Lead Opinion
OPINION BY
Aрpellant, 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,
The underlying facts are not in dispute. See Commonwealth v. Reed,
Appellant filed the instant fourth PCRA petition on July 10, 2012, and the PCRA court appointed current counsel, who filed an amended petition.
Counsel’s brief presents three questions for our review:
1. Whether the PCRA [cjourt erred in denial [of] PCRA relief on the basisthat 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?
8. Whether Commonwealth v. Batts [620 Pa. 115 ],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 thе 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 rеview 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,
[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,
Here, our review of the record confirms that counsel has substantially complied with the рrocedural requirements to withdraw.
Our Supreme Court denied allowance of appeal in this case on April 18, 1995. See Reed, supra,
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)(l)(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.
Appellant cannot do so. The United States Supreme Court has not ruled that Miller is retroactive. Furthermore, our Supreme Court, in Commonwealth v. Cunningham,
Here, applying settled principles of appellate review, nothing in Appellant’s arguments persuades us that Miller’s proscriрtion 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,
Briefly, Teague v. Lane, [supra] (plurality), delineated a gеneral 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) (3ded.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 сlass 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 Ground, 87 WASH. L.REV. at 66 (explaining that “the Court has shifted its terminology somewhat and has describеd new rules as ‘substantive’ when they ‘alterf ] the range of conduct or the class of persons that the law punishes,’ rather than describing them as falling within the first of the two non-retroactivity exceptions).”
Cunningham, swpra at 4-5 (footnotes and' some punctuation omitted; emphasis in original).'
Here, because the first question presents only a generalized claim of error, as previously noted, we review it in conjunction with the two remaining questions. The second question raises the issue of whether the Miller Court’s application of its holding to the companion case of Jackson v. Hobbs compels retroactive application of Miller here. (See “Anders ” Brief, at 3); see also Miller, supra at 2475. This claim disregards the special status of a case directly reviewed by the United States Supreme Court, as well as ignoring the case specific analysis that application of the Teague principles requires. Furthermore, Cunningham expressly rejected this argument: “Initially, we reject Appellant’s position that the Miller Court’s reversal of the state appellate court decision affirming the denial of postconviction relief in the Jackson case compels the conclusion that Miller is retroactive.” Cunningham, supra at 9. The second question does not merit relief.
The third, final question posits that our Supreme Court’s holding in Commonwealth v. Batts,
Moreover, these retroactivity arguments ignore the general rulе on retroactive application adopted in Teague: “Unless they fall within an exception to the general rule, new constitutional rules of
We recognize that different courts have reached substantially differing conclusions on the retroactive application of Miller.
At the outset we observe that it is well-settled that this Court is not bound by the decisions of federal courts, other than the United States Supreme Court, or the decisions of other states’ courts. See Track v. Fellin,817 A.2d 1102 , 1115 (Pa.Super.200S), appeal denied sub nom. Trach v. Thrift Drug, Inc.,577 Pa. 725 ,847 A.2d 1288 (2004). “We recognize that we are not bound by these cases; however, we may use them for guidance to the degree we find them useful and not incompatible with Pennsylvania law.” Id.
Eckman v. Erie Ins. Exchange,
“This Court is bound by existing precedent under the doctrine of stare decisis and continues to follow controlling precedent as long as the decision has not been overturned by our Supreme Court.” Commonwealth v. Slocum,
Here, the question of whether Miller represents a watershed rule' has been addressed by our Supreme Court. See Cunningham, supra at 10. Noting that the United States Supreme Court has limited the watershed/bedrock exception, the second Teague exception, “to ‘sweeping
The Cunningham Court cited Whorton v. Bockting,
The Crawford rule also did not “alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” ... [T]his requirement cannot be met simply by showing that a new procedural rule is based on a “bedrock” right. We have frequently held that the Teague bar to retroactivity applies to new rules that are basеd on “bedrock” constitutional rights. Similarly, that a new procedural rule is “fundamental” in some abstract sense is not enough.
Id. at 420-21,
Our reasoning differs from that of the PCRA court. However, we may affirm the PCRA court’s order on any basis. See Commonwealth v. Doty,
Order affirmed. Petition to withdraw granted.
President Judge GANTMAN joins the Opinion.
President Judge Emeritus Bender files a Concurring Opinion.
Notes
. In Miller the United States Supreme Court concluded that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment. See id. at 2464.
. Appellant, born on June 30, 1972, acknowledges that on the day of the crime he was seventeen years, nine months, two weeks and five days old. (See Response to Notice of Intention to Dismiss, 9/17/12, at unnumbered page 1, ¶¶ 1-2). In other words, Appellant was two months and twelve days short of his eighteenth birthday.
. We note that Appellant filed his petition within fifteen days of the United States Supreme Court's decision in Miller, filed on June 25, 2012. Therefore, his petition complied with the PCRA sixty day rule. See 42 Pa.C.S.A. § 9545(b)(2) ("Any petition invoking an exception provided in paragraph (1) shall be filed within 60 days of the date the claim could have been presented.”).
. For reasons not readily apparent from the record, the PCRA court also filed essentially identical orders of dismissal in this case on December 17, 2013, and January 14, 2014.
. Counsel submitted a brief in the nature of an Anders brief in support of the petition to withdraw. (See "Brief in Support of Application for Leave to Withdraw as Counsel under Turner and Finley,” 6/27/14); see also Anders v. California,
. Specifically, counsel filed a petition to withdraw on June 27, 2014. Counsel contemporaneously filed her supporting brief. She attached a copy of the letter sent to Appellant notifying him of her conclusion that he was not entitled to relief under the PCRA. Counsel enclosed with her notice letter to Appellant a copy of her petition to withdraw and a copy of her brief. She informed Appellant of his right to retain private counsel, proceed pro se, file a supplemental brief, or discontinue his appeal. Appellant has not filed a response.
. The first question presents only a general claim of еrror. (See "Anders " Brief, at 3).
. See e.g., State v. Mantich,
. For similar reasons, we decline to fault counsel, or deny her permission to withdraw, on speculation that the conclusion or the reasoning of our Supreme Court in Cunningham may change in the future. "An attorney cannot be deemed ineffective for failing to anticipate a change or development in the law.” Commonwealth v. Hill, — Pa. -,
.
Concurrence Opinion
CONCURRING OPINION BY
While I concur in the Majority’s result, I disagree with the Majority’s conclusion that Commonwealth v. Cunningham,
Specifically, I believe the Majority’s statement that “the question of whether Miller represents a watershed rule has been addressed by our Supreme Court” inaccurately reflects the Supreme Court’s holding in Cunningham. Majority Opinion at 143. I note that the Cunningham Court acknowledged that
Teague v. Lane[1 ] delineated a general rule of non-retroactivity for new procedural, constitutional rules announced by the Court, ... subject to two narrow exceptions. ... [T]he exceptions extend to “rules prohibiting a certain category of punishment for a class of defendants because of their status or offense,” and “watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.”
Cunningham,
Significantly, the Cunningham Court then went on to state: “As to the second Teague exception, as we have previously noted, Appellant has not developed his arguments in such terms.” Id. In doing so, the Cunningham Court acknowledged that the question of whether Miller represented a so-called “watershed rule of criminal procedure” was not before them.
The Cunningham Court then questioned whether the United States Supreme Court would find that Miller presents a watershed rule:
We will say that, given the high importance attached by the Miller majority to the new rule which it discerned, it seems possible that some Justices of the United States Supreme Court may find the rule to be of the watershed variety.... We doubt, however, that a majority of the Justices would broaden the exception beyond the exceedingly narrow ... parameters reflected in the line of decisions referenced by the Commonwealth. According to the Court, the exception is limited to “sweeping” changes on the order of Gideon v. Wainwright;l 2 ] modifications of a less broadscale nature, while they may be very important, simply do not require retroactive application, under the second Teague exception.
Id. at 10.
The Majority interprets this discussion as a holding, stating that “there is no reasonable doubt about our Supreme Court’s conclusion in Cunningham on the non-retroactivity of Miller.” Majority Opinion at 144. However, I believe the Cunningham Court’s discussion regarding the second Teague exception is dicta. First, the Cunningham Court acknowledged that the issue of whether Miller represents a “watershed rule” had not been raised by the appellant. In addition, the Court noted that it was speculating as to how the United States Supreme Court might rule on the issue, and it did not purport to undertake its own analysis. Finally, the Cunningham Court explicitly expressed its uncertainty with regard to how the United States Supreme Court might theoretically decide the issue. The Court noted that it “seems possible that some Justices ... may find the rule to be of the watershed variety,” but “doubt[ed] that a majority of the Justices would” reach that conclusion. Cunningham at 10. Thus, I believe that the question of whether Miller represents a procedural watershed rule requiring retroactive application has not yet been addressed in this Commonwealth.
Even though the Pennsylvania Supreme Court has not explicitly foreclosed the possibility that Miller is retroactive under the second Teague exception, Appellant nonetheless has failed to prove an exception to the PCRA time bar. Recently, our Court addressed the retroactively-applied constitutional right exception to the PCRA time bar, noting:
Subsection (iii) of Section 9545 [ (b)(1) ] has two requirements. First, it provides 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 provided in this section. Second, it provides that the right “has been held” by “that court” to apply retroactively. Thus, a petitioner must prove that there is a “new” constitutional right and that the right “has been held” by that court to apply retroactively. The language “has been held” is in the past tense. These words mean that the action has already occurred, i.e., “that court” has already held the new constitutional right to be retroactive to cases on collateral review. By employing the past tense in writing this provision, the legislature clearly intended that the right was already recognized at the time the petition was filed.
Commonwealth v. Seskey,
While I believe the question of whether the constitutional right recognized in Miller represents a “watershed rule” is unde
.