Commonwealth v. Reed

• Decision Date: 19 December 2014
• Docket Number: No. 1956 WDA 2013,1956 WDA 2013
• Citation: 2014 PA Super 280,107 A.3d 137
• Court: Pennsylvania Superior Court
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Michael REED, Appellant.

107 A.3d 137

2014 PA Super 280

COMMONWEALTH of Pennsylvania, Appellee

v.Michael REED, Appellant.

No. 1956 WDA 2013

Superior Court of Pennsylvania.

Submitted Aug. 18, 2014.

Filed Dec. 19, 2014.

Michael Reed, appellant, pro se.

Keaton Carr, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.^*

Opinion

OPINION BY PLATT, J.:

Appellant, Michael Reed, appeals from the dismissal of his fourth petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541 –9546. Counsel has filed a petition to withdraw from further representation pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988) (en banc ). The chief question for our review is whether the United States Supreme Court's decision in Miller v. Alabama, ––– U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) applies retroactively to Appellant.¹ Neither the United States Supreme Court nor our Supreme Court has held that Miller applies retroactively. Accordingly, we conclude that Appellant's PCRA petition is untimely, with no statutory exception to the time-bar proven. Counsel has substantially complied with the procedures to request withdrawal. Therefore, we grant counsel's petition to withdraw and affirm the dismissal of Appellant's PCRA petition.

The underlying facts are not in dispute. See Commonwealth v. Reed, 435 Pa.Super. 304, 645 A.2d 872, 873 (1994) (en banc ), appeal denied, 540 Pa. 630, 658 A.2d 794 (1995). On April 18, 1990, Appellant and a co-defendant, Jackie Lee Williams, both then seventeen years old,² hailed a cab in Pittsburgh. When they arrived at their destination, they informed the cab driver, Thomas Law, that they did not have money to pay the fare. After an argument, and Mr. Law's threat to go to the police, Appellant fatally shot and robbed him. A jury convicted Appellant of murder of the first degree and robbery, on June 6, 1991. The court sentenced him to life imprisonment on April 3, 1992. This Court affirmed the judgment of sentence, and our Supreme Court denied allowance of appeal. See id.

Appellant filed the instant fourth PCRA petition on July 10, 2012, and the PCRA court appointed current counsel, who filed an amended petition.³ The PCRA court filed notice of its intent to dismiss. (See Order, 9/05/12); see also Pa.R.Crim.P. 907(1). Appellant filed a counseled response. The court dismissed the petition on December 9, 2013, as patently frivolous.⁴ Appellant timely appealed. On June 27, 2014, counsel filed an “Application for Leave to Withdraw as Counsel under Turner and Finley ” along with a supporting brief.⁵ Appellant has not filed a response to the petition to withdraw.

Counsel's brief presents three questions for our review:

1. Whether the PCRA [c]ourt erred in denial [of] PCRA relief on the basis that the PCRA proceeding was untimely?

2. Whether the United States Supreme Court held that the rule in Miller v. Alabama, by applying said rule in the companion case of Jackson v. Hobbs, applies retroactively to cases where direct review had concluded prior to the announcement of said rule in Miller v. Alabama?

3. Whether Commonwealth v. Batts , 66 A.3d 286 (2013) recognized a rule of constitutional law under the Pennsylvania Constitution similar to that in Miller v. Alabama and does the rule in Batts apply retroactively to cases where direct review concluded prior to the announcement of said rule in Batts?

(“Anders ” Brief, at 3).

Our standard and scope of review are well-settled.

We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court's decision on any grounds if the record supports it. We grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Further, where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary.

* * *

The Turner/Finley decisions provide the manner for postconviction counsel to withdraw from representation. The holdings of those cases mandate an independent review of the record by competent counsel before a PCRA court or appellate court can authorize an attorney's withdrawal. The necessary independent review requires counsel to file a “no-merit” letter detailing the nature and extent of his review and list each issue the petitioner wishes to have examined, explaining why those issues are meritless. The PCRA court, or an appellate court if the no-merit letter is filed before it, see Turner, supra, then must conduct its own independent evaluation of the record and agree with counsel that the petition is without merit....

[T]his Court [has] imposed additional requirements on counsel that closely track the procedure for withdrawing on direct appeal.... [C]ounsel is required to contemporaneously serve upon his [or her] client his [or her] no-merit letter and application to withdraw along with a statement that if the court granted counsel's withdrawal request, the client may proceed pro se or with a privately retained attorney....

Commonwealth v. Rykard, 55 A.3d 1177, 1183–84 (Pa.Super.2012), appeal denied, 619 Pa. 714, 64 A.3d 631 (2013) (some citations and footnote omitted).

[T]he time limitations pursuant to ... the PCRA are jurisdictional. [Jurisdictional time] limitations are mandatory and interpreted literally; thus, a court has no authority to extend filing periods except as the statute permits. If the petition is determined to be untimely, and no exception has been pled and proven, the petition must be dismissed without a hearing because Pennsylvania courts are without jurisdiction to consider the merits of the petition.

Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.Super.2011), appeal denied, 616 Pa. 634, 47 A.3d 845 (2012) (citations, quotation marks and other punctuation omitted).

Here, our review of the record confirms that counsel has substantially complied with the procedural requirements to withdraw.⁶ Accordingly, we will proceed with our independent review of the questions presented to determine if counsel correctly concluded that the issues raised had no merit.

Our Supreme Court denied allowance of appeal in this case on April 18, 1995. See Reed, supra , 658 A.2d 794. Thus, Appellant's judgment of sentence became final on Monday, July 17, 1995, ninety days after our Supreme Court denied the petition to appeal and the time for Appellant to file a petition for writ of certiorari with the United States Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3) ; United States Supreme Court Rule 13. Accordingly, Appellant had one year to file a petition for PCRA relief, or until July 17, 1996. See 42 Pa.C.S.A. § 9545(b)(1). Therefore, Appellant's instant petition is facially untimely.

When a petition is otherwise untimely, to obtain PCRA relief under the exception for a newly recognized constitutional right, a petitioner has the burden to plead and prove that “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.A. § 9545(b)(1)(iii) (emphasis added).

Consequently, the only substantive issue for our review is whether Appellant can claim an exception to the statutory PCRA time-bar on the grounds that Miller, supra, (or Batts, supra ) can be applied retroactively to him.⁷ (See “Anders ” Brief, at 3).

Appellant cannot do so. The United States Supreme Court has not ruled that Miller is retroactive. Furthermore, our Supreme Court, in Commonwealth v. Cunningham, 622 Pa. 543, 81 A.3d 1 (2013), cert. denied, ––– U.S. ––––, 134 S.Ct. 2724, 189 L.Ed.2d 763 (2014), has decided that Miller is not:

Here, applying settled principles of appellate review, nothing in Appellant's arguments persuades us 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.

Cunningham addressed retroactivity under principles enunciated by the Unites States Supreme Court in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), in pertinent part, as follows:

Briefly, Teague v. Lane, [supra] (plurality), delineated a general rule of non-retroactivity for new procedural, constitutional rules announced by the Court, WAYNE R. LAFAVE, JEROLD H. ISRAEL, NANCY J. KING & ORIN S. KERR, 1 CRIM. PROC. § 2.11(e) (3d ed.2012) (relating that Teague has been described as establishing a “law at the time” principle), subject to two narrow exceptions. This construct was solidified by the majority decision in Penry v. Lynaugh, 492 U.S. 302, 329–30, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). As relevant here, the exceptions extend to “rules prohibiting a certain category of punishment for a class of defendants because of their status or offense,” Penry, 492 U.S. at 330, 109 S.Ct. 2934 and “watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” Horn v. Banks, 536 U.S. 266, 271 n. 5, 122 S.Ct. 2147, 153 L.Ed.2d 301, .... More recently, in Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), the High Court appears to have merged the first Teague exception with the principle that new substantive rules generally apply retroactively. See id. at 351–52 & n. 4, 124 S.Ct. 2519. See generally Drinan, Graham on the

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