supreme Court of the United
    States or the Supreme Court of Pennsylvania after the time period provided
    in this section and has been held by that court to apply retroactively”).
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 11/12/2015
    -6-
    

Document Info

Docket Number: 2528 EDA 2014

Filed Date: 11/12/2015

Precedential Status: Non-Precedential

Modified Date: 12/13/2024