COMMONWEALTH OF PENNSYLVANIA v. AVIS LEE
No. 1891 WDA 2016
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED MARCH 01, 2019
2019 PA Super 64
OPINION BY LAZARUS, J.
J-E03002-18; Appeal from the PCRA Order November 17, 2016; In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0005128-1980
BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., PANELLA, J., LAZARUS, J., OTT, J., STABILE, J., DUBOW, J., and MURRAY, J.
Avis Lee appeals from the order dismissing, as untimely, her sixth petition filed pursuant to the Post-Conviction Relief Act (PCRA),
In 1981, a jury convicted Lee of second-degree murder. The convictions stemmed from the shooting death of Robert Walker during an attempted robbery. The evidence at trial established that Lee suggested the robbery to her brother, Dale Stacy Madden, that Lee was designated to serve as the lookout, and that Lee was aware that her brother was carrying a loaded gun. Lee was tried jointly with co-defendants Madden and another man, co-conspirator Arthur Jeffries.
Following conviction, the court properly sentenced Lee to a mandatory life sentence without the possibility of parole. On appeal, this Court affirmed her judgment of sentence. See Commonwealth v. Lee, 838 PGH 1981, (Pa. Super. filed July 16, 1982) (unpublished memorandum). Over the past twenty-two years, Lee has unsuccessfully sought state post-conviction relief and habeas corpus relief in the federal courts.
In 2012, the United States Supreme Court decided Miller, supra, which held mandatory life without parole sentences for those under the age of 18 at the time of their crimes violate the Eighth Amendment‘s prohibition on “cruel and unusual punishments.” Miller, 567 U.S. at 465.2
On March 24, 2016, fifty-nine days after the Court decided Montgomery, Lee filed her sixth PCRA petition, asserting she was a “virtual minor” at the time of her crime and was therefore entitled to the benefit of the constitutional rule announced in Miller and made retroactive by Montgomery. She claimed the sentencing court in her case “did not have the ability to consider the mitigating qualities of [her] youth during sentencing[.]” Amended PCRA Petition, 3/24/16, at 13. Lee argued, therefore, that the rationale underlying the Miller holding, including consideration of characteristics of youth and age-related facts identified as constitutionally significant by the Miller Court, provides support for extending the benefit of Miller to her case.
The PCRA court found Miller inapplicable because Lee was not under the age of 18 at the time of her crime. Lee was born on January 23, 1961; on November 2, 1979, when the crime occurred, she was 18 years and nine months old. Finding Lee had failed to prove the applicability of the newly-recognized constitutional right exception to the PCRA time-bar under
On appeal, a panel of this Court affirmed. The decision of our Court in this case, bound by precedent on this issue, rejected the “virtual-minor theory” as a basis to invoke
Initially, we note that this Court granted reargument en banc in this case on March 9, 2018.4 Five days later, on March 14, 2018, this Court filed its decision in Commonwealth v. Montgomery, 181 A.3d 359 (Pa. Super. 2018) (en banc), appeal denied, 190 A.3d 1134 (Pa. 2018).
In Commonwealth v. Montgomery,5 petitioner, who was 22 years old at the time he committed murder, for which he was sentenced to life imprisonment without the possibility of parole, argued that his brain was not fully developed. Petitioner contended that he satisfied the new constitutional rule exception to the PCRA time-bar because he was entitled to relief under Miller, made retroactive by Montgomery. We disagreed, holding that petitioner failed to show that the new constitutional rule extended to individuals who had committed homicides after they reached the age of 18. Commonwealth v. Montgomery, 181 A.3d at 366. Relying on Furgess and Cintora, this Court held that simply contending that a newly-recognized constitutional right should be extended to others does not satisfy the new constitutional rule exception to the PCRA‘s timeliness requirement. Commonwealth v. Montgomery, 181 A.3d at 366 (citing Furgess, 149 A.3d at 94, and Cintora, 69 A.3d at 764). We also found meritless petitioner‘s argument that Furgess was distinguishable. We stated:
[Petitioner] argues that Furgess is distinguishable from the case at bar because in Furgess the petitioner only raised a claim under the Eighth Amendment while he also raises a claim under the Fourteenth Amendment‘s Equal Protection Clause. This argument, however, is misplaced. Neither the Supreme Court of the United States nor our Supreme Court has held that Miller announced a new rule under the Equal Protection Clause. Instead, Miller only announced a new rule with respect to the Eighth Amendment. Thus, contrary to [petitioner‘s] assertion, his Equal Protection Clause argument is also an attempt to extend Miller‘s holding.
Commonwealth v. Montgomery, 181 A.3d at 366 (emphasis added).6 Notably, we declined petitioner‘s invitation to overturn Furgess, stating that “the three-judge panel‘s analysis is correct[.]” Id. at 367.
On the same day this Court filed its decision in Commonwealth v. Montgomery, the Commonwealth filed a motion for clarification of the order granting en banc review in light of that decision. The Commonwealth averred: “[T]this Court rejected Montgomery‘s attempt to extend the holding in Miller to those who were 18 years of age or older when they committed their crimes under the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment.” Motion for Clarification, 3/14/18, at ¶ 3. In response, Lee averred that her “rationale versus specific holding” argument renders the right established in Miller applicable to her, and that “the ‘right’ established in Miller cannot be limited to the narrow ‘holding’ identified by this Court in Com[monwealth] v. Montgomery, Cintora, and Furgess.” Answer to Motion for Clarification, 4/12/18, at ¶¶ 10-18, 29.7 By order dated April 25,
- Did the PCRA court err in rejecting [Lee‘s] claim that the right established in Miller v. Alabama applies to petitioner who possessed those characteristics of youth identified as constitutionally significant for sentencing purposes by the U.S. Supreme Court?
- Did the PCRA court abuse its discretion in failing to hold an evidentiary hearing where petitioner had raised issues of material fact that entitle her to relief?
Appellant‘s Substituted Brief, at 4.
When reviewing the denial of a PCRA petition, we must determine whether the PCRA court‘s order is supported by the record and free of legal error. Commonwealth v. Smith, 181 A.3d 1168, 1174 (Pa. Super. 2018). Generally, we are bound by a PCRA court‘s credibility determinations. However, with regard to a court‘s legal conclusions, we apply a de novo standard. Id. However, we first address the timeliness of Lee‘s petition, as timeliness is a jurisdictional requisite and may not be altered or disregarded in order to address the merits of a petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007); see also Commonwealth v. Zeigler, 148 A.3d 849 (Pa. Super. 2016).
A PCRA petition, including a second or subsequent petition, shall be filed within one year of the date the underlying judgment of sentence becomes final.
“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 [PCRA] court has no power to address the substantive merits of a petitioner‘s PCRA claims.” Commonwealth v. Gamboa–Taylor, 753 A.2d 780, 783 (Pa. 2000).
Here, the court imposed Lee‘s sentence in 1981; Lee filed the instant petition on March 24, 2016, thirty-five years later. See
(b) Time for filing petition.--
(1) any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition alleges and the petitioner proves that: (i) the failure to raise the 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 law of the United States;
(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.
Because the United States Supreme Court‘s decision in Montgomery established that Miller applies retroactively, and because Lee filed her petition within 60 days of the Montgomery ruling, she has ostensibly satisfied the requirements of
Further, Lee contends Montgomery is instructive in determining which portions of Miller were “necessary” to the result and therefore encompassed within its ambit. She claims Montgomery eschewed a narrow reading of Miller and recognized that the “foundation stone” for Miller‘s analysis was the Court‘s line of precedent holding certain punishments disproportionate when applied to juveniles. Miller, 567 U.S. at 470 n.4.10 See
(b) Notice.--Reasonable notice to the defendant of the Commonwealth‘s intention to seek a sentence of life imprisonment without parole under subsection (a) shall be provided after conviction and before sentencing.
(c) Second[-]degree murder.--A person who has been convicted after June 24, 2012, of a murder of the second degree, second[-]degree murder of an unborn child or murder of a law enforcement officer of the second degree and who was under the age of 18 at the time of the commission of the offense shall be sentenced as follows:
(1) A person who at the time of the commission of the offense was 15 years of age or older shall be sentenced to a term of imprisonment the minimum of which shall be at least 30 years to life.
(2) A person who at the time of the commission of the offense was under 15 years of age shall be sentenced to a term of imprisonment the minimum of which shall be at least 20 years to life.
(d) Findings.--In determining whether to impose a sentence of life without parole under subsection (a), the court shall consider and make findings on the record regarding the following:
(1) The impact of the offense on each victim, including oral and written victim impact statements made or submitted by family members of the victim detailing the physical, psychological and economic effects of the crime on the victim and the victim‘s family. A victim impact statement may include comment on the sentence of the defendant.
(2) The impact of the offense on the community.
(3) The threat to the safety of the public or any individual posed by the defendant.
(4) The nature and circumstances of the offense committed by the defendant.
(5) The degree of the defendant‘s culpability.
(6) Guidelines for sentencing and resentencing adopted by the Pennsylvania Commission on Sentencing.
(7) Age-related characteristics of the defendant, including:
(i) Age.
(ii) Mental capacity.
(iii) Maturity.
(iv) The degree of criminal sophistication exhibited by the defendant.
(v) The nature and extent of any prior delinquent or criminal history, including the success or failure of any previous attempts by the court to rehabilitate the defendant.
(vi) Probation or institutional reports.
(vii) Other relevant factors.
and run[] afoul of our cases’ requirement of individual sentencing for defendants facing the most serious penalties.” Id. at 242-43, quoting Miller, 567 U.S. at 465 (internal quotation marks omitted)).
In Furgess, petitioner sought to extend Miller to those adults whose brains were not fully developed at the time of their offense. See Furgess, 149 A.3d at 94. This argument failed. Reiterating Miller only applies to defendants who were “under the age of 18 at the time of their crimes[,]” Furgess, 149 A.3d at 94, we stated: “[A] contention that a newly-recognized constitutional right should be extended to others does not [satisfy the new constitutional rule exception to the PCRA‘s timeliness requirement.]” Id. at 95 (internal alteration omitted; emphasis removed), quoting Cintora, 69 A.3d at 764.
Miller says nothing about defendants who were 18 years old or older at the time of the commission of their crimes. The Miller Court applied the scientific studies and principles set forth in Roper v. Simmons, 543 U.S. 551 (2005), and Graham v. Florida, 560 U.S. 48 (2010), and concluded the prohibition against mandatory life sentences pertained to juveniles, in particular, in the case of Miller, to two fourteen year olds. The Miller Court noted the difficulty in distinguishing “at this early age between ‘the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.‘” Miller, 567 U.S. at 479, citing Roper, 543 U.S. at 573, and Graham, 560 U.S. at 68. The Court reasoned: “By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.” Miller, 567 U.S. at 479. The Miller rationale underscored three factors: “characteristics of youth,” “disproportionate punishment,” and “science and social science relating to adolescent development.” Id. at 473-489.
Lee cites to “immature brain” studies that would establish that her brain was underdeveloped at the time of her crime, and that she could not form the requisite intent for second-degree murder. Miller, she argues, prohibits the mandatory imposition of life without parole sentences upon offenders who possess “characteristics of youth” that render them categorically less culpable under the Eighth Amendment. Thus, Lee submits, the Miller rationale applies to her case and, accordingly, provides an exception to the PCRA time-bar. See
There is no question the scientific studies and principles underlying Miller informed its holding. Our Supreme Court, in Batts II, reviewed Miller, Roper and Graham, and discussed those principles at length. The express age limit, however, though arguably not critical to the Miller holding, is, in our opinion, essential to an orderly and practical application of the law. Conceptually, there may not be any statistically significant difference between the mental maturity of a 17-year-old and an 18-year-old, or an 18-year-old and a 19-year-old, and so the question becomes, where do we draw the line? Drawing the line at 18 years of age is subject, of course, to the objections always raised against categorical rules. The qualities that distinguish juveniles from adults do not disappear when an individual turns 18. By the same token, some under 18 have already attained a level of maturity some adults will never reach. [H]owever, a line must be drawn. . . . The age of 18 is the point where society draws the line for many purposes between childhood and adulthood. It is, we conclude, the age at
We recognize that the principles underlying the Miller holding are more general; who qualifies as a “juvenile” and whether Miller applies to Lee are better characterized as questions on the merits, not as preliminary jurisdictional questions under
In Commonwealth v. Chambers, 35 A.3d 34 (Pa. Super. 2011), this Court addressed an analogous claim. There, Chambers filed an untimely PCRA petition and sought to establish that he had satisfied the exception contained in
Chambers argued that the rationale of Graham should be extended to apply to a juvenile sentenced to life in prison for a second-degree murder conviction. The Commonwealth argued that Chambers was not entitled to relief because Graham only applies to juveniles convicted of non-homicide offenses, and Chambers was convicted of second-degree murder.
Concluding Chambers misapprehended the scope of the timeliness exception embodied in
For purposes of deciding whether the timeliness exception to the PCRA based on the creation of a new constitutional right is applicable, the distinction between the holding of a case and its rationale is crucial since only a precise creation of a constitutional right can afford a petitioner relief. . . . [T]he rationale used by the Supreme Court is irrelevant to the evaluation of a § 9545(b)(1)(iii) timeliness exception to the PCRA, as the right must be one that has been expressly recognized by either the Pennsylvania or United States Supreme Court. Thus, for the purpose of the timeliness exception to the PCRA, only the holding of the case is relevant.
Chambers, 35 A.3d at 40-43 (emphasis added). Here, as in Chambers, Lee is not basing her argument on any newly-recognized constitutional right as contemplated by the PCRA. For this reason, we find Lee‘s reliance on Seminole Tribe, supra, for the principle that stare decisis directs courts to adhere not only to holdings of prior cases, but also to explications of the governing rules of law, is misplaced. “While rationales that support holdings are used by courts to recognize new rights, this judicial tool is not available to PCRA petitioners.” Chambers, supra at 42. See also Seminole Tribe, supra at 67 (“When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound.“). Simply put, that principle is not applicable in the context of collateral review. Further, we do not find Lee‘s reliance on Batts II
It is not this Court‘s role to override the gatekeeping function of the PCRA time-bar and create jurisdiction where it does not exist. The PCRA‘s time limitations “are mandatory and interpreted literally; thus, a court has no authority to extend filing periods except as the statute permits.” Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999). The period for filing a PCRA petition “is not subject to the doctrine of equitable tolling.” Id.
We recognize the vast expert research on this issue. If this matter were one of first impression and on direct appeal, we might expound differently. However, we are an error-correcting court. Until the United States Supreme Court or the Pennsylvania Supreme Court recognizes a new constitutional right in a non-juvenile offender, we are bound by precedent.11 We conclude, as we did in Commonwealth v. Montgomery, Furgess and Cintora, that age is the sole factor in determining whether Miller applies to overcome the PCRA time-bar and we decline to extend its categorical holding.
Because Lee has failed to successfully plead or prove that she meets the new constitutional right exception to the timeliness requirements of the PCRA,
Order affirmed.
President Judge Gantman, President Judge Emeritus Bender, Judge Bowes, Judge Panella, Judge Ott, Judge Dubow and Judge Murray join in this Opinion.
Judge Stabile concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/1/2019
Notes
- Mandatory life-without-parole sentence constitutes disproportionate punishment in violation of the Eighth Amendment to the U.S. Constitution because she was developmentally an adolescent and possessed the age-related characteristics of youth that must be taken into consideration prior to imposing a sentence of life-without-parole pursuant to Miller, thus the right established in Miller applies to Ms. Lee, her PCRA petition meets the newly-established constitutional right exception to the PCRA‘s timeliness requirements;
- Disproportionate punishment in violation of the Eighth Amendment because she did not kill or intend to kill, which rendered her of diminished culpability for purposes of imposing a sentence of life-without-parole, as Miller incorporated the U.S. Supreme Court‘s proportionality jurisprudence;
- Combined effect of Ms. Lee‘s youth and developmental characteristics, her experience of extreme childhood and adolescent abuse and trauma, and her lack of intent to kill render her life-without-parole sentence unconstitutional in violation of the Eighth Amendment;
- A violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and
Article 1, § 26 of the Pennsylvania Constitution because the arbitrary discrepancy in sentencing between 17- and 18-year-olds under Pennsylvania law lacks a rational basis.
§ 1102.1. Sentence of persons under the age of 18 for murder, murder of an unborn child and murder of a law enforcement officer
(a) First[-]degree murder.--A person who has been convicted after June 24, 2012, of a murder of the first degree, first[-]degree murder of an unborn child or murder of a law enforcement officer of the first degree and who was under the age of 18 at the time of the commission of the offense shall be sentenced as follows:
(1) A person who at the time of the commission of the offense was 15 years of age or older shall be sentenced to a term of life imprisonment without parole, or a term of imprisonment, the minimum of which shall be at least 35 years to life.
(2) A person who at the time of the commission of the offense was under 15 years of age shall be sentenced to a term of life imprisonment without parole, or a term of imprisonment, the minimum of which shall be at least 25 years to life.