Com. v. King, I. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
IVORY KING,
Appellant No. 3323 EDA 2014
Appeal from the PCRA Order dated November 7, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0003727-1998
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHN LEKKA,
Appellant No. 3333 EDA 2014
Appeal from the PCRA Order dated November 7, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0001295-1978
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 23, 2016
Appellant, Ivory King (King), appeals from the order denying, as
untimely, his petition for collateral review filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Appellant, John
Lekka (Lekka), appeals from the order denying, as untimely, his PCRA
petition. Both King and Lekka present the same issue for our review:
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whether the United States Supreme Court’s decision in Miller v. Alabama,
132 S.Ct. 2455 (2012), is retroactive in effect, so as to satisfy the
retroactivity exception to the PCRA’s time-bar, 42 Pa.C.S. §§ 9545(b)(1)(iii)
(“retroactively exception”). In both cases, the PCRA court ruled that Miller
was not retroactive due to the Pennsylvania Supreme Court’s decision in
Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013). In light of the
United States Supreme Court’s recent decision in Montgomery v.
Louisiana, No. 14-280, 2016 WL 280758 (U.S. 2016), which effectively
overruled Cunningham on the question of Miller’s retroactivity, we hold
that Miller is retroactive and, therefore, it satisfies the PCRA’s retroactivity
exception. Accordingly, we reverse the orders denying Appellants’ PCRA
petitions, vacate their life-without-parole sentences, and remand for further
proceedings.
We begin by briefly summarizing the factual and procedural histories
of the cases before us. On November 15, 1979, Lekka was sentenced to life
imprisonment without the possibility of parole, following his conviction for
first-degree murder and conspiracy. Lekka’s conviction arose from his
participation in the killing of seventeen-year-old Diane Goeke, the girlfriend
of Lekka’s co-defendant, Robert Buli. Following the discovery of Goeke’s
body in a wooded area of Bucks County, Lekka and Buli admitted to killing
Goeke. The murder occurred in 1978, when Lekka was seventeen years old.
Lekka filed a direct appeal on December 14, 1979, but withdrew it four
days later. He filed his first PCRA petition on July 8, 2010. The PCRA court
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dismissed that petition on October 27, 2010; that decision was affirmed by
this Court on August 24, 2011, and Lekka’s petition for allowance of appeal
to our Supreme was denied on December 23, 2011. Commonwealth v.
Lekka, 32 A.3d 841 (Pa. Super. 2011) (unpublished memorandum), appeal
denied, 34 A.3d 82 (Pa. 2011).
The matter before us concerns Lekka’s second PCRA petition (Lekka’s
Petition), filed on August 13, 2012. Therein, Lekka asserted that he was
entitled to a new sentencing hearing based on Miller, arguing that Miller
satisfied the PCRA’s retroactivity exception, thus allowing consideration of
his otherwise untimely petition. On December 10, 2012, the PCRA court
issued an order deferring its ruling on Lekka’s Petition pending the
Pennsylvania Supreme Court’s decision in Cunningham. On January 1,
2014, after Cunningham was decided, the PCRA court issued a second
order staying its decision on Lekka’s Petition pending the United States
Supreme Court’s review of Cunningham’s petition for a writ of certiorari.
Cunningham’s petition for a writ of certiorari was denied on June 9, 2014.
Cunningham v. Pennsylvania, 134 S.Ct. 2724 (2014). The PCRA court
issued a Pa.R.Crim.P. 907 notice of its intent to dismiss Lekka’s Petition on
October 3, 2014. Lekka filed a timely response, but the PCRA court
ultimately dismissed Lekka’s Petition by order dated November 7, 2014.
Lekka filed a timely notice of appeal with this Court on November 18, 2014.
Lekka had preemptively filed a Pa.R.A.P. 1925(b) statement on July
25, 2014, which the PCRA court addressed in its Rule 1925(a) opinion, filed
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on April 13, 2015. The timing of Lekka’s Rule 1925(b) statement is
immaterial, however, as the PCRA court never issued an order demanding a
Rule 1925(b) statement.
On October 28, 1998, King was sentenced to four consecutive terms of
life imprisonment without the possibility of parole, following his conviction on
four counts of first-degree murder and related offenses. King’s conviction
stemmed from a mass murder that occurred at a house party in Bristol
Borough earlier that same year, when King was seventeen years old. At
trial, Appellant did not contest that he had killed the four victims; instead,
he only contested his degree of guilt.
It does not appear that King filed a direct appeal. Instead, he filed a
PCRA petition, his first, on September 17, 1999. King withdrew that petition
on November 23, 1999. King filed a second PCRA petition in 2005, which
was denied by the PCRA court. This Court dismissed King’s appeal from that
decision on January 12, 2006, when he failed to file a brief. King filed his
third PCRA petition on September 11, 2007, which was denied by the PCRA
court on March 3, 2008. He filed his fourth PCRA petition on June 4, 2010,
which was denied by the PCRA court on August 18, 2010. King did not
appeal from the orders denying his third and fourth PCRA petitions.
The matter before us concerns King’s fifth PCRA petition (King’s
Petition), filed on July 5, 2012, wherein, by amendment of appointed counsel
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on October 21, 2012, King requested a new sentencing hearing, invoking the
Miller decision to satisfy the PCRA’s retroactivity exception. 1 On December
10, 2012, the PCRA court issued an order deferring its ruling on King’s
Petition pending the Pennsylvania Supreme Court’s decision in
Cunningham. On January 1, 2014, after Cunningham was decided, the
PCRA court issued a second order staying its decision on King’s Petition
pending the United States Supreme Court’s review of Cunningham’s petition
for a writ of certiorari. Cunningham’s petition for a writ of certiorari was
denied on June 9, 2014. The PCRA court issued a Rule 907 notice of its
intent to dismiss King’s Petition on October 3, 2014. King filed a timely
response on October 20, 2014. The PCRA court subsequently dismissed
King’s Petition by order dated November 7, 2014. King filed a timely notice
of appeal on November 18, 2014.
King also had preemptively filed a Rule 1925(b) statement on July 25,
2014, which the PCRA court addressed in its Rule 1925(a) opinion, dated
May 28, 2015. As is true with respect to Lekka, the timing of King’s Rule
1925(b) statement is immaterial, as the PCRA court never issued an order in
his case demanding a Rule 1925(b) statement.
Appellants, King and Lekka, are both represented by Stuart Wilder,
Esq. They raise identical issues and seek the same relief in their respective
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1
Other matters were raised in King’s Petition; however, King is only raising
his Miller issue in this appeal.
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appeals, which stem from similar procedural circumstances. Accordingly, for
ease of disposition, we consolidate their appeals in this memorandum.
Appellants present the following question for our review:
Did the lower court err when it denied … Appellant’s PCRA
petition, as he currently serves a sentence the Supreme Court of
the United States deemed unconstitutionally cruel and unusual,
and whose prohibition must be applied retroactively?
King’s Brief, at 4; Lekka’s Brief, at 4.2
Initially, we reiterate that 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). “However, we afford no such deference to its legal conclusions.
Where the petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.” Commonwealth v. Ford, 44 A.3d
1190, 1194 (Pa. Super. 2012) (internal citations omitted).
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2
Additionally, Appellants each petitioned this Court to stay their appeals
pending the outcome in Montgomery. Those petitions were denied, but
without prejudice to each Appellant’s right to raise that matter in their
briefs. Appellants both reasserted their requests to stay disposition pending
Montgomery in their respective briefs, and we held their cases until
Montgomery was decided.
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The issue before us is whether the PCRA court correctly ruled that
Appellants’ claims failed to satisfy a timeliness exception to the PCRA’s one-
year time-bar. The PCRA’s time limitations implicate our jurisdiction and
may not be altered or disregarded in order to address the merits of a
petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa.
2007). Under the PCRA, any petition for post-conviction relief, including a
second or subsequent one, must be filed within one year of the date the
judgment of sentence becomes final, unless one of the exceptions set forth
in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. That section states, in relevant
part:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition
alleges and the petitioner proves that:
(i) the failure to raise the claim previously was the
result of interference by government officials with
the presentation of the claim in violation of the
Constitution or laws of this Commonwealth or the
Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been
ascertained by the exercise of due diligence; or
(iii) 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.
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42 Pa.C.S. § 9545(b)(1)(i)-(iii). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, it is conceded that Appellants’ PCRA petitions are untimely.
They must, therefore, avail themselves of one the timeliness exceptions for
this Court to have jurisdiction to review the merits of their claims. As noted
above, Appellants argue the applicability of the retroactivity exception set
forth in Section 9545(b)(1)(iii). The PCRA court denied Appellants’ petitions
because it determined that it “must follow the holding in … Cunningham
that Miller does not apply retroactively.” Lekka’s PCRA Opinion, 4/13/15, at
12; King’s PCRA Opinion, 5/28/15, at 12 (quoting Lekka’s PCRA Opinion,
4/13/15, at 12).
The line of Eighth Amendment jurisprudence at issue began with the
United States Supreme Court’s landmark decision in Roper v. Simmons,
543 U.S. 551 (2005), which held that the Eighth Amendment prohibits
capital punishment for crimes committed by juveniles. The Supreme Court
took another step in Graham v. Florida, 556 U.S. 1220 (2009), extending
the reasoning of Roper to bar sentences of life imprisonment for non-
homicide crimes committed by juveniles. Finally, in Miller, relying on
Roper and Graham, the United States Supreme Court held that the Eight
Amendment also prohibits mandatory, life-without-parole sentences for
juveniles.
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In Pennsylvania, this line of decisions has had a dramatic effect on the
treatment of juveniles convicted of first- or second-degree murder. Prior to
Roper, the crimes of first- and second-degree murder could only result in
capital punishment (for first-degree murder) or life imprisonment without
the possibility of parole (LWOP). See 18 Pa.C.S. § 1102(a)-(b) (pre-2012
amendment). Consequently, after Roper, the only sentence applicable to
juveniles who committed either first- or second-degree murder in
Pennsylvania was LWOP. Graham has had less of an effect, as only a few
non-homicide crimes carry the penalty of life imprisonment in Pennsylvania.
See e.g., 42 Pa.C.S. § 9720.2. Miller, however, effectively eliminated all
sentencing options for juveniles who committed first- or second-degree
murder in Pennsylvania. Consequently, in reaction to Miller, Pennsylvania’s
Legislature amended 18 Pa.C.S. § 1102 to add 18 Pa.C.S. § 1102.1, which
provides a separate sentencing scheme for juveniles convicted of first- or
second-degree murder “after June 24, 2012[.]” 18 Pa.C.S. § 1102.1(a),
(c). Miller was decided on June 25, 2012.
Left unresolved in the immediate wake of Miller was whether that
decision was to be afforded retroactive effect. In Pennsylvania, that
question was (mostly) resolved in Cunningham. In Cunningham, our
Supreme Court considered a timely PCRA petition wherein the petitioner
claimed that his 2002 mandatory LWOP sentence, imposed for a second-
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degree murder he committed as a juvenile, had violated the Eighth
Amendment’s prohibition of cruel and unusual punishments.3 Applying
Teague v. Lane, 489 U.S. 288 (1989) (plurality),4 the Cunningham Court
flatly rejected Cunningham’s argument that Miller is a substantive
constitutional rule entitled to retroactive effect under Teague, concluding
that, “by its own terms,” Miller “is procedural and not substantive for
purposes of Teague.” Cunningham, 81 A.3d at 1. The Court did not
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3
Cunningham originally had relied on Roper to make this argument in the
PCRA court. Cunningham, 81 A.3d at 2.
The post-conviction court denied the petition without an
evidentiary hearing, and the Superior Court affirmed in a
memorandum opinion, concluding that Roper had no bearing on
life sentences. [The a]ppellant filed a petition for allowance of
appeal, which was held in abeyance pending the disposition of a
petition seeking discretionary review before this Court in
Commonwealth v. Batts, [66 A.3d 26 (Pa. 2013)]. The Batts
case concern[ed] a challenge to the imposition of a mandatory
life sentence for crimes committed by a minor asserted on direct
appeal.
Cunningham, 81 A.3d at 2. Miller was decided while a decision in
Cunningham was still pending. Consequently, the Pennsylvania Supreme
Court permitted the parties in Cunningham to supplement and/or reargue
their positions in light of Miller. Id. at 5.
4
As the Cunningham Court explained, Teague and its progeny expressed
a general rule that new constitutional rules are not subject to retroactive
effect, subject to two exceptions. Cunningham, 81 A.3d at 4. The Teague
exceptions are for “rules prohibiting a certain category of punishment for a
class of defendants because of their status or offense, … and watershed
rules of criminal procedure implicating the fundamental fairness and
accuracy of the criminal proceeding.” Id. (internal citations omitted).
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consider an alternative argument for retroactivity—whether Miller
constituted a ‘watershed rule of criminal procedure’—because Cunningham
had “not developed his arguments in such terms.” Id. The Pennsylvania
Supreme Court’s decision in Cunningham, that Miller does not apply
retroactively, mirrored the decisions of at least four other states, including
Louisiana; however, at least ten states ruled that Miller is retroactive.5
In Montgomery, the United States Supreme Court finally addressed
the split in state decisions that had considered Miller’s retroactivity.
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5
The Eighth Circuit recognized a split in state jurisdictions considering
Miller’s retroactivity, as they stood less than a year before Montgomery
was decided:
State high courts are split. Five held that Miller is not
retroactive. Ex parte Williams, ––– So.3d ––––, ––––, 2015
WL 1388138, at *13 (Ala. Mar. 27, 2015); People v. Carp, 496
Mich. 440, 852 N.W.2d 801, 832 (2014); State v. Tate, 130
So.3d 829, 841 (La. 2013); Commonwealth v. Cunningham,
622 Pa. 543, 81 A.3d 1, 10 (2013); Chambers v. State, 831
N.W.2d 311, 331 (Minn. 2013). Ten held that Miller is
retroactive. See Falcon v. State, ––– So.3d ––––, ––––, 2015
WL 1239365, at *9 (Fla. Mar. 19, 2015); Aiken v. Byars, 410
S.C. 534, 765 S.E.2d 572, 578 (2014); State v. Mares, 335
P.3d 487, 508 (Wyo. 2014); Petition of State, 166 N.H. 659,
103 A.3d 227, 236 (2014); People v. Davis, 379 Ill.Dec. 381, 6
N.E.3d 709, 722–23 (Ill. 2014); Ex parte Maxwell, 424 S.W.3d
66, 75 (Tex.Crim.App. 2014); State v. Mantich, 287 Neb. 320,
842 N.W.2d 716, 731 (2014); Diatchenko v. Dist. Att'y for
Suffolk Dist., 466 Mass. 655, 1 N.E.3d 270, 281 (2013); State
v. Ragland, 836 N.W.2d 107, 117 (Iowa 2013); Jones v.
State, 122 So.3d 698, 703 (Miss. 2013).
Martin v. Symmes, 782 F.3d 939, 945 (8th Cir. 2015), abrogated by
Montgomery, supra.
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Applying Teague, the Montgomery Court held “that Miller announced a
substantive rule of constitutional law.” Montgomery, 2016 WL 280758, at
*15. Contrary to our Supreme Court’s reasoning in Cunningham that the
rule announced in Miller was purely procedural in nature, the Montgomery
Majority reasoned:
To be sure, Miller's holding has a procedural component.
Miller requires a sentencer to consider a juvenile offender's
youth and attendant characteristics before determining that life
without parole is a proportionate sentence. Louisiana contends
that because Miller requires this process, it must have set forth
a procedural rule. This argument, however, conflates a
procedural requirement necessary to implement a substantive
guarantee with a rule that “regulate[s] only the manner of
determining the defendant's culpability.” There are instances in
which a substantive change in the law must be attended by a
procedure that enables a prisoner to show that he falls within the
category of persons whom the law may no longer punish. For
example, when an element of a criminal offense is deemed
unconstitutional, a prisoner convicted under that offense
receives a new trial where the government must prove the
prisoner's conduct still fits within the modified definition of the
crime. In a similar vein, when the Constitution prohibits a
particular form of punishment for a class of persons, an affected
prisoner receives a procedure through which he can show that
he belongs to the protected class. Those procedural
requirements do not, of course, transform substantive rules into
procedural ones.
The procedure Miller prescribes is no different. A hearing
where “youth and its attendant characteristics” are considered as
sentencing factors is necessary to separate those juveniles who
may be sentenced to life without parole from those who may
not. The hearing does not replace but rather gives effect to
Miller's substantive holding that life without parole is an
excessive sentence for children whose crimes reflect transient
immaturity.
Montgomery, at *14 (internal citations omitted).
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Thus, the Montgomery Court concluded that: “Like other substantive
rules, Miller is retroactive because it ‘necessarily carr[ies] a significant risk
that a defendant’—here, the vast majority of juvenile offenders—‘faces a
punishment that the law cannot impose upon him.’” Montgomery, at *13.
Accordingly, Montgomery has effectively overruled our Supreme Court’s
decision in Cunningham regarding Miller’s retroactivity.
Turning back to the instant matter, it is well-settled that:
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 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. Seskey, 86 A.3d 237, 242-43 (Pa. Super. 2014)
(quoting Commonwealth v. Copenhefer, 941 A.2d 646, 649–50 (Pa.
2007)). In Seskey, this Court applied Cunningham to hold that Miller did
not satisfy the PCRA’s retroactivity exception as set forth in Section
9545(b)(1). Id. at 243.
It is now clear that, in addition to Montgomery’s overruling of
Cunningham, Montgomery has also effectively overruled any decision
relying on Cunningham to reject Miller’s applicability to the PCRA’s
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retroactivity exception, as this Court did in Seskey. In the wake of
Montgomery, it is irrefutable that Miller is “a constitutional right that was
recognized by the Supreme Court of the United States” and “has been held
by that court to apply retroactively.” 42 Pa.C.S. § 9545(b)(1)(iii); see also
Commonwealth v. Secreti, ___ A.3d ___, 2016 WL 513341, (Pa. Super.
2016).6 Consequently, the PCRA court’s legal basis for denying King’s and
Lekka’s PCRA petitions is no longer valid. Thus, we hereby reverse the
orders denying King’s and Lekka’s PCRA petitions. Additionally, we vacate
their mandatory LWOP sentences, as they are patently illegal under Miller,
and remand for further proceedings consistent with this decision, Miller, and
Montgomery.
Orders reversed. Mandatory LWOP sentences vacated. Cases
remanded for further proceedings. Jurisdiction relinquished.
Judge Lazarus files a concurring and dissenting memorandum.
Judge Ott concurs in the result of this memorandum.
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6
In Secreti, this Court held that “the Miller rule of law ‘has been held’ to be
retroactive for purposes of collateral review as of the date of the Miller
decision on June 25, 2012. The date of the Montgomery decision (January
25, 2016, as revised on January 27, 2016) will control for purposes of the
60–day rule in Section 9545(b)(2).” Secreti, 2016 WL 513341 at *6.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/2016
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