Com. v. Markle, L.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
LARRY MARKLE, :
:
Appellant : No. 513 MDA 2014
Appeal from the PCRA Order February 12, 2013
In the Court of Common Pleas of York County
Criminal Division No(s).: CP-67-CR-0001337-1975
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 24, 2014
Appellant, Larry Markle, appeals from the order dismissing as untimely
his third Post Conviction Relief Act1 (PCRA) petition seeking relief, in light of
Miller v. Alabama, 132 S. Ct. 2455 (2012), from a mandatory sentence of
life imprisonment imposed on October 29, 1979. Appellant’s counsel has
filed a petition to withdraw from representation and a no-merit letter in this
Court.2 In response to counsel’s filings, Appellant has filed a pro se
appellate brief, as well as motions seeking leave to proceed pro se and
*
Former Justice specially assigned to the Superior Court.
1
42 Pa.C.S. §§ 9541-9546.
2
See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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remand to supplement counsel’s Pa.R.A.P. 1925(b) statement. In his pro se
filings, Appellant asserts he is entitled to resentencing based on Miller and
also suggests that Pennsylvania’s implementation of Miller violates federal
and state constitutional protections. We deny counsel’s petition to withdraw
and remand this case for further proceedings consistent with this
memorandum.
Appellant was charged with murder and related offenses for shooting
and killing a customer with a shotgun while attempting to rob a grocery
store on October 9, 1975. Appellant was seventeen years old when he
committed the underlying acts.
At his first trial, Appellant waived his right to a jury. The trial court
found him guilty of murder of the first-degree and sentenced him to a
mandatory sentence of life imprisonment. On direct appeal, the
Pennsylvania Supreme Court held Appellant’s statements to police should
have been suppressed, reversed the judgment of sentence, and remanded
the case for new trial. Commonwealth v. Markle, 380 A.2d 346 (Pa.
1977).
Following remand, Appellant exercised his right to a jury for his second
trial. On January 27, 1978, the jury found him guilty of murder of the
second degree and related offenses. On October 29, 1979, the trial court
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sentenced Appellant to an mandatory term of life imprisonment without
parole.3 Appellant did not take a direct appeal.
Appellant filed several pro se petitions collaterally challenging his
conviction, but no orders disposing of those petitions were entered. On April
5, 1989, the PCRA court received Appellant’s first pro se PCRA petition. The
court held an evidentiary hearing on May 2, 1990, and that same day,
denied the petition. This Court affirmed. Commonwealth v. Markle, 125
Harrisburg 1991 (unpublished memorandum) (Pa. Super. Sept. 6, 1991).
On July 6, 2010, the PCRA court received Appellant’s second pro se
PCRA petition requesting relief under Graham v. Florida, 560 U.S. 48(2010).4 On September 10, 2010, the PCRA court dismissed the petition
after providing notice under Pa.R.Crim.P. 907. This Court affirmed.
Commonwealth v. Markle, 1678 MDA 2010 (unpublished memorandum)
(Pa. Super. Aug. 25, 2011).
On July 25, 2012, the PCRA court received the underlying pro se PCRA
petition, Appellant’s third. Appellant asserted he was entitled to relief under
Miller, which was decided one month earlier, on June 25, 2012. The court
3
The trial court also imposed a concurrent sentence of ten to twenty years’
imprisonment for robbery. On December 4, 1979, and in response to
Appellant’s post-sentence motion, the trial court modified that sentence to a
concurrent term of five to ten years’ imprisonment.
4
Graham held that the Eighth Amendment of the United States Constitution
prohibits sentences of life without parole for juvenile non-homicide
offenders. Graham, 560 U.S. at 75.
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appointed counsel, and the parties agreed to a continuance to await the
Pennsylvania Supreme Court’s decision in Commonwealth v.
Cunningham, 51 A.2d 178 (Pa. Aug. 6, 2012) (granting allowance of
appeal).
On October 31, 2013, the Pennsylvania Supreme Court decided
Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), and held that
Miller does not apply retroactively for PCRA purposes to juvenile offenders
whose conviction became final before Miller. Cunningham, 81 A.3d at 11.
On December 7, 2013, the PCRA court issued a Rule 907 notice of its intent
to dismiss Appellant’s petition in light of Cunningham. In response,
Appellant filed a counseled request to amend his petition and an amended
petition seeking PCRA relief or the issuance of a writ of habeas corpus.5
The court accepted the amended petition and on February 12, 2014, entered
an order and opinion denying Appellant’s PCRA petition and request for
habeas corpus relief. Appellant filed a timely notice of appeal and complied
with the court’s order to file a Pa.R.A.P. 1925(b) statement.
As noted above, Appellant’s appointed counsel has submitted a
petition to withdraw and a no-merit letter in this Court. Appellant, in
response, has filed various pro se motions and a brief in support of his
requests for relief.
5
Section 6503 of the Judicial Code codifies the right to apply for a writ of
habeas corpus. See 42 Pa.C.S. § 6503.
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Preliminarily, we consider whether counsel has complied with the
procedures to withdraw from representation. See Commonwealth v.
Doty, 48 A.3d 451, 454 (Pa. Super. 2012).
Counsel petitioning to withdraw from PCRA representation
must proceed . . . under [Turner, supra and Finley,
supra and] . . . must review the case zealously.
Turner/Finley counsel must then submit a “no-merit”
letter to the trial court, or brief on appeal to this Court,
detailing the nature and extent of counsel’s diligent review
of the case, listing the issues which petitioner wants to
have reviewed, explaining why and how those issues lack
merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the
“no merit” letter/brief; (2) a copy of counsel’s petition to
withdraw; and (3) a statement advising petitioner of the
right to proceed pro se or by new counsel.
* * *
[W]here counsel submits a petition and no-merit letter that
. . . satisfy the technical demands of Turner/Finley, the
court—trial court or this Court—must then conduct its own
review of the merits of the case. If the court agrees with
counsel that the claims are without merit, the court will
permit counsel to withdraw[.]
Id. (citation omitted). The failure of counsel to address issues a petitioner
intended to raise will result in the rejection of the petition to withdraw. See
Commonwealth v. Glover, 738 A.2d 460, 465 (Pa. Super. 1999).
Instantly, counsel has complied with the procedural requirements of
Turner/Finley. Therefore, we will independently review counsel’s
assessment of the issues Appellant intended to raise.
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In his no-merit letter, counsel identified Appellant’s intended challenge
to “the constitutionality . . . of life without parole sentences regarding
homicide when at the time of the offence [sic] the defendant was a
juvenile.” See No-Merit Letter, 8/14/14, at 2. Counsel concluded that in
light of Cunningham, the PCRA court was “bound to follow the current state
of the law . . . as interpreted by the Pennsylvania Supreme Court.”6 Id.In his pro se response to counsel’s no-merit letter, Appellant asserted
that “Miller is substantive and applies retroactively on both federal and
state grounds.” Appellant’s Pro Se Brief at 7. He further argued his
sentence violated “both the United States and Pennsylvania Constitutions
because two classes of prisoners sentenced to mandatory life without parole
are treated differently.” Id. According to Appellant, such claims “may be
reviewed either under the [PCRA] or under Pennsylvania’s constitutional and
statutory guarantee of habeas corpus.” Id.When reviewing counsel’s assessment that this appeal lacks merit, we
are mindful that
[o]ur standard of review regarding a PCRA court’s order is
whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. The
6
The PCRA court concluded Appellant was not entitled to relief because
Cunningham held that Miller does not apply retroactively. PCRA Ct. Op.,
2/14/12, at 2-3. The court held Appellant’s petition was untimely filed under
the PCRA, and, in the alternative, that Miller did not provide a basis for
granting relief under the habeas corpus statute. Id.-6-
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PCRA court’s findings will not be disturbed unless there is
no support for the findings in the certified record.
Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)
(citations omitted). “[W]e may affirm the decision of the [PCRA] court if
there is any basis on the record to support the [PCRA] court’s action; this is
so even if we rely on a different basis in our decision to affirm.”
Commonwealth v. Blackwell, 936 A.2d 497, 499 (Pa. Super. 2007)
(citation omitted).
We first address whether Appellant’s petition was timely filed under
the PCRA.
[N]o court has jurisdiction to hear an untimely PCRA
petition. The most recent amendments to the PCRA,
effective January 16, 1996, provide that a PCRA petition,
including a second or subsequent petition, shall be filed
within one year of the date the underlying judgment
becomes final. A judgment is deemed final “at the
conclusion of direct review, including discretionary review
in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of
time for seeking review.”
The three statutory exceptions to the timeliness
provisions in the PCRA allow for very limited circumstances
under which the late filing of a petition will be excused. 42
Pa.C.S.[ ] § 9545(b)(1). To invoke an exception, a
petition must allege and the petitioner must prove:
(i) the failure to raise a 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;
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(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.
42 Pa.C.S.[ ] § 9545(b)(1)(i)-(iii). “As such, when a PCRA
petition is not filed within one year of the expiration of
direct review, or not eligible for one of the three limited
exceptions, or entitled to one of the exceptions, but not
filed within 60 days of the date that the claim could have
been first brought, the trial court has no power to address
the substantive merits of a petitioner’s PCRA claims.”
Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super. 2006) (some
citations omitted).
To prove a timeliness exception under 42 Pa.C.S. § 9545(b)(1)(iii), a
petitioner must demonstrate two elements. Commonwealth v. Seskey, 86
A.3d 237, 242 (Pa. Super. 2014) (citation omitted), appeal denied, 2014 WL
5096348 (Pa. Sep. 30, 2014). First, Subsection 9545(b)(1)(iii) requires that
the United States or the Pennsylvania Supreme Court recognize a
constitutional right. Id. at 242-43. Second, the right must have been held
by “that court” to apply retroactively before a petition is filed. Id.
Instantly, there is no dispute that Appellant’s instant petition was
untimely on its face. Nevertheless, Appellant asserts that Miller should be
held to be retroactive under federal or Pennsylvania law and, therefore, he is
entitled to a time-bar exception under Subsection 9545(b)(1)(iii). In
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support, Appellant observes, inter alia, that the United States Supreme
Court, in Miller, applied similar constitutional principles to two defendants,
Evan Miller, whose conviction had not become final, and Kuntrell Jackson,
whose conviction was final but challenged on collateral post-conviction
review. Appellant’s Pro Se Brief at 29.
We agree with the PCRA court’s and counsel’s assessments that
Appellant’s arguments with respect to the PCRA time-bar lack merit. We are
bound by the precedents established by the Pennsylvania Supreme Court in
Cunningham and this Court in Seskey. We emphasize that Appellant’s
arguments that Miller should be applied retroactively do not state a PCRA
time-bar exception under 42 Pa.C.S. § 9545(b)(1)(iii). See Seskey, 86
A.3d at 243. We also note that the Pennsylvania Supreme Court, in
Cunningham, acknowledged the procedural posture of Jackson, but found
that procedural history irrelevant to a retroactivity analysis of Miller. See
Cunningham, 81 A.3d at 9. Therefore, under the present law of this
Commonwealth, we are constrained to conclude that neither the United
States Supreme Court nor the Pennsylvania Supreme Court has announced a
new right that “has been held by that court to be retroactive.” See 42
Pa.C.S. § 9454(b)(1)(iii). Accordingly, the PCRA court properly concluded
that Miller did not provide a basis to avoid the PCRA time-bar under
Subsection 9545(b)(1)(iii).
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As to Appellant’s arguments that the habeas corpus statute provides
an alternative means to consider his constitutional claims based on Miller,
we conclude no relief is due. The Pennsylvania Supreme Court has
explained:
The legislature has clearly directed that the PCRA
provide the sole means for obtaining collateral review and
relief, encompassing all other common law rights and
remedies, including habeas corpus. See 42 Pa.C.S. §
9542 . . . . As certain penalty phase claims, which are not
waived or otherwise forfeited are cognizable on traditional
habeas corpus review, section 9542 plainly requires that
they must be considered exclusively within the context of
the PCRA. Such claims could not be legislatively
foreclosed, since the Pennsylvania Constitution provides,
with limited exceptions not here applicable, that the
privilege of the writ of habeas corpus shall not be
suspended.
Given that the choice was between a unified statutory
procedure or bifurcated review having statutory and
common law components, it seems clear that the General
Assembly intended to channel all claims requiring review
through the framework of the PCRA. . . . .
Commonwealth v. Chester, 733 A.2d 1242, 1250-51 (Pa. 1999) (some
citations omitted), abrogated on other grounds by Commonwealth v.
Grant, 813 A.2d 726 (Pa. 2002). Thus,
[u]nless the PCRA could not provide for a potential
remedy, the PCRA statute subsumes the writ of habeas
corpus. Issues that are cognizable under the PCRA must
be raised in a timely PCRA petition and cannot be raised in
a habeas corpus petition. Phrased differently, a defendant
cannot escape the PCRA time-bar by titling his petition or
motion as a writ of habeas corpus.
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Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013)
(citations and footnote omitted).
Appellant’s present claim—i.e., that his sentence “resulted from a
violation of” the constitutions or laws of the Commonwealth or the United
States in light of Miller—is cognizable under the PCRA, but procedurally
defaulted by the time-bar. See 42 Pa.C.S. §§ 9543(a)(2), 9545(b)(1)(iii);
Chester 733 A.2d at 1251. We further note that the Pennsylvania Supreme
Court has abrogated equitable exceptions to the operation of the PCRA time-
bar. See Commonwealth v. Eller, 807 A.2d 838, 845 (Pa. 2002).
Accordingly, we discern no merit to Appellant’s argument that the habeas
corpus statute provides a means to litigate his Miller claims.7 See Taylor,
65 A.3d at 465-66.
Appellant’s last two issues subsume several related arguments.
Rather than claiming relief based on Miller, he argues he is entitled to relief
in light of Cunningham. Specifically, he asserts that Pennsylvania’s
implementation of Miller gives rise to independent claims that his sentence
violates state and federal constitutional guarantees of equal protection and
against cruel and unusual punishments. According to Appellant, his post-
7
In any event, we agree with the PCRA court that even if a petitioner could
raise a Miller claim under the habeas corpus statute, Cunningham would
preclude a court from granting relief where the conviction became final
before Miller was announced.
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Cunningham constitutional claims are cognizable and timely presented
under the PCRA, or should be addressed under the habeas corpus statute.
Assuming arguendo that claims based on Cunningham are cognizable
under the PCRA, we discern no merit to Appellant’s suggestion that
Cunningham creates an exception to the PCRA time-bar under 42 Pa.C.S. §
9545(b)(1)(iii). Cunningham did not announce a new constitutional right.
Rather, Cunningham conducted a narrow review of the right already
recognized in Miller and held that Miller was not retroactive for the
purposes of post-conviction relief. Cunningham, 81 A.3d at 11.
Accordingly, the Cunningham decision does not trigger the time-bar
exception under Subsection 9545(b)(1)(iii), and Appellant’s claims are
untimely and cannot be considered under the PCRA. See Seskey, 86 A.3d
at 242-43.
With respect to Appellant’s alternative contention that the habeas
corpus statute affords a remedy for his collateral challenge based on
Cunningham, we note that this claim was preserved in the counseled
amended petition that was accepted by the PCRA court. See Am. Pet. for
Habeas Corpus Relief under Article I, Section 14 of the Pennsylvania
Constitution and for Post-Conviction Relief under the Post Conviction Relief
Act, 1/7/14, at 14-19. Moreover, Appellant’s pro se brief in this appeal
contains citation to legal authority and principles. See Appellant’s Pro Se
Brief at 29-30.
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However, Appellant’s pro se argument to this Court fails to consider, or
establish, that the instant claims based on Cunningham are not cognizable
under the PCRA or that the PCRA provides no possibility of relief. See
Taylor, 65 A.3d at 465-66. Consequently, he does not advance a
meaningful argument that his claims give rise to an independent action
under the habeas corpus statute.
We recognize a petitioner’s failure to argue that the PCRA did not
provide a remedy results in waiver of a claim that habeas corpus relief is
available. See Seskey, 86 A.3d at 244. We are further mindful that
present counsel was appointed under the rule-based right to counsel for the
purposes of litigating a PCRA petition. See Pa.R.Crim.P. 904. Nevertheless,
in conducting our review of counsel’s no merit letter, we have discerned an
issue that was raised by counsel in the PCRA court, but was not addressed in
his present attempt to withdraw under Turner/Finley. Furthermore, we are
not convinced that Appellant’s constitutional claims in light of Cunningham
lack arguable merit, or that his assertion that habeas corpus relief may be
available are frivolous. See Cunningham, 81 A.3d at 18 (Castille, C.J.,
concurring) (noting “it is not apparent that such a state constitutional claim
[to afford global retroactive effect to Miller] is cognizable under the PCRA
[and] 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[.]”).
But see Seskey, 86 A.3d at 244 (Strassburger, J., concurring) (suggesting
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petitioner’s claims based on Cunningham properly dismissed as untimely
PCRA petition).
Therefore, we deny counsel’s petition to withdraw and direct counsel
to file either an amended no-merit letter or an advocate’s brief within sixty
days of the filing of this memorandum. Counsel shall address whether the
PCRA court erred in dismissing Appellant’s request to consider his equal
protection and cruel and unusual punishment claims under the habeas
corpus statute. The Commonwealth may submit an amended appellee’s
brief.
In light of our disposition, we dismiss Appellant’s pro se motions to
dismiss counsel, proceed pro se, and remand for the filing of a supplemental
Pa.R.A.P. 1925(b) statement without prejudice to renew his requests in the
PCRA court. If Appellant wishes to proceed pro se, he shall file a motion to
do so in the PCRA court. The PCRA court shall conduct a Grazier8 hearing
to ensure his waiver of counsel is knowing, intelligent and voluntary and
advise this Court of Appellant’s election.
Case remanded. Counsel’s petition to withdraw denied. Appellant’s
pro se motion “to Dismiss Court-appointed Counsel, Proceed Pro Se on
Appeal, and Remand to file an Amended or Supplemental Concise Statement
of Matters Complained of on Appeal Nunc Pro Tunc” dismissed without
prejudice. Panel jurisdiction retained.
8
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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