Com. v. Cobbs, J. ( 2014 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAMES H. COBBS, :
:
Appellant : No. 13 WDA 2014
Appeal from the PCRA Order December 23, 2013,
Court of Common Pleas, Allegheny County,
Criminal Division at No. CP-02-CR-0008549-1970
BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 17, 2014
Appellant, James H. Cobbs (“Cobbs”), appeals from the order denying
his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§
9541-46 (the “PCRA”). Also before this Court is appointed counsel’s motion
to withdraw as counsel and an accompanying brief filed pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). For the following
reasons, we affirm the PCRA court’s order denying the petition and grant
counsel’s request to withdraw.
In its written opinion, the PCRA court provided the following concise
summary of the relevant procedural history:
This matter arises out of a pro se PCRA petition filed
by [Cobbs] on August 28, 2012. [Cobbs] alleged
that he was currently serving a mandatory sentence
of life without the possibility of parole for his
*Former Justice specially assigned to the Superior Court.
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conviction of first-degree murder on July 16, 1971.
[Cobbs] further alleged that he was under the age of
18 at the time of the offense. In his petition [Cobbs]
alleges that his mandatory sentence was
th
unconstitutional under the 8 Amendment of the
United States Constitution based on the United
States Supreme Court’s decision in Miller v.
Alabama, 132 S.Ct. 2455 (2012) which was decided
on June 25, 2012.
On September 6, 2012 counsel was appointed to
represent [Cobbs]. On September 19, 2012 a
Motion to Stay the PCRA proceedings was filed
pending the disposition of appeals pending before
the Pennsylvania Supreme Court in Commonwealth
v. Batts, 66 A.3d 286 (Pa. 2013) and
Commonwealth v. Cunningham, 81 A.3d 1 (Pa.
2013). On September 25, 2012 an order was
entered staying the proceedings pending the
disposition of Batts and Cunningham. On March
26, 2013, the Pennsylvania Supreme Court decided
Batts. On October 30, 2013, the Court decided
Cunningham. On November 20, 2013 an order was
entered placing [Cobbs] on notice of the [PCRA
court’s] intent to dismiss his petition without a
hearing based on the Supreme Court’s decision in
Cunningham which held that the ruling in Miller
was not retroactive. On December 9, 2013, [Cobbs]
filed a response to the Notice of Intent to Dismiss
Order[1] and on December 23, 2013 an Order was
entered dismissing his PCRA Petition. On December
30, 2013, [Cobbs] filed the instant appeal.
Trial Court Opinion, 7/10/2014, at 2-3 (footnotes omitted). On August 13,
2014, appointed counsel filed an Application for Leave to Withdraw as
counsel under Turner and Finley, attaching a “no merit” appellate brief and
1
Cobbs also included an amended PCRA petition with this filing.
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a letter to Cobbs advising him, inter alia, of her intention to withdraw from
representation.
Before considering the issues appointed counsel asserts Cobbs wants
to raise on appeal, we first must consider whether appointed counsel has
complied with the requirements for counsel to withdraw pursuant to Turner
and Finley. We previously explained this procedure as follows.
Turner/Finley counsel must review the case
zealously. Turner/Finley counsel must then submit
a “no-merit” letter to the trial court, or brief on
appeal to this Court, detailing the nature and extent
of counsel’s diligent review of the case, listing the
issues which the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and
requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy
of the “no-merit” letter/brief; (2) a copy of counsel’s
petition to withdraw; and (3) a statement advising
petitioner of the right to proceed pro se or by new
counsel.
If counsel fails to satisfy the foregoing technical
prerequisites of Turner/Finley, the court will not
reach the merits of the underlying claims but, rather,
will merely deny counsel’s request to withdraw.
Upon doing so, the court will then take appropriate
steps, such as directing counsel to file a proper
Turner/Finley request or an advocate’s brief.
However, where counsel submits a petition and no-
merit letter that do satisfy the technical demands of
Turner/Finley, the court - trial court or this Court -
must then conduct its own review of the merits of
the case. If the court agrees with counsel that the
claims are without merit, the court will permit
counsel to withdraw and deny relief. By contrast, if
the claims appear to have merit, the court will deny
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counsel’s request and grant relief, or at least instruct
counsel to file an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007).
Instantly, appointed counsel’s Application for Leave to Withdraw as
Counsel contains her representations that she has examined the record, case
law, relevant statutes, and correspondence from Cobbs, and that she has
advised Cobbs in a letter of her legal conclusion that his issues lack any
merit. Application, 8/13/2014, at ¶¶ 13-14. Appointed counsel mailed
copies of the Application for Leave to Withdraw as Counsel and the “no
merit” brief filed with this Court as attachments to her letter to Cobbs, in
which she advised him of his right to proceed pro se or through privately-
retained counsel. For these reasons, we conclude that appointed counsel
has substantially complied with the mandates of Turner and Finley.
We thus proceed with our own review of the merits of Cobbs’ claims on
appeal, which are set forth in the “no merit” brief as follows:
1. Whether the PCRA court erred in denying PCRA relief
on the basis that the PCRA proceeding was untimely?
2. Whether the United States Supreme Court held that
the rule in Miller v. Alabama, by applying said rule
in the companion case of Jackson v. Hobbs, applies
retroactively to cases where direct review had
concluded prior to the announcement of said rule in
Miller v. Alabama?
3. Whether Commonwealth v. Batts, --- Pa. ---, 66
A.3d 286 (2013) recognized a rule of constitutional
law under the Pennsylvania Constitution similar to
that in Miller v. Alabama and does the rule in
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Batts apply retroactively to cases where direct
review concluded prior to the announcement of said
rule in Batts?
Brief for Appellant at 3. When we review the propriety of a PCRA court’s
order, we are limited to determining whether the court’s findings are
supported by the record and whether the order in question is free of legal
error. Commonwealth v. Grant, 992 A.2d 152, 156 (Pa. Super. 2010).
This Court will not disturb the PCRA court’s findings if there is any support
for the findings in the certified record. Id.This Court recently addressed Cobbs’ first two issues in
Commonwealth v. Seskey, 86 A.3d 237 (Pa. Super. 2014), in which we
stated as follows:
[T]he facial untimeliness of Appellant's petition
renders this Court (indeed, any court) without
jurisdiction to review the substantive claims that
Appellant raises … unless one of the three exceptions
to the PCRA's time-bar applies. The only potentially
applicable exception is subsection 9545(b)(1)(iii),
the newly-recognized, and retroactively-applied,
constitutional right exception predicated upon the
Supreme Court's decision in Miller.
Subsection (iii) of Section 9545[(b)(1)]
has two requirements. First, it provides
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 provided in this section.
Second, it provides that the right ‘has
been held’ by ‘that court’ to apply
retroactively. Thus, a petitioner must
prove that there is a ‘new’ constitutional
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right and that the right ‘has been held’
by that court to apply retroactively. The
language ‘has been held’ is in the past
tense. These words mean that the action
has already occurred, i.e., ‘that court’
has already held the new constitutional
right to be retroactive to cases on
collateral review. By employing the past
tense in writing this provision, the
legislature clearly intended that the right
was already recognized at the time the
petition was filed.
Commonwealth v. Copenhefer, 596 Pa. 104, 941
A.2d 646, 649–50 (2007) (quoting Commonwealth
v. Abdul–Salaam, 571 Pa. 219, 812 A.2d 497, 501
(2002)).
Recently, in Cunningham, our Supreme Court held
that the constitutional right announced by the United
States Supreme Court in Miller does not apply
retroactively. 81 A.3d at 10. Consequently,
Appellant cannot rely upon Miller or subsection
9545(b)(iii) to establish jurisdiction over his untimely
PCRA petition in any Pennsylvania court. Hence, we
lack jurisdiction to review the merits of Appellant's
issues
Id. at 242-43.
Cobbs attempts to circumvent the effect the ruling in Cunningham
has upon our jurisdiction by arguing that the companion case to Miller
(Jackson v. Hobbs) should have led to a different result in Cunningham.
This argument is likewise unavailing. As this Court made clear in Seskey,
based upon our Supreme Court’s decision in Cunningham, which this Court
is bound to follow, along with the statutory time limits for filing petitions for
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relief under the PCRA, we lack any jurisdiction to consider other substantive
arguments on their merits:
While these arguments someday may require
consideration by our courts, today cannot be that
day. Before a court may address Appellant's
arguments, or similar contentions, that court must
have jurisdiction. We cannot manufacture
jurisdiction based upon the substantive claims raised
by the parties. Presently, we are confined by the
express terms of subsection 9545(b)(1)(iii) and our
Supreme Court's decision in Cunningham.
Combined, those two elements require us to
conclude that we lack jurisdiction. No substantive
claim can overcome this conclusion.
Id. at 243.
With respect to Cobbs’ third issue, in Batts our Supreme Court held
that the appropriate remedy on direct appeal for a Miller-type constitutional
violation is to remand the case to the trial court for re-sentencing in
accordance with the dictates of Miller. Batts, 66 A.3d at 293-95. Batts
did not, however, address the retroactivity of the Miller decision in
connection with subsection 9545(b)(1)(iii) of the PCRA. As indicated
hereinabove, our Supreme Court decided that issue in Cunningham.
Moreover, and more importantly, Batts did not create or identify any new
constitutional right that would provide Cobbs with a basis for filing a PCRA
claim beyond the one-year time bar based pursuant to the exception in
subsection 9545(b)(1)(iii). As such, Batts provides Cobbs with no
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meritorious argument that his PCRA petition was timely or that this Court
has any jurisdiction to consider his substantive claims.
For these reasons, we agree with appointed counsel that all of Cobbs’
issues are without merit. We therefore grant appointed counsel’s petition to
withdraw and deny any relief to Cobbs.
Order affirmed. Motion to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2014
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