Com. v. Baker, C.

J-S67012-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHRISTOPHER R. BAKER, :
:
Appellant : No. 242 WDA 2014
Appeal from the PCRA Order January 23, 2014,
Court of Common Pleas, Potter County,
Criminal Division at No. CP-53-MD-0000119-1992
BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED DECEMBER 11, 2015
Christopher R. Baker (“Baker”) appeals from the January 23, 2014
order entered by the Court of Common Pleas, Potter County, dismissing his
petitions for relief pursuant to the Post-Conviction Relief Act (“PCRA”).1 For
the reasons set forth herein, we affirm.
This case returns to this Court for the fourth time. The relevant facts
and procedural history are as follows. At the age of sixteen, Baker was
arrested and charged with the May 6, 1992 killing of seventy-two-year-old
Dorothy Wilkinson. Baker was also charged with stealing Ms. Wilkinson’s car
after the murder. On March 11, 1993, following a non-jury trial, Baker was
convicted of first-degree murder and theft.2 The trial court sentenced Baker
1
42 Pa.C.S.A. §§ 9541-46.
2
18 Pa.C.S.A. §§ 2502(a), 3921(a).
*Former Justice specially assigned to the Superior Court.
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on June 15, 1993, to the then- mandatory term of life imprisonment for
first-degree murder, and eleven to forty-eight months imprisonment for the
theft, which the trial court ordered to run concurrently with the life sentence.
This Court affirmed the judgment of sentence on August 29, 1994.
Between December 16, 1996 and November 4, 2011, Baker filed three
pro se PCRA petitions. The trial court denied all three of Baker’s requests for
relief, which this Court affirmed.3 On May 21, 2012, Baker filed his fourth
pro se PCRA petition.
On July 19, 2012, the PCRA court appointed Brent Petrosky, Esquire
(“Attorney Petrosky”) to represent Baker. Baker nevertheless filed a pro se
amended PCRA petition on July 23, 2012, wherein he asserted that the
decision in Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455 (2012), holding
that “the Eighth Amendment forbids a sentencing scheme that mandates life
in prison without possibility of parole for juvenile offenders,” created a new
constitutional right that should be applied retroactively to his case. Id. at
2469. The PCRA court continued the matter on October 16, 2012 pending
3
The PCRA court granted Baker’s November 19, 1998 petition in part to
allow Baker to file a petition for allowance of appeal to the Pennsylvania
Supreme Court nunc pro tunc. Our Supreme Court denied Baker’s petition
for allowance of appeal on May 26, 1999. See Commonwealth v. Baker,
739 A.2d 163 (Pa. 1999).
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resolution by our Supreme Court of two cases regarding whether Miller
applied retroactively.4
In the interim, on February 4, 2013, Baker filed a pro se petition for
writ of habeas corpus, requesting vacation of his sentence in light of the
Miller decision. Baker thereafter amended his petition on February 6, 2013.
On June 18, 2013, the PCRA court issued an order stating that Baker’s PCRA
petition and petition for writ of habeas corpus would be held in abeyance
until the Pennsylvania Supreme Court issued its decision in Commonwealth
v. Cunningham, which would address whether Miller applied retroactively
to defendants who sought relief through the PCRA.
On October 30, 2013, the Pennsylvania Supreme Court rendered its
decision in Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), cert.
denied, 134 S.Ct. 2724 (U.S. 2014). Since the United States Supreme Court
in Miller did not specifically address whether its holding was retroactive, our
Supreme Court applied the retroactivity principles established by Teague v.
Lane, 489 U.S. 288 (1989) (plurality), to its analysis of the issue. In
Teague, the United States Supreme Court delineated a general rule that
new procedural, constitutional rules were not retroactive. Teague, 489 U.S.
at 300-10. As summarized by our Supreme Court in Cunningham, the
general rule of non-retroactivity is subject to two narrow exceptions, which
4
See Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013); Commonwealth
v. Cunningham, 81 A.3d 1 (Pa. 2013). The Pennsylvania Supreme Court
heard argument on both cases on September 12, 2012.
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extend to (1) “rules prohibiting a certain category of punishment for a class
of defendants because of their status or offense,” and (2) “watershed rules
of criminal procedure implicating the fundamental fairness and accuracy of
the criminal proceeding.” Cunningham, 81 A.3d at 4 (citing Penry v.
Lynaugh, 492 U.S. 302, 330 (1989); Horn v. Banks, 536 U.S. 266, 271
n.5 (2002)). The United States Supreme Court has since “appeared to have
merged the first Teague exception with the principle that new substantive
rules generally apply retroactively.” Cunningham, 81 A.3d at 5 (emphasis
in original) (citing Schriro v. Summerlin, 542 U.S. 348 (2004)).
The Cunningham Court determined that the first exception to the
general rule of non-retroactivity for new procedural constitutional rules
pursuant to Teague did not apply to the holding in Miller. Cunningham,
81 A.3d at 10. The Court did not address the second Teague exception
because the appellant did not develop an argument in support of its
applicability. Id. As a result, the Cunningham Court held that the
appellant in that case failed to present any argument to persuade the Court
“that Miller’s proscription of the imposition of mandatory life-without-parole
sentences upon offenders under the age of eighteen at the time their crimes
were committed must be extended to those whose judgments of sentence
were final as of the time of Miller’s announcement.” Id. at 11.
On November 18 and December 27, 2013, Baker filed two additional
pro se amended habeas petitions in which he presented several arguments
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in support of vacating his sentence pursuant to Miller. On January 3, 2013,
the PCRA court determined that Baker “failed to state a claim upon which
relief may be granted based on the Pennsylvania Supreme Court’s decision
rendered in [] Cunningham[,]” and entered an order pursuant to
Pa.R.Crim.P. 907, notifying Baker of its intention to dismiss his petitions
without a hearing. See PCRA Court Order, 1/3/13, at 1. On January 23,
2014, the PCRA court dismissed Baker’s PCRA petition and his habeas
petition, the latter of which the PCRA court treated as an amended PCRA
petition. Baker filed a pro se notice of appeal to this Court on February 3,
2014.
On March 12, 2014, Baker filed a motion for appointment of counsel.
This Court entered an order on March 31, 2014, stating:
As the trial court appointed [Attorney Petrosky] to
represent [Baker] on July 19, 2012, and as there is
no indication that [A]ttorney Petrosky was granted
leave to withdraw, the prothonotary is directed to
enter the appearance of [A]ttorney Petrosky in this
Court. Should [A]ttorney Petrosky believe he is not
representing [Baker], [A]ttorney Petrosky shall file a
motion to withdraw in the lower court.
Order, 3/31/14.
Between April 28, 2014 and April 15, 2015, Attorney Petrosky filed
three deficient attempts to withdraw as counsel pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), despite this
Court’s detailed instructions on how to comply with the Turner/Finley
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requirements. Thus, in a Memorandum dated May 13, 2015, we remanded
the case to the PCRA court for the appointment of new counsel. See
Commonwealth v. Baker, 242 WDA 2014, at 5-6 (Pa. Super. May 13,
2015) (unpublished memorandum).
On June 3, 2015, the PCRA court appointed Daniel A. Stefanides,
Esquire (“Attorney Stefanides”) to represent Baker. On July 24, 2015,
Attorney Stefanides filed an advocate’s brief with this Court on behalf of
Baker, raising the following issue for our review:
Did the [PCRA] court err in subsuming [Baker’s]
petition for writ of habeas corpus into his PCRA
petition and dismissing it without a hearing?
Baker’s Brief at 2.
In reviewing this issue, we are mindful that “[w]here the petitioner
raises questions of law, our standard of review is de novo and our scope of
review is plenary.” Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.
Super. 2014). “To the extent review of the PCRA court’s determinations is
implicated, an appellate court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record, and reviews its
conclusions of law to determine whether they are free from legal error.”
Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010).
It is well settled that the PCRA provides the “sole means of obtaining
collateral relief and encompasses all other common law and statutory
remedies … including habeas corpus[.]” 42 Pa.C.S.A. § 9542. The PCRA
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“provides for an action by which persons convicted of crimes they did not
commit and persons serving illegal sentences may obtain collateral relief.”
Id. “Issues that are cognizable under the PCRA must be raised in a timely
PCRA petition and cannot be raised in a habeas corpus petition.”
Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013)
(italicization omitted); see also 42 Pa.C.S.A. § 6503(b) (“[T]he writ of
habeas corpus shall not be available if a remedy may be had by post-
conviction hearing proceedings authorized by law.”). If the issue is not
cognizable under the PCRA, however, a writ of habeas corpus continues to
exist as a separate remedy. Commonwealth v. Peterkin, 722 A.2d 638,
640 (Pa. 1998).
On appeal, Baker contends that the claims raised in his habeas petition
are not cognizable under the PCRA and that therefore, the lower court
improperly treated his habeas petition as a PCRA petition and erred by
dismissing it without a hearing. Baker’s Brief at 5-6. Specifically, Baker
argues that he
is not asserting his innocence of the crime he was
convicted of nor is he arguing his sentence was
illegal when it was originally imposed. Instead, [he]
is arguing that the situation created by the
Pennsylvania Supreme Court’s ruling in
Cunningham where juvenile offenders sentenced to
mandatory sentences of life without parole are
treated different based solely on when their sentence
was handed down is a cruel punishment forbidden by
Article I[,] Section 13 of the Pennsylvania
Constitution.
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Id. at 6.
In so arguing, Baker relies upon then Chief Justice Castille’s concurring
opinion in Cunningham, wherein the Chief Justice expressed concern with
the resulting landscape in Pennsylvania following the majority’s decision,
stating:
There is at least a colorable argument that there
are now two classes of sentenced juvenile
murderers, for whom the distinguishing factor has
nothing to do with their crimes or their
circumstances: those with final sentences who can
never be assessed to determine if parole is
appropriate, and those going forward who must be
so assessed, based on Miller factors.
Cunningham, 81 A.3d at 15 (Castille, C.J., concurring).
Chief Justice Castille discussed the challenges presented to those
prisoners whose sentences are final, finding that the PCRA offers no avenue
for relief. Id. at 13-14. The Chief Justice presented several suggestions for
resolving the “seeming inequity arising in the post-Miller landscape.” Id. at
14. Most relevant to the case at bar, Chief Justice Castille asserted that
“there is at least some basis in law for an argument that the claim is
cognizable via a petition under Pennsylvania’s habeas corpus statute, found
at 42 Pa.C.S.[A.] § 6501 et seq.” Id. at 18 (italiczation omitted). In
support of his assertion, Chief Justice Castille cited to Commonwealth v.
Judge, 916 A.2d 511 (Pa. 2007), wherein our Supreme Court found that the
appellant’s challenge to “the continued vitality of his sentence” was not
cognizable by the PCRA and thus could be raised in a petition for writ of
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habeas corpus. Cunningham, 81 A.3d at 18 (Castille, C.J., concurring)
(quoting Judge, 916 A.2d at 521).
In Judge, the appellant was convicted of first-degree murder and
sentenced to death. Judge, 916 A.2d at 513. The appellant escaped from
custody two days after sentencing and fled to Canada. Id. The appellant
subsequently committed a series of armed robberies in Canada and was
arrested and sentenced to two ten-year terms of imprisonment to run
concurrently. Id. “Canada refused to extradite [the] [a]ppellant to
Pennsylvania, pursuant to the extradition treaty between the United States
and Canada, which provides that Canada will not extradite any person to
face a sentence of death in the United States.” Id. After completing his
terms of imprisonment in Canada in 1998, however, Canada deported the
appellant to New York, and thereafter, New York extradited the appellant to
Pennsylvania. Id. at 514.
The appellant filed a complaint with the United Nations Human Rights
Committee (the “Committee”), arguing that Canada violated his human
rights under the International Covenant for Civil and Political Rights
(“ICCPR”)5, by deporting him to face his death sentence. Id. at 514-16.
The Committee agreed, finding that Canada violated the ICCPR. Following
the Committee’s determination, the appellant filed a petition in Pennsylvania
5
The ICCPR “is an international agreement that sets forth substantive and
procedural rights to which all persons are entitled and establishes the
Committee to monitor States-Parties’ compliance with the treaty’s
provisions.” Judge, 916 A.2d at 514-15.
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“under either the PCRA or the statutory and constitutional right to habeas
corpus relief[.]” Id. at 517. The appellant argued that “Canada’s asserted
violation of his human rights under the ICCPR requires that his sentence be
reduced to life imprisonment or that he be returned to Canada to be
deported or extradited in compliance with the Committee’s ruling.” Id. The
PCRA court, assuming that his claims were cognizable under the PCRA,
dismissed the appellant’s petition.
On appeal, our Supreme Court was asked to determine whether the
appellant’s claims were cognizable under the PCRA or if a writ of habeas
corpus was the proper avenue for relief. The Judge Court determined that
“[t]he Committee’s determination and the facts upon which it is based,
regardless of their validity, have no connection to the truth-determining
process and do not render the underlying adjudication of guilt or innocence
… unreliable.” Id. at 520. The Judge Court further held that the appellant
was not challenging the conviction or sentence, but rather, was “challenging
the continued vitality of his sentence, a claim that is at the heart of habeas
corpus.” Id. at 521. Thus, the Judge Court held that his claims were not
cognizable under the PCRA and could be raised in a petition for writ of
habeas corpus. Id. at 521.
In his appellate brief, Baker borrows the “continued vitality of his
sentence” language from Judge and contends that he properly raised his
constitutional claim in a habeas petition. Baker’s Brief at 6. Baker argues
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that his sentence is cruel punishment forbidden by Article I, Section 13 of
the Pennsylvania Constitution and alleges that like the appellant in Judge,
his claim was properly brought in a habeas petition since he “is not asserting
his innocence to the crime he was convicted of nor is he arguing his
sentence was illegal when it was originally imposed.” Id. at 5-6.
Judge is distinguishable from the case presented herein, however, as
the crux of the issue to be decided in Judge was whether the appellant’s
deportation from Canada, which resulted in him facing a death sentence,
was a violation of his rights. The appellant’s conviction and sentence
remained final and were not addressed or affected by the Court’s decision.
In this case, Baker argues that he is entitled to a hearing on the merits of
his claim that his sentence should be vacated because the uneven
retroactive application of Miller violates Article I, Section 13’s ban on cruel
punishment. Unlike the situation presented in Judge, Baker’s sentence is
not an ancillary matter, but, is the ultimate issue to be decided. Thus,
Judge does not support Baker’s contention that his claim is not cognizable
under the PCRA.
Moreover, this Court has held that “a claim that a sentence constitutes
cruel and unusual punishment raises a question of the legality of the
sentence[.]” Commonwealth v. Brown, 71 A.3d 1009, 1016 (Pa. Super.
2013). “Issues concerning the legality of sentence are cognizable under the
PCRA.” Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004).
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Our review of the argument raised on appeal reveals that Baker does not
present any grounds to establish why his claim does not raise a question of
the legality of his sentence or to establish that his claim is not otherwise
cognizable under the PCRA.6 As a result, based on the argument presented,
we conclude that the PCRA court did not err in treating Baker’s habeas
petition as a PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/2015
6
We note that in Baker’s amended habeas petition dated December 27,
2013, he raised additional claims in support of treating his petition under
habeas corpus principles rather than the PCRA. He failed to present any
argument in his appellate brief relative to those claims, however, and has
therefore abandoned those claims on appeal. See Commonwealth v.
Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) (quoting
Commonwealth v. Gonzalez, 608 A.2d 528, 531 (Pa. Super. 1992)) (“‘The
failure to develop an adequate argument in an appellate brief may [] result
in waiver of the claim’ under Pa.R.A.P. 2119.”).
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