Com. of Pa. v. Montgomery

• Decision Date: 14 March 2018
• Docket Number: No. 938 WDA 2016,938 WDA 2016
• Citation: 181 A.3d 359
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Stephen MONTGOMERY, Appellant
• Court: Pennsylvania Superior Court

181 A.3d 359

COMMONWEALTH of Pennsylvania, Appellee

v.Stephen MONTGOMERY, Appellant

No. 938 WDA 2016

Superior Court of Pennsylvania.

Argued September 13, 2017

Filed March 14, 2018

Marco S. Attisano, Pittsburgh, for appellant.

Rebecca G. McBride, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, SHOGAN, LAZARUS, OLSON, OTT, STABILE AND DUBOW, JJ.

OPINION BY OLSON, J.:

Appellant, Stephen Montgomery, appeals from the order dated June 2, 2016¹ dismissing his fourth petition filed pursuant to the Post–Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541 – 9546. We consider in this case whether PCRA courts have jurisdiction to address collateral petitions despite the pendency of a previously filed petition challenging the same judgment of sentence. We hold that PCRA courts possess jurisdiction to decide subsequently filed petitions under these circumstances. As to the merits of this appeal, we conclude that the PCRA court properly characterized Appellant's fourth filing as a PCRA petition. Moreover, we hold that Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) and Montgomery v. Louisiana , ––– U.S. ––––, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) permit sentencing an individual to a mandatory term of life imprisonment without the possibility of parole ("LWOP") if that individual was at least 18 years old at the time of the offense. As Appellant was 22 years old at the time of the offense in question, the new rule of constitutional law announced in Miller , and held retroactive by Montgomery , does not apply in this case. Accordingly, we affirm.

The factual background of this case is as follows. On November 4, 2000, James Carter ("Carter") and George Maxwell ("Maxwell") attempted to visit a club in McKeesport; however, the club was closed when they arrived. While waiting for a jitney ride home, Carter and Maxwell observed Kijafi Fuqua ("Fuqua") jumping on the hood of his vehicle while singing and dancing to the music emanating from the vehicle. Carter then saw an individual he knew sitting in an SUV across the street from the jitney station. Carter walked over and began speaking to the individual.

At this time, Carter noticed Appellant walk into the middle of the street with a firearm while looking at Fuqua. Fuqua got off the hood of his vehicle and opened his trunk. Maxwell then crossed the street to speak with Appellant. The conversation became heated and Appellant struck Maxwell with the firearm. This strike caused Maxwell and the firearm to fall to the ground. Appellant then began kicking Maxwell. Soon thereafter, Trent Thompson joined in kicking Maxwell. Appellant retrieved the firearm from the street and hit Maxwell in the head with the firearm. Appellant then shot Maxwell in the neck, fatally wounding him. Appellant was 22 years old at the time of this incident.

The procedural history of this case is as follows. On January 19, 2001, the Commonwealth charged Appellant via criminal information with twelve offenses including, inter alia , criminal homicide.² On October 24, 2002, Appellant was convicted of first-degree murder³ and related crimes. On January 28, 2003, the trial court sentenced Appellant to an aggregate term of LWOP. The trial court was required, by statute, to impose a LWOP sentence for the first-degree murder conviction. See 18 Pa.C.S.A. § 1102(a) ; 61 Pa.C.S.A. § 6137(a)(1).

On direct appeal, this Court affirmed Appellant's judgment of sentence and our Supreme Court denied allowance of appeal. Commonwealth v. Montgomery , 872 A.2d 1273 (Pa. Super. 2005) (unpublished memorandum), appeal denied , 584 Pa. 713, 885 A.2d 532 (2005). On September 26, 2006, Appellant filed a timely, counseled first PCRA petition. On July 29, 2008, after an evidentiary hearing, the PCRA court denied the petition. This Court affirmed the denial of PCRA relief and our Supreme Court denied allowance of appeal. Commonwealth v. Montgomery , 986 A.2d 1260 (Pa. Super. 2009) (unpublished memorandum), appeal denied , 605 Pa. 711, 991 A.2d 311 (2010).

On November 13, 2014, Appellant filed a document that the PCRA court properly treated as his second, pro se PCRA petition. On January 21, 2015, the PCRA court dismissed the petition. This Court dismissed Appellant's appeal from that order. Commonwealth v. Montgomery , 379 WDA 2015 (Pa. Super. June 26, 2015).

On June 29, 2015, Appellant filed a pro se petition for a writ of habeas corpus. The PCRA court treated the filing as his third PCRA petition. While that petition was pending before the PCRA court, Appellant filed his fourth, pro se , PCRA petition. By order dated June 2, 2016, the PCRA court dismissed the fourth petition as untimely. This timely appeal followed.⁴

This case was originally submitted to a three-judge panel of this Court. See Superior Court Operating Procedure § 65.36(A). On April 12, 2017, this Court sua sponte ordered that this case be heard en banc and remanded the case to the PCRA court for the appointment of counsel. This Court directed counsel to address, in addition to any other issues deemed meritorious, whether a PCRA court possesses subject matter jurisdiction over a subsequent PCRA petition when a previous PCRA petition regarding the same judgment of sentence is pending before the PCRA court. Prior, three-judge panels of this Court reached divergent conclusions regarding this issue in unpublished memorandum decisions. Compare, e.g. , Commonwealth v. Hardy , 135 A.3d 647, 2015 WL 10490388, *6 (Pa. Super. 2015) (unpublished memorandum) with Commonwealth v. Walton , 135 A.3d 653, 2015 WL 10490473, *1 n.2 (Pa. Super. 2015). This case presents a vehicle to definitively resolve the issue and is now ripe for disposition.

Appellant presents three issues for our review:

1. Whether the PCRA court had jurisdiction to address a subsequent PCRA petition while a prior PCRA petition was still pending [before the PCRA court]?

2. Whether Appellant, a 22[–]year[-]old adult at the time his crime was committed, can rely on Miller ... to satisfy the [new constitutional rule] timeliness exception to the PCRA?

3. Whether Appellant is entitled to habeas corpus relief because the PCRA prohibits Appellant from challenging the legality of his sentence and Appellant continues to serve an illegal mandatory [LWOP] sentence[?]

Appellant's Substitute Brief at 5.

In his first issue, which this Court directed counsel for both parties to brief, Appellant argues that a PCRA court may exercise subject matter jurisdiction over two PCRA petitions relating to the same judgment of sentence at the same time. The Commonwealth agrees with Appellant that the pendency of a prior PCRA petition does not divest the PCRA court of subject matter jurisdiction to consider a subsequent PCRA petition. For the reasons set forth below, we agree with Appellant and the Commonwealth regarding this issue.

As noted above, Appellant's third PCRA petition was pending before the PCRA court when Appellant filed his fourth PCRA petition. Some prior three-judge panels of this Court have held that a PCRA court lacks subject matter jurisdiction over a fourth PCRA petition in these circumstances because of the pendency of the third PCRA petition. Other three-judge panels of this Court have reached the opposite conclusion and held that the pendency of a prior petition before a PCRA court does not divest the PCRA court of jurisdiction over a subsequent PCRA petition.

The confusion over this issue stems from two prior Supreme Court decisions addressing a PCRA court's jurisdiction over subsequent PCRA petitions. In Commonwealth v. Lark , 560 Pa. 487, 746 A.2d 585 (2000), our Supreme Court held that "a subsequent PCRA petition cannot be filed until the resolution of review of the pending PCRA petition by the highest state court in which review is sought, or upon the expiration of the time for seeking such review." Id. at 588. Our Supreme Court reasoned that "[a] second appeal cannot be taken when another proceeding of the same type is already pending." Id. (citation omitted). Where a petitioner attempts to raise a subsequent, independent claim for relief during the pendency of an earlier PCRA petition, his or her "only option is to raise it within a second PCRA petition filed within [60] days of the date of the order that finally resolves the [pending] PCRA petition[.]" Commonwealth v. Steele , 599 Pa. 341, 961 A.2d 786, 808–809 (2008).

More recently, however, in Commonwealth v. Porter , 613 Pa. 510, 35 A.3d 4 (2012), our Supreme Court held that the pendency of a PCRA petition that was held in abeyance, at the request of the petitioner, did not divest the PCRA court of jurisdiction to consider a subsequent PCRA petition filed in order to satisfy the Antiterrorism and Effective Death Penalty Act of 1996's state court exhaustion requirement.⁵ Porter , 35 A.3d at 12–15. Our Supreme Court stated that " Lark does not speak to the PCRA court's authority in situations like this one, where no appeal was pending, and where a prior petition was set aside, in accordance with the petitioner's demand that it not be decided." Id. at 14 (emphasis added). Thus, Porter held that the pendency of a PCRA petition did not affect the PCRA court's jurisdiction to consider a subsequent PCRA petition in a case where no PCRA appeal was pending and a prior petition was being held in abeyance at the petitioner's request. Cf. Commonwealth v. McCann , 329 Pa.Super. 466, 478 A.2d 883, 884 (1984) (The holding of a case "must be read in the context of its facts.").

Neither our Supreme Court nor this Court (in a published decision) has directly addressed whether Porter announced a new general rule or whether it announced a narrow exception to Lark . In other words, no reported decision in this Commonwealth has considered whether, in light of Porter and Lark , a PCRA court ordinarily has the ability to consider a later-filed PCRA petition when a prior PCRA petition is pending before the PCRA court and...