Commonwealth v. Taylor, P., Aplt.

[J-19-2022] [MO: Brobson, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 793 CAP
:
Appellee : Appeal from the Order entered on
: June 23, 2021 in the Court of
: Common Pleas, York County,
v. : Criminal Division at No. CP-67-CR-
: 0001762-1991.
:
PAUL G. TAYLOR, : SUBMITTED: February 7, 2022
:
Appellant :
DISSENTING OPINION
JUSTICE DONOHUE DECIDED: September 29, 2022
I agree that Paul G. Taylor has not shown that his petition satisfies one of the three
statutory exceptions to the one-year time-bar. Taylor asserts that Commonwealth v.
Koehler, 229 A.3d 915 (Pa. 2020), recognized a constitutional right that applies
retroactively per 42 Pa.C.S. § 9545(b)(1)(iii). While I disagree with some aspects of the
Majority’s discussion regarding the continued viability of our caselaw with respect to some
components of retroactivity jurisprudence, see generally Commonwealth v. Reid, 235
A.3d 1124, 1177-80 (Pa. 2020) (Donohue, J., dissenting), I conclude that Koehler does
not require retroactive application under Teague v. Lane, 489 U.S. 288 (1989).1 Simply
1 This Court “generally has looked to the Teague doctrine in determining retroactivity of
new federal constitutional rulings.” Commonwealth v. Cunningham, 81 A.3d 1, 8 (Pa.
2013). Taylor suggests that this Court should employ a broader test, a possibility raised
by Cunningham itself. Id. at 9. As I conclude that existing caselaw provides an avenue
for relief, I do not further address this claim.
put, Koehler does not “place certain criminal laws and punishments altogether beyond
the State’s power to impose.” Montgomery v. Louisiana, 577 U.S. 190, 201 (2016).
Additionally, Edwards v. Vannoy, 141 S. Ct. 1547 (2021), held that as a matter of federal
law new rules of criminal procedure—in that case the right to conviction by a unanimous
jury for serious offenses—do not apply retroactively under Teague. Thus, assuming
arguendo that Koehler announced a “new” rule as opposed to applying settled precedent,
the PCRA’s time-bar exception for new constitutional rights does not apply.
Had Taylor sought relief only under the PCRA, I would be inclined to join the Court.
However, I respectfully dissent because I disagree with the Majority’s disposition of
Taylor’s alternative request to grant relief as a matter of habeas corpus principles. I
conclude that the circumstances of this case warrant application of the rule established
by an analogous case, Commonwealth v. Cruz, 851 A.2d 870, 871 (Pa. 2004). Cruz
involved a claim of “disparate treatment on direct appellate review, as compared to that
afforded to a co-defendant[.]” Id. We concluded that habeas corpus “is presently
available on collateral review in the particularized circumstances presented.” Id. at 878.
I find that this situation presents an analogous “particularized circumstance”
justifying habeas corpus relief that is available outside of the PCRA’s statutory
requirements. In Cruz, Cruz and his co-defendant Melendez both raised Article I, Section
8 claims challenging a warrantless entry. The Superior Court denied relief to both
defendants and both petitioned this Court for discretionary review. We granted Cruz’s
petition but later dismissed it as improvidently granted over the dissents of Justices Cappy
and Zappala. We then decided Melendez’s case and reversed the Superior Court.
Commonwealth v. Melendez, 676 A.2d 226, 228 (Pa. 1996).
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Meanwhile, Cruz’s sentence had become final and he unsuccessfully sought relief
under the PCRA. The Superior Court affirmed, explaining that Cruz “was improperly
attempting to relitigate his search and seizure claim, and was not entitled to ‘retroactive’
application of the Melendez decision.” Cruz, 851 A.2d at 874. We granted allowance of
appeal and reversed. Regarding the applicability of the PCRA, the Court stated:
We are aware of, and generally enforce according to its plain
terms, the statutory bar against relitigation of claims on
collateral review under the PCRA. See 42 Pa.C.S. §
9543(a)(2). As Appellant notes, however, by its effort to
channel the broadest category of post-conviction claims into
the statutorily-prescribed procedures, the Legislature
implemented a scheme that must necessarily be deemed to
take into account facets of traditional habeas corpus
jurisprudence, see Chester, 557 Pa. at 375-76, 733 A.2d at
1250-51; Lantzy, 558 Pa. at 223, 736 A.2d at 569-70, under
which previous litigation does not function as a never-yielding
bar to the possibility of collateral relief. See, e.g., Darr v.
Burford, 339 U.S. 200, 214-15, 70 S.Ct. 587, 596, 94 L.Ed.
761 (1950) (“All authorities agree that res judicata does not
apply to applications for habeas corpus. The courts must be
kept open to guard against injustice through judicial
error.”), overruled in part on other grounds, Fay v. Noia, 372
U.S. 391, 435-36, 83 S.Ct. 822, 847, 9 L.Ed.2d 837(1963); accord Duncan v. Kerby, 115 N.M. 344, 851 P.2d 466,
468-69 (1993), cited with approval in Commonwealth v.
Grant, 572 Pa. 48, 63-64 & n. 13, 813 A.2d 726, 735-36 & n.
13 (2002). Indeed, in other instances involving unique
circumstances embodying manifest error or irregularity in the
chain of previous litigation, this Court and others have found
that the doctrine need not be regarded as dispositive on
collateral review. See Commonwealth v. Tyson, 535 Pa. at
394-95, 635 A.2d at 624-25 (granting post-conviction relief to
equalize the treatment of similarly situated co
defendants); accord Walter v. United States, 969 F.2d at 817
(citing Davis v. United States, 417 U.S. 333, 346-47, 94 S.Ct.
2298, 2305, 41 L.Ed.2d 109 (1974)).
Id. at 877–78 (footnotes omitted).
I acknowledge that the disparate treatment alleged here is removed from the direct
appellate review process, and the decision to apply “new” decisions on collateral review
[J-19-2022] [MO: Brobson, J.] - 3
is even further removed. Moreover, Cruz’s petition was timely whereas Taylor’s petition
was not. Additionally, as Cruz recognized, “[i]t is unclear whether federal equal protection
or due process concepts will ultimately be construed by the United States Supreme Court
to require consistently equal treatment of co-defendants with respect to purely legal
issues on appeal.” Id. at 877.
Nevertheless, Cruz established the groundwork for Taylor’s habeas corpus claim.
The Cruz Court agreed that the PCRA’s statutory requirements could not be satisfied in
Cruz’s case. For instance, as the Superior Court recognized, the previous litigation bar
could not be overcome. This Court, by dismissing Cruz’s appeal as improvidently
granted, had left intact the Superior Court’s resolution of the Article I, Section 8 claim.
Indeed, Justice Castille’s dissenting opinion criticized the majority for “eviscerat[ing]
salutary provisions in the PCRA concerning cognizability, and previous litigation.” Id. at
879 (Castille, J., dissenting).
Cruz, in my view, responds to those criticisms via application of “traditional habeas
corpus jurisprudence … under which previous litigation does not function as a never-
yielding bar to the possibility of collateral relief.” Id. at 877. There is no doubt that “the
scope of the PCRA cannot be narrowly confined to its specifically enumerated areas of
review,” due to the fact the PCRA reflects a legislative intent to channel all collateral
claims into its framework. Commonwealth v. Judge, 916 A.2d 511, 520 (Pa. 2007).
Simultaneously, “this Court has never held that habeas corpus cannot provide a separate
remedy, in appropriate circumstances. Indeed, the boundaries of cognizable claims
under the PCRA can only be extended so far as is consistent with the purposes of the
statute[.]” Id. at 520. Cruz recognizes that when two defendants diligently pursue their
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claims and are identically situated in terms of pure legal issues they should receive the
same treatment. When this Court denies relief to one and capriciously gives relief to the
other, habeas corpus permits the Court to rectify its arbitrary behavior.
I thus accept Taylor’s alternative argument. See Taylor’s Brief at 37-38 (“[Taylor]
was always diligent in pursuing his claims and yet review has eluded him, not because of
the merits of his claim or failure to follow procedural rules, but because extraordinary (and
inexplicable) procedural irregularities have rendered the PCRA ineffectual or nonexistent
as a mechanism for him to litigate his meritorious claim.”) (quotation marks and citation
omitted).2 Taylor and Koehler were identically situated in all material respects. See Cruz,
851 A.2d at 876 (observing that Melendez and Cruz were “identically (or at least as
similarly enough) situated.”). When this Court affirmed the denial of Taylor’s PCRA
petition by operation of law, Taylor filed an application for reargument and asked the Court
to appoint additional jurists. Maj. Op. at 4. While that request was pending, we
empaneled additional jurists to decide Koehler. “In contrast to [Taylor’s case], however,
the seven-member special complement of this Court in Koehler reversed the PCRA
court’s dismissal in a divided opinion.” Id. at 5. We then denied the application for
reargument, again by a 2-2 split.
2 Justice Dougherty asserts that Taylor was not diligent because the underlying PCRA
petition was untimely. Concurring Opinion at 5 n.3 (Dougherty, J.). The concurrence
made this same argument in Commonwealth v. Taylor, 218 A.3d 1275 (Pa. 2019), but
Justice Wecht and I disagreed. Id. at 1283 n.9 (“Contrary to Justice Dougherty's view,
we do not believe that it is appropriate at this juncture to ascertain the timeliness of
Taylor's petition. … the PCRA court did not resolve the petition on timeliness grounds,
and we have no developed record upon which to evaluate timeliness.”) (Wecht, J., opinion
in support of reversal). It is difficult to say that Taylor was treated fairly on the basis that
Justice Dougherty was correct and we were wrong.
[J-19-2022] [MO: Brobson, J.] - 5
Cruz holds that habeas corpus can remedy extraordinary circumstances and this
is surely one. For purposes of this alternative argument, Taylor is not seeking the benefit
of the new Koehler claim as a matter of “retroactive” application but instead merely asks
this Court to rectify its arbitrary treatment. I fully agree that our denial of Taylor’s petition
for reconsideration is fairly characterized as such. See Commonwealth v. Taylor, 230
A.3d 341 (Pa. 2020) (Wecht, J., dissenting) (describing denial of Taylor’s application for
reconsideration as “inexplicable, given our decision in Koehler.”). As Justice Cappy
explained in Melendez, the decision to dismiss Cruz’s appeal “was wrong then; it is wrong
now. The injustice suffered by Cruz as a result of this Court's inconsistency is, for lack of
a better word, shameful.” Melendez, 676 A.2d at 232 (Cappy, J., concurring). We were
wrong then, and the Majority is wrong now.
The Cruz Court ultimately corrected that unfair treatment. Taylor will not be so
fortunate. And make no mistake that only sheer luck explains why this Court empaneled
Superior Court judges to break the tie for Koehler but not for Taylor. Moreover, this case
presents an even stronger case for relief than Cruz with respect to the Court’s
composition. At least in Cruz it could be said that a majority of the Court had voted to
dismiss the petition as improvidently granted. Taylor, in contrast, was denied relief by
operation of law based on a deadlock of four Justices, a deadlock that Taylor specifically
asked us to address.
Finally, I observe that this case presents an extraordinary circumstance warranting
application of Cruz because Taylor diligently pursued all potential remedies when the
controversy was still live. Had Taylor failed to seek reconsideration of our initial split
decision, I would be inclined to affirm. Cf. Commonwealth v. Watts, 23 A.3d 980, 988
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(Pa. 2011) (holding that Commonwealth v. Bennett, 930 A.2d 1264 (Pa. 2007), was not
a new “fact” for purposes of the PCRA’s time-bar); id. at 988 (Baer, J., concurring) (“As
the Majority notes, Watts had the opportunity to ‘become’ Bennett by … raising the same
arguments that Bennett did. … Instead, he waited for Bennett's vanguard success in this
Court, and then attempted to capitalize on it.”). Taylor did not sit idly by and raise his
claim only after seeing Koehler’s succeed. Taylor tried to “become” Koehler at all stages
of his case, including by asking the Court to appoint additional jurists. Under these
extraordinary circumstances, I would apply Cruz. I would remand the petition to the PCRA
court for further proceedings.
[J-19-2022] [MO: Brobson, J.] - 7