Com. v. Herring, G.
Com. v. Herring, G. No. 766 WDA 2016
| Pa. Super. Ct. | Apr 11, 2017Background
- In 2006 a jury convicted Greg Dewayne Herring of second-degree murder, robbery (serious bodily injury), and criminal conspiracy; he was sentenced to life without parole.
- Herring appealed; the Superior Court affirmed in 2007 and he did not seek allowance of appeal to the Pennsylvania Supreme Court.
- Herring filed a timely first PCRA petition in 2008; it was dismissed in 2011 and that dismissal was affirmed in 2012.
- In March 2016 Herring filed a second PCRA petition asserting Eighth Amendment (cruel and unusual punishment), Equal Protection, and Due Process claims based on juvenile-sentencing precedent.
- The PCRA court issued Rule 907 notice and dismissed the petition as untimely; Herring appealed, arguing retroactive application of Miller/Montgomery.
- The Superior Court held Herring’s petition was facially untimely and Miller does not apply because Herring was 19 at the time of the offense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of PCRA petition | Herring: Miller/Montgomery created a new constitutional rule that applies retroactively, so his 2016 petition fits the §9545(b)(1)(iii) exception | Commonwealth: Judgment became final in 2007; petition filed in 2016 is untimely and Miller does not apply to offenders who were 18+ at the time of the crime | Petition is untimely; Miller exception not available because Herring was 19 at offense |
| Eighth Amendment (mandatory LWOP for juveniles) | Herring: Mandatory life-without-parole for those classified as juveniles violates proportionality and Eighth Amendment under Miller | Commonwealth: Miller protects only those under 18 at offense; Herring was 19 so claim cannot rescue untimely petition | Court rejected claim on timeliness grounds; Miller inapplicable to 19-year-old offender |
| Equal Protection (classification of juveniles) | Herring: Pennsylvania law defines him as juvenile for some purposes and equal protection requires the classification to be relevant; challenges differential treatment | Commonwealth: Even if raised, not timely and does not fall within retroactivity exception relied upon | Court did not reach merits; claim fails due to untimeliness |
| Due Process (Eighth Amendment protections) | Herring: Due process requires individualized sentencing considerations for juveniles and incorporates Miller protections | Commonwealth: Miller does not apply; petition untimely | Dismissed as untimely; no relief because petitioner was 19 at time of offense |
Key Cases Cited
- Miller v. Alabama, 132 S. Ct. 2455 (U.S. 2012) (mandatory life-without-parole for offenders under 18 is unconstitutional)
- Montgomery v. Louisiana, 136 S. Ct. 718 (U.S. 2016) (Miller announced a substantive rule that applies retroactively on state collateral review)
- Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013) (Miller does not extend to offenders who were 18 or older at the time of the offense)
- Commonwealth v. Furgess, 149 A.3d 90 (Pa. Super. 2016) (reaffirming that Miller’s protection is limited to those under 18 at offense)
- Commonwealth v. Brown, 111 A.3d 171 (Pa. Super. 2015) (timeliness of PCRA petition is jurisdictional)
- Commonwealth v. Ousley, 21 A.3d 1238 (Pa. Super. 2011) (standard of review for denial of PCRA petition)