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 :
CONCURRING OPINION
JUSTICE DOUGHERTY DECIDED: September 29, 2022
I join the majority opinion in full. In Commonwealth v. Koehler, 229 A.3d 915 (Pa.
2020), the Court described the issue before it as “whether the reinstatement of appellate
rights nunc pro tunc is an appropriate remedy to correct a constitutional deprivation that
occurred in a prior appeal.” Id. at 931 n.8. The Koehler majority answered that question
in the affirmative over my emphatic dissent. Compare id. at 942 (holding PCRA courts
have “inherent authority to grant a nunc pro tunc appeal to remedy a due process violation
occurring in the prior appeal”) with id. at 964 (Dougherty, J., concurring and dissenting)
(“the nunc pro tunc reinstatement of the right to seek reargument is the only lawful remedy
for a judicial bias-based due process claim raised on collateral review”). Significantly,
though, none of the expressions in Koehler said anything about its holding applying
retroactively. This fact singlehandedly defeats Taylor’s main claim that Koehler satisfies
the newly recognized constitutional right exception to the PCRA timebar under 42 Pa.C.S.
§9545(b)(1)(iii), as the majority rightly concludes. See Majority Opinion at 13-14 (“Taylor
has failed to establish . . . Koehler has been held to apply retroactively as contemplated
under Section 9545(b)(1)(iii)[.]”) (internal quotation marks, brackets, and citation omitted);
accord Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002) (“The language
‘has been held’ [in Section 9545(b)(1)(iii)] . . . mean[s] 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.”).
This is not Taylor’s only problem though. The majority flags another. It notes that
while “neither the PCRA court nor the Commonwealth have addressed” the issue, it could
be argued that “Koehler did not recognize a new constitutional right” at all, rendering
Section 9545(b)(1)(iii) inapplicable for this additional reason. Majority Opinion at 13 n.9;
see id. (“we are careful to note that we do not treat Koehler’s satisfaction of this initial
requirement as a foregone conclusion”). Ultimately, the majority does “not reach the issue
in light of [its] conclusion [ ] relative to Taylor’s failure to demonstrate satisfaction of
Section 9545(b)(1)(iii)’s second requirement (i.e., that the right has been held to apply
retroactively).” Id. While the majority’s restraint is reasonable under the circumstances,
appellant did place the matter directly at issue, see Taylor’s Brief at 14 (“Koehler is a new
constitutional rule”), and since I believe it is unwise for us to leave unanswered a question
about whether one of our decisions announced a new constitutional right (even if that
right is not retroactive), I would resolve it now.
In his brief, Taylor repeatedly declares Koehler announced a new “right” or “rule”
(he uses the terms interchangeably, see, e.g., Taylor’s Brief at 14, 17), but he noticeably
fails to set forth clearly what he believes that right entails. The closest he comes is in a
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section titled “Koehler is newly recognized law.” Id. at 17.1 There, he argues Koehler
“recognized, for the first time, that PCRA courts have the power to grant new appeals,
nunc pro tunc, to remedy due process violations flowing from decisions issued by biased
appellate tribunals.” Id. “That newly recognized right[,]” he continues in the next section,
“was rooted in the Constitution.” Id.
Contrary to Taylor’s view, Koehler’s holding in this regard did not announce a new
“right,” and certainly not a constitutional one. All Koehler did was conclude PCRA courts
have “the authority to grant a well-established form of relief” — a nunc pro tunc appeal —
“to remedy a constitutional deprivation that has been proven on the merits.” Koehler, 229
A.3d at 929 n.7; see id. at 931 n.8 (stating the “straightforward question” is “whether the
reinstatement of appellate rights nunc pro tunc is an appropriate remedy”). In other
words, Koehler simply decided the proper remedy for a meritorious appellate judicial
bias-based due process claim when raised in a timely PCRA petition; it did not purport to
recognize a new constitutional right of any kind. I would therefore conclude Taylor’s claim
also fails on this independent basis.
A third reason for rejecting Taylor’s position also warrants discussion. Taylor
appears to believe that if Koehler were retroactive (or if we were to now hold it is
retroactive), it would somehow “revive his claims of judicial bias” that he originally raised
in his fourth PCRA petition, the denial of which we affirmed by operation of law in
Commonwealth v. Taylor, 218 A.3d 1275 (Pa. 2019) (per curiam)2 due to a deadlocked
1I point out the semantic differences because they matter under the plain language of the
PCRA. Section 9545(b)(1)(iii) excuses an untimely claim where the petitioner alleges and
proves “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.”). 42
Pa.C.S. §9545(b)(1)(iii) (emphasis added). The exception does not mention new “rules”
or new “law”; it plainly requires recognition of a new “constitutional right.”
2 In keeping with the majority’s designation, I refer to this decision as “Taylor IV.”
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Court. Taylor’s Brief at 6. This understanding is wrong. We have explained that just
because a petitioner meets his burden to prove a timebar exception with respect to one
claim does not mean that endows the PCRA court with all-encompassing jurisdiction to
entertain different issues raised in the petition — it merely grants the court jurisdiction
over those claims that actually fall within the exception. See Commonwealth v. Porter,
35 A.3d 4, 13-14 (Pa. 2012) (Section 9545(b) “speaks in singular terms of ‘the claim’ or
‘the right’ which is the subject of a serial PCRA ‘petition’” and, as such, the exceptions
“are claim-specific”); Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (“claims
must still first satisfy the PCRA’s time limits or one of the exceptions thereto”) (emphasis
added); see also Commonwealth v. Woods, 179 A.3d 37, 44 (Pa. Super. 2017) (“if the
right announced in Miller [v. Alabama, 567 U.S. 460 (2012)] applies to any of [a]ppellant’s
claims, the petition is timely as to that specific claim”).
In his fifth PCRA petition, Taylor, citing Koehler, raised only the newly recognized
constitutional right exception to the timebar. Before this Court, he continues to complain
that Koehler’s “new constitutional rule . . . has yet to be applied to [his] claims.” Taylor’s
Brief at 14. Again, however, Taylor misunderstands the import of Koehler’s holding. It
was, at bottom, about remedies. In contrast, what Taylor seeks to do here is use Koehler
(a case about remedies) to “revive his claims of judicial bias.” Id. at 6. But the timeliness
and merits of Taylor’s underlying due process claim are entirely separate from the issue
of remedy, and Koehler pointedly “offer[ed] no opinion” on those matters. Koehler, 229
A.3d at 933. So, for this reason also, even if Koehler were retroactive it could not resurrect
and make timely the due process claim raised in Taylor’s fourth PCRA petition. That
claim was untimely for reasons I have previously explained, see Taylor IV, 218 A.3d at
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1293-95 (Dougherty, J., opinion in support of affirmance), and nothing about Koehler
changes that either.3
This brings me to my last point. It’s no secret I believe the majority in Koehler went
far astray and got things terribly wrong. See, e.g., Koehler, 229 A.3d at 946 (Dougherty,
J., concurring and dissenting) (“there is no present case and controversy regarding the
proper relief that may be afforded to a hypothetical petitioner who presents a meritorious
judicial bias-based due process claim in a timely PCRA petition”); id. (“everything the
[m]ajority purports to do beyond [remand to the PCRA court for a timeliness
determination] is entirely advisory and non-binding”); id. at 946-47 (“a PCRA court is not
authorized, under the Pennsylvania Constitution, to investigate matters of judicial
misconduct; or to undo this Court’s precedents by means of ordering us to rehear an
appeal; or to impose judicial discipline, in the form of retroactive removal from an appellate
3 The dissent credits appellant’s assertion he was “‘always diligent in pursuing his claims
and yet review has eluded him[.]’” Dissenting Opinion at 5, quoting Taylor’s Brief at 37.
It is from this premise that the dissent would apply Commonwealth v. Cruz, 851 A.2d 870(Pa. 2004). See id. at 4-5 (“Cruz recognizes that when two defendants diligently pursue
their claims and are identically situated in terms of pure legal issues they should receive
the same treatment.”). I must reiterate that the portrayal of Taylor as having been diligent
is without foundation considering his fourth PCRA petition was untimely. See Taylor IV,
218 A.3d at 1294 n.10 (Dougherty, J., opinion in support of affirmance) (“[Taylor] included
within the record the very news articles that definitively prove he did not raise his claim
within sixty days of the date the claim could have been presented, as Section 9545(b)(2)
requires, and no additional arguments will alter this reality.”). Had Taylor timely filed that
petition, I would have joined in his request that we grant reconsideration of Taylor IV in
light of Koehler. But since he didn’t, there was nothing “inexplicable” about our decision
to deny reconsideration. See Commonwealth v. Taylor, 230 A.3d 341 (Pa. 2020) (per
curiam) (Wecht, J., dissenting). Nor is the majority “wrong” for declining to shoehorn this
case under Cruz when it is nothing like that matter. Dissenting Opinion at 6. To put it
bluntly, any fairness concern here is illusory. And I’m not alone in thinking so: the PCRA
court, which observed Taylor’s “strategems” firsthand, Commonwealth’s Brief at 32, took
the unusual step of noting in its opinion that it viewed Taylor’s fifth PCRA petition and
current appeal as nothing more than “a tactic to prolong [his] judgment of sentence.” Trial
Court Opinion, 8/4/2021 at 1.
[J-19-2022] [MO: Brobson, J.] - 5
panel, for perceived violations of the Code of Judicial Conduct”); id. at 949 (“the
[m]ajority’s entire analysis necessarily presumes an unripe, hypothetical situation where
a petitioner files a timely PCRA petition raising a meritorious claim that his due process
rights were violated by the participation of a biased jurist in a prior appeal”) (emphasis
omitted); id. at 960 (“[t]he constructs of stare decisis, binding authority, and law of the
case, which derive at least in part from the judicial hierarchy established by the
Pennsylvania Constitution, provide ample bases for rejecting the [m]ajority’s position
outright”). I maintain this position today.4
Regrettably, the Commonwealth in the present appeal has not asked us to overrule
Koehler. Although I recognize “there have been numerous occasions in which this Court
has sua sponte reconsidered and overruled prior precedent[,]” Freed v. Geisinger Med.
Ctr., 5 A.3d 212, 215 (Pa. 2010), it is my general view that, absent compelling
circumstances, “we ought not to overrule prior precedent sua sponte, without any request
by or advocacy from the parties.” Commonwealth v. Mason, 247 A.3d 1070, 1083 n.1
(Pa. 2021) (Dougherty, J., concurring). In any event, as I explained in Koehler, “by going
4 In fact, Koehler is now wrong for the additional reason I alluded to in my partial dissent
there: the majority “blatantly misrepresent[ed] what occurred in Williams [v. Pennsylvania,
579 U.S. 1 (2016)] to support its false narrative that the grant of a nunc pro tunc appeal
to remedy appellate-level judicial bias claims is a widely sanctioned remedy.” Koehler,
229 A.3d at 959 n.10 (Dougherty, J., concurring and dissenting). Notably, after we
decided Koehler, we issued our opinion in Commonwealth v. Reid, 235 A.3d 1124 (Pa.
2020), which examined Williams at length. Reid confirms the majority in Koehler gravely
misunderstood the import of Williams and erroneously concluded “[a]ny other defendant
who can establish an unacceptable risk of actual bias in his or her case would be entitled
to the same relief the High Court deemed appropriate in Williams.” Koehler, 229 A.3d at
934 (emphasis added). Compare, e.g., id. at 959 n.10 (Dougherty, J., concurring and
dissenting) (“the procedural posture of Williams — wherein the Supreme Court of the
United States granted direct review of former Chief Justice Castille’s refusal to recuse
— demonstrates only that a higher tribunal is empowered to vacate a lower court’s
decision when it determines the lower court committed a constitutional violation)
(emphasis in original; internal quotation marks and citation omitted) with Reid, 235 A.3d
at 1131-33, 1162 (corroborating this procedural posture).
[J-19-2022] [MO: Brobson, J.] - 6
out of its way to provide an answer to an academic question ‘based on assertions as to
hypothetical events that might occur in the future[,]’ the [m]ajority render[ed] what is
‘clearly an advisory opinion; and such an opinion is without legal effect.’” Koehler, 229
A.3d at 946 (Dougherty, J., concurring and dissenting), quoting Philadelphia Entm’t and
Dev. Partners, L.P. v. City of Philadelphia, 937 A.2d 385, 392 (Pa. 2007) and Okkerse v.
Howe, 556 A.2d 827, 833 (Pa. 1989). This means “courts in this Commonwealth are not
bound to follow the [Koehler m]ajority’s analysis in this regard[.]” Id. at 949. Still, as
Taylor’s arguments here demonstrate, confusion persists regarding the egregiously
wrong decision in Koehler, and this Court should, at the earliest opportune moment,
overrule it.
Justice Mundy joins this concurring opinion.
[J-19-2022] [MO: Brobson, J.] - 7