Com. v. Miller, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 MILLER
Appellant No. 31 WDA 2014
Appeal from the PCRA Order December 4, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001854-1981
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 22, 2014
James Miller appeals from the trial court’s order denying his third
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546. Miller was found guilty of second-degree murder and related
charges in August 1981; he was a juvenile at the time he committed the
crimes. On February 5, 1982, Miller was sentenced to life in prison without
the possibility of parole.
On appeal, Miller presents the following issues for our review:
(1) Whether the PCRA Court violated Rule 904(F) of the
Pennsylvania Rules of Criminal Procedure in ordering that
appointed counsel be dismissed from the case (or not be
paid) after counsel had been appointed to represent
Appellant.
(2) Whether the PCRA Court violated Rule 905(A) of the
Pennsylvania Rules of Criminal Procedure by failing to
grant Appellant’s motion to amend the PCRA petition.
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(3) Whether the PCRA Court violated Appellant’s rights under
the Eighth Amendment when Appellant continues to serve
a life sentence without the possibility of parole which was
imposed when Appellant was a juvenile.
(4) Whether Appellant’s rights under Article I, Section 13 of
the Pennsylvania Constitution [were] violated and whether
Pennsylvania law allows for retroactivity of Miller.
(5) Whether Appellant was entitled to habeas corpus relief
when Appellant continues to serve a life sentence without
the possibility of parole which was imposed when Appellant
was a juvenile.
On July 30, 2012, Miller filed the instant pro se PCRA petition asserting
that pursuant to the United States Supreme Court’s decision in Miller v.
Alabama, 132 S.Ct. 2455 (2012),1 his life sentence is illegal. Counsel,
Thomas N. Farrell, Esquire, was appointed to represent Miller; counsel
subsequently filed an amended PCRA petition. On July 29, 2013, Assistant
District Attorney Ronald Wabby filed a motion to stay the proceedings while
the issue of retroactive application of Miller was pending on appeal to our
Supreme Court. The court stayed the proceedings on August 28, 2013, and,
on October 30, 2013, the Pennsylvania Supreme Court determined that the
Miller holding2 does not apply retroactively to an inmate, serving a life
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1
In Miller, the Supreme Court held that sentencing juveniles, under the age
of 18 at the time they committed a homicide offense, to mandatory life
imprisonment without the possibility of parole is a violation of the Eight
Amendment’s prohibition on cruel and unusual punishment.
2
The Miller holding does not qualify as a section 9545(b) exception under
the PCRA. See Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013)
(Supreme Court’s Miller decision does not qualify as timeliness exception
under sections 9545(b)(1)(ii) or (iii) of the PCRA).
(Footnote Continued Next Page)
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sentence without parole, who has exhausted his direct appeal rights and is
proceeding under the PCRA. See Commonwealth v. Cunningham, 81
A.3d 1 (Pa. 2013), cert. denied, 134 S.Ct. 2724 (2014).3
On November 6, 2013, Attorney Farrell filed a motion to stay the PCRA
proceedings until the United States Supreme Court ruled upon
Cunningham. On November 14, 2013, the PCRA court issued a
Pa.R.Crim.P. 907 notice of its intent to dismiss the PCRA petition. Counsel
filed a timely response to the Rule 907 notice, again requesting a stay, or, in
the alternative, leave to file an amended PCRA petition to raise the claim
that Miller violates Article I, Section 13 of the Pennsylvania Constitution.
On December 4, 2013, the court issued its final order denying PCRA relief
based on the holding of Cunningham that Miller is not retroactive and,
thus, does not apply to cases on collateral review. The PCRA court’s order
also states “[t]he defendant is not entitled to have appointed counsel
represent him in this matter.” Trial Court Order, 12/4/13. Counsel filed a
timely notice of appeal on January 6, 2014.
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(Footnote Continued)
3
The U.S. Supreme Court denied the petition for certiorari in Cunningham
on June 9, 2014. Moreover, most recently in Commonwealth v. Hancock,
230 WAL 2014 (filed Sept. 9, 2014) (Pa. 2014), our Supreme Court denied
allowance of appeal from our Court’s en banc decision, Commonwealth v.
Hancock, 178 WDA 2012 (filed May 6, 2014) (Pa. Super. 2014), which
effectively affirmed the Cunningham decision.
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On appeal, Miller4 argues that, in contravention of Pa.R.Crim.P. 904,
the trial court improperly determined that he was not entitled to have
previously appointed PCRA counsel represent him any further in the matter.
Miller claims that not only is he entitled to counsel throughout any collateral
proceeding resulting from the denial of his PCRA petition, see Pa.R.Crim.P.
904(F)(2), but that without appointed counsel he has been denied the right
to have a counseled, amended petition pursuing equitable relief under the
PCRA, and may have also waived any future issue concerning potential state
constitutional violations as a result of the inequitable ruling in Miller.
The Commonwealth agrees that the trial court acted in error by
ordering that Miller was no longer entitled to have PCRA counsel represent
him in the matter. See Commonwealth’s Brief, at 10-14. The
Commonwealth suggests that this error be rectified by a formalized court
order.
Despite the fact that the trial court erroneously advised Miller that he
could no longer be represented on appeal, Attorney Farrell has filed Miller’s
instant notice of appeal from the denial of his PCRA petition, filed three
petitions for extension of time within which to file Miller’s appellate brief, and
has actually filed an appellate brief on behalf of Miller. Therefore, Miller is,
in effect, represented on appeal. Because we find that he has not been
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4
Despite court order, Attorney Farrell filed Appellant’s Brief on appeal.
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deprived of appellate representation, we will, therefore, address counsel’s
issues raised on his behalf.
Miller next claims that by failing to grant him relief from serving a life
sentence without the possibility of parole, the PCRA court violated his
constitutional rights under the Eighth Amendment of the federal constitution
and Article I, Section 13 of the Pennsylvania Constitution.
Recently, in Commonwealth v. Seskey,5 86 A.3d 237 (Pa. Super.
2014), appeal denied, No. 245 WAL 2014, 2014 Pa. LEXIS 2546 (filed Sept.
30, 2014) (Pa. 2014), a petitioner raised the same constitutional arguments
that Miller advances here. Specifically, the petitioner alleged that his life
sentence constituted cruel and unusual punishment under both the Eighth
Amendment and Article I, Section 13 of the Pennsylvania Constitution. Id.
at 240. The petitioner argued that the Miller holding should be applied
retroactively and his case should be remanded for resentencing. Id. During
the pendency of the Seskey case at the post-PCRA level, our Supreme Court
issued its Cunningham decision, holding that Miller did not apply
retroactively. In light of Cunningham, the petitioner filed a motion seeking
leave to file a supplemental brief on appeal raising the aforementioned
issues. Id. at 241. Our Court granted his request. Id.
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5
To avoid confusion, a prior decision from our Court spelled defendant’s last
name as Sesky. See Commonwealth v. Sesky, 676 A.2d 286 (Pa. Super.
1996).
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Ultimately, on appeal, the Seskey panel determined that the
petitioner’s claims were non-waivable challenges to the legality of his
sentence, despite the fact that the claims were not included in his untimely
PCRA petition or his Pa.R.A.P. 1925(b) concise statement. Id. However, the
Court reiterated the time requirements under the PCRA, noting that such
restrictions are jurisdictional in nature and that waiver is a completely
separate matter from a court’s jurisdiction to review non-waivable claims.
Id.Notably, the Seskey Court pointed out that to invoke a timeliness
exception under the PCRA, specifically the new constitutional right exception
embodied in 42 Pa.C.S. § 9545(b)(1)(iii), two requirements must be met:
(1) 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; and (2) the right “has been held” by
“that court” to apply retroactively. Id. at 242-43. See also
Commonwealth v. Lawson, 90 A.3d 1, 6 (Pa. Super. 2014) (PCRA’s
section 9545(b)(1)(iii) exception applied only where “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 [] section [9545] and has been held by that court to apply
retroactively.”). With regard to the “has been held” prong under section
9545(b)(1)(iii), our Court stated:
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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 appeal. 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.
Seskey, 86 A.3d at 243 (emphasis added) (citing Commonwealth v.
Copenhefer, 941 A.2d 646, 649-50 (Pa. 2007) (quoting Commonwealth
v. Abdul—Salaam, 812 A.2d 497, 501 (Pa. 2002)). Because the
petitioner’s claims did not meet either of the requirements under section
9545(b)(1)(iii), Seskey’s untimely petition was properly dismissed for lack of
jurisdiction. Seskey, 86 A.3d at 243.
Instantly, Miller’s PCRA petition, like the petition in Seskey, is facially
untimely. Under the PCRA, a petitioner must file his petition within one year
of the date that his judgment of sentence becomes final. 42 Pa.C.S. §
9545(b)(1). Here, Miller’s judgment of sentence became final, for purposes
of the PCRA, on August 11, 1984, when the time expired for him to file a
petition for writ of certiorari with the United States Supreme Court from the
denial of his petition for allowance of appeal from our Supreme Court. See
42 Pa.C.S. § 9545(b)(3); Sup. Ct. R. 13.
Moreover, because Miller has not proven any exception to the PCRA’s
time bar provisions, including the newly recognized constitutional right
exception, the trial court properly dismissed Miller’s untimely petition for lack
of jurisdiction. See Seskey, 86 A.3d at 243 (“We are confined by the
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express terms of subsection 9545(b)(1)(iii) and our Supreme Court’s
decision in Cunningham. Combined, these two elements require us to
conclude that we lack jurisdiction. No substantive claim can overcome this
conclusion.”); see also Commonwealth v. Geer, 936 A.2d 1075 (Pa.
Super. 2007) (time limitations imposed by PCRA implicate trial court’s
jurisdiction and may not be altered or disregarded in order to address merits
of petition). Because at the time Miller filed his petition there was no newly-
recognized and retroactively-applied constitutional right, state or federal, he
cannot overcome the PCRA timing requirements. Seskey, supra.6
Having determined that Miller’s state constitutional argument could not
afford him any post-conviction collateral relief, we find that the trial court
did not abuse its discretion in denying his request to file a second amended
PCRA petition raising such a meritless claim. See Pa.R.Crim.P.905(A) (“The
judge may grant leave to amend . . . a petition for post-conviction collateral
relief at any time.”) (emphasis added); see also Pa.R.Crim.P. 907 (when
judge satisfied no genuine issues concerning material fact and defendant not
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6
We note, however, that if in the future the Pennsylvania Supreme Court
were to find that a newly-recognized and retroactively-applied constitutional
right does exist pursuant to Miller, Miller would not be foreclosed from filing
a petition pleading and proving such state constitutional claims under section
9545(b)(1)(iii), within the timing parameters set forth in 42 Pa.C.S.A. §
9545(b)(2).
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entitled to post-conviction collateral relief, no purpose served by any further
proceedings).7
Moreover, Miller’s argument that he is entitled to relief under our
Commonwealth’s habeas corpus procedure, 42 Pa.C.S. §§ 6501-6505, is
made to no avail. If counsel believes that a petition for writ of habeas
corpus is the appropriate vehicle by which to bring Miller’s claim, then he
must file such pleading. In that writ, Miller must clearly articulate how and
why the claim should be considered under the umbrella of habeas relief and
why the cases cited in his appellate brief which have extended relief to such
individuals under Megan’s Law, defendants with sentencing delays and
unfavorable prisoner conditions, apply in the Miller/Cunningham context.
See Seskey, 86 A.3d at 244.
Order affirmed. Case remanded for trial court to amend PCRA order
consistent with the dictates of this decision.8 Jurisdiction relinquished.
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7
Moreover, to the extent that counsel’s request to stay the proceedings
below for the possible grant of certiorari in Cunningham by the United
States Supreme Court, we note that since the filing of counsel’s stay request
in November 2013, the Supreme Court has denied review of that case. See
Cunningham v. Pennsylvania, 134 S.Ct. 2724 (filed June 9, 2014).
Therefore, this request is implicitly denied as moot.
8
Our courts have consistently interpreted Rule 904(F)(2) and its
predecessors to extend the right of representation through the appeals
process. Commonwealth v. Jackson, 965 A.2d 280, 283 (Pa. Super.
2009). Because the PCRA court’s December 4, 2013, order advising Miller
that he “is not entitled to have appointed counsel represent him in the
matter,” contravenes Pa.R.Crim.P. 904(F)(2), we hereby remand the instant
case to the trial court for amendment of the order denying PCRA relief. As
(Footnote Continued Next Page)
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2014
_______________________
(Footnote Continued)
Rule 904(F)(2) states, “[w]hen counsel is appointed, the appointment of
counsel shall be effective throughout the post-conviction collateral
proceedings, including any appeal from disposition of the petition for post-
conviction collateral relief.” See Pa.R.Crim.P. 904(F)(2); see also
Comment, Rule 904(F) (“Pursuant to paragraphs (F)(2) and (H)(2)(b),
appointed counsel retains his or her assignment until final judgment, which
includes all avenues of appeal through the Supreme Court of
Pennsylvania.”) (emphasis added).
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