Commonwealth v. Seskey

• Decision Date: 21 April 2014
• Citation: 86 A.3d 237,2014 PA Super 27
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Regis SESKEY, Appellant.
• Court: Pennsylvania Superior Court

86 A.3d 237

2014 PA Super 27

COMMONWEALTH of Pennsylvania, Appellee

v.Regis SESKEY, Appellant.

Superior Court of Pennsylvania.

Submitted Feb. 4, 2013.

Filed Feb. 19, 2014.

Reargument Denied April 21, 2014.

Chris R. Eyster, Ligonier, for appellant.

Michael W. Streily, Deputy District Attorney and Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: ALLEN, J., WECHT, J., and STRASSBURGER, J.^*

OPINION BY WECHT, J.:

In this case, we are called upon to consider the United States Supreme Court's decision in Miller v. Alabama, ––– U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) in light of the Pennsylvania Supreme Court's decision in Commonwealth v. Cunningham, ––– Pa. ––––, 81 A.3d 1 (2013).

Regis Seskey (“Appellant”) appeals from a May 1, 2012 order. That order dismissedAppellant's second petition for relief under the Post–Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541–46, as untimely. We affirm.

When Appellant was seventeen years old, he was arrested and charged with criminal homicide for the shooting death of Mark Bova. On March 14, 1994, following a jury trial, Appellant was convicted of first-degree murder. ¹ On March 22, 1994, Appellant was sentenced to life in prison. On February 2, 1996, we affirmed Appellant's judgment of sentence. See Commonwealth v. Sesky, No. 600 Pittsburgh 1994, slip op. at 1, 676 A.2d 286 (Pa.Super. Feb. 2, 1996). The Supreme Court denied allocatur on August 16, 1996. See Commonwealth v. Seskey, 545 Pa. 670, 681 A.2d 1342 (1996) ( per curiam ).

On August 15, 1997, Appellant filed his first PCRA petition. Without a hearing, the PCRA court dismissed Appellant's petition on August 11, 1998. On November 25, 2002, we affirmed the dismissal. See Commonwealth v. Seskey, No. 330 WDA 2002, slip op. at 10, 816 A.2d 334 (Pa.Super. Nov. 5, 2002). On July 21, 2003, our Supreme Court again denied allocatur. See Commonwealth v. Seskey, 573 Pa. 716, 828 A.2d 350 (2003) ( per curiam ).

Appellant took no further action on his case until July 19, 2010, seven years after his first PCRA petition reached finality. The PCRA court set forth the procedural history as it transpired after Appellant's July 19, 2010 petition as follows:

Seven years after his second request for our state Supreme Court to review his case, [Appellant] filed a pro se Motion for PCRA relief. Counsel was appointed and, on February 15, 2012, he filed a two[-]headed pleading. His first claim was a Petition for Habeas Corpus Relief pursuant to Article 1, Section 14 of the Pennsylvania Constitution. His second claim was based upon the [PCRA]. The Court directed the Commonwealth to file an answer. It complied on March 14, 2012. A week later, this Court issued an order indicating its intent to dismiss [Appellant's] second PCRA[, wherein this Court stated the following:]

The Court takes this position because of the one (1) year time limitation at [42 Pa.C.S. § 9545(b) ] and [Appellant's] failure to satisfy any exceptions to the jurisdictional bar. The Court is also persuaded by the waiver argument advanced by the Commonwealth. Additionally, the Court finds—and is obligated to follow—the decision of Commonwealth v. Ortiz, 17 A.3d 417 (Pa.Super.2011). Ortiz ruled the U.S. Supreme Court's decision in [Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) ], does not apply to homicide cases. This is a homicide case from 1992! “At some point litigation must come to an end.” Commonwealth v. Peterkin , 722 A.2d 638, 643 (Pa.1998).

Order, (March 21, 2012). On April 30, 2012, [Appellant] filed a response to the Court's notice to dismiss. It raised no new claims. It responded to none of the justifications relied upon by the Court. It said [Appellant] “wishes to proceed with” his PCRA. Response, [¶ 2], (Apr. 30, 2012). On May 1, 2012, the Court followed up on its previously expressed intent and dismissed the PCRA petition.

* * *

On May 14, 2012, a timely Notice of Appeal (“NOA”) was filed. A [Pa.R.A.P.] 1925(b) order followed. On June 4, 2012, a timely Concise Statement of Errors Complained of on Appeal was filed. Through a June 18 [, 2012] order, the Court directed [Appellant] to file an Amended Concise Statement [to clarify one paragraph raised in the original statement.] The Amended Concise Statement was filed on June 25[, 2012]. [Appellant] simply eliminated [the unclear paragraph] from his original concise statement. As such, the matters [Appellant] intends to litigate on appeal are as follows:

1. The Court erred in denying [Appellant's] petition without a hearing.

2. The Court erred in denying [Appellant's] petition pursuant to Graham v. Florida and its progeny.

3. The Court erred in denying [Appellant's] petition where the Commonwealth violated [Appellant's] due process rights and Brady v. Maryland [373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ] by failing to disclose that [an] accomplice would not be prosecuted in exchange for his trial testimony.

4. The Court erred by not finding such evidence newly discovered evidence.

Amended Concise Statement, June 25, 2012.

Trial Court Opinion (“T.C.O.”), 6/24/2012, at 5–6 (some emphasis removed for consistency).

On June 25, 2012, after Appellant had filed a notice of appeal, the United States Supreme Court issued its decision in Miller, in which Court recognized a constitutional right for juveniles under the age of eighteen, and held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition against ‘cruel and unusual punishments.’ ” Id. at 2460. On June 27, 2012, Appellant filed a motion with this Court requesting that the case be remanded to the PCRA court in light of Miller. On June 29, 2012, this Court denied Appellant's motion. On July 5, 2012, Appellant sought reconsideration of the order. That motion was denied the following day. In response, Appellant filed a third PCRA petition in the PCRA court seeking relief under Miller.

In his initial brief to this Court, Appellant abandoned the four claims that he had raised in his second PCRA petition and in his concise statement of errors complained of on appeal. Instead, Appellant raised the following four questions for our review, each of which concerned the application of Miller:

I. Whether Appellant's life sentence without the possibility of parole for a juvenile is unconstitutional under the Eighth Amendment [to] the United States Constitution as well as Article I, Section 13 of the Pennsylvania Constitution?

II. Whether this Court applies Miller v. Alabama retroactively and remands this case for re-sentencing?

III. Whether Appellant should be re-sentenced based on the most severe lesser included offense of third-degree murder?

IV. Whether Appellant is entitled to an individualized re-sentencing hearing based on the lesser-included offense of third-degree murder?

Initial Brief for Appellant at 3.

While this case was pending, the Pennsylvania Supreme Court issued its decision in Cunningham, wherein the Court held that Miller did not apply retroactively. Cunningham, 81 A.3d at 6. In light of Cunningham, Appellant filed a motion with this Court seeking leave to file a supplemental brief. We granted Appellant's request, and provided both parties the opportunity to file supplemental briefs. Both parties have done so.

In his supplemental brief, Appellant now presents the following five issues for our consideration:

I. Whether Appellant's life sentence without the possibility of parole for a juvenile is unconstitutional under the Eighth Amendment [to] the United States Constitution as well as Article I, Section 13 of the Pennsylvania Constitution?

II. Whether this Court must apply Miller v. Alabama retroactively under federal and Pennsylvania law and remand this case for re-sentencing?

III. Whether Appellant's mandatory sentence of life without parole is unconstitutional under both Article I, §§ 1, 9, & 13 of the Pennsylvania Constitution and the Eighth and Fourteenth Amendments to the U.S. Constitution because two classes of prisoners sentenced to mandatory life without parole are treated differently?

IV. Whether this Court can also review these claims under Pennsylvania's constitutional guarantee of Habeas Corpus ?

V. Whether Appellant should be re-sentenced based on the most severe lesser-included offense of third-degree murder?

Supplemental Brief for Appellant at 3.

With the exception of issue IV, which we address separately at the end of this opinion, Appellant's claims are founded on the basic premise that his life sentence, which was imposed upon him when he was a juvenile, violates his right to be free from cruel and unusual punishment. It is well-established that such a claim constitutes a nonwaivable challenge to the legality of the sentence. Commonwealth v. Brown, 71 A.3d 1009, 1010 (Pa.Super.2013) (citing Commonwealth v. Yasipour, 957 A.2d 734, 740 n. 3 (Pa.Super.2008); Commonwealth v. Howard, 373 Pa.Super. 246, 540 A.2d 960, 961 (1988)). Thus, even though Appellant's claims were not first presented to the PCRA court in Appellant's PCRA petition or in his Rule 1925(b) concise statement as challenges to the legality of the sentence, they cannot be waived.

However, the fact that these claims are not waived does not mean that we have jurisdiction to review them. Waiver and jurisdiction are separate matters. “Though not technically waivable, a legality [of sentence] claim may nevertheless be lost should it be raised for the first time in an untimely PCRA petition for which no time-bar exception applies, thus depriving the court of jurisdiction over the claim.” Commonwealth v. Slotcavage, 939 A.2d 901, 903 (Pa.Super.2007) (citing Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214, 223 (1999) (“Although legality of sentence is always subject to review within the PCRA, claims must still first satisfy the PCRA's time limits or one of the exceptions thereto.”)).

“The PCRA's time restrictions are...