*1 Pennsylvania, COMMONWEALTH of
Appellee REED, Appellant.
Michael
Superior Pennsylvania.
Submitted Aug. 2014.
Filed Dec. *2 Reed, appellant, pro
Miсhael se. Carr, Keaton Assistant District Attor- Commonwealth, ney, Pittsburgh, appel- for lee. GANTMAN, P.J.,
BEFORE: BENDER, P.J.E., PLATT, and J.* PLATT, OPINION BY J.: Reed, Michael Appellant, appeals from the dismissal of his fourth for re pursuant lief to the Post Conviction Relief (PCRA), §§ Act 42 Pa.C.S.A. 9541-9546. has filed a to withdraw Counsel representation pursuant from further Turner, (1988) A.2d 927 Commonwealth Finley, Pa.Super. (en banc). The chief
our review is whether the United States in Miller v. Ala Supreme Court’s decision * Judge assigned Superior Retired Senior Court.
—boma, degree 183 first and robbery, on June (2012) appliеs retroactively to The court sentenced him to life imprison- States Su Appellant.1 Neither United April ment on 1992. This Court af- preme nor our judgment sentence, firmed the and our applies retroactively. held that Miller Ac Supreme Court denied ap- allowance of *3 cordingly, Appellant’s we conclude that peal. See id. petition untimely, PCRA with no statu Appellant filed the instant fourth tory exception proven. to the time-bar 10, 2012, petition July PCRA on and the substantially complied has Counsel with appointed counsel, PCRA court current to procedures request withdrawal. who filed petition.3 an amended Therefore, grant counsel’s petition to PCRA court filed notice of its intent to affirm
withdraw and Ap dismissal of (See Order, 9/05/12); dismiss. see also pellant’s petition. PCRA 907(1). Appellant Pa.R.Crim.P. filed a underlying dispute. facts are not in counseled response. The court dismissed Reed, See v. Pa.Super. Commonwealth petition 9, 2013, on December pat as (en 872, (1994) banc), ently frivolous.4 Appellant timely aрpeal denied, appeal Pa. 27, 2014, ed. On June counsel filed an (1995). 18, 1990, April On Appellant and a “Application for Leave to Withdraw as co-defendant, Williams, Jackie Lee both Counsel under Finley Turner and along old,2 years then seventeen hailed cab in a supporting Appellant brief.5 Pittsburgh. they When arrived at their not response filed a petition to the destination, driver, they informed the cab withdraw. Law, they Thomas did not have mon Counsel’s brief presents questions three ey pay argument, fare. After an for our review: and Mr. Law’s threat to go police, to the [cjourt Appellant fatally shot and robbed him. A 1. Whether the PCRA erred jury Appellant convicted of murder in of the denial [of] PCRA relief on the basis 1. In Miller the United readily apparent 4. For reasons not from the mandatory record, concluded that life-without-parole the PCRA essentially court also filed juveniles Eighth sentences for violate the identical orders of in this case on dismissal Amendment. See id. at 2464. 17, 2013, January December 2014. Appellant, 2. born on June acknowl- 5. Counsel submitted a brief in the nature of edges day that on the of the crime he was support petition an Anders brief in months, years, seventeen nine two weeks and (See Support Applica withdraw. "Brief in (See days Response five old. to Notice of tion for Leave to Withdraw as Counsel under Dismiss, 9/17/12, Intention to at unnumbered 6/27/14); Finley,” Turner and see also Anders 1, ¶¶ 1-2). words, page Appellant In other California, v. 386 U.S. days was two months and twelve short of his (1967). Where counsel seeks to еighteenth birthday. denial,of appeal withdraw on from the relief, Tumer/Finley "no-merit letter” is the 3. We note that filed his appropriate filing. an "[b]ecause days within fifteen of the United States Su- provides greater Miller, protection Anders brief to a preme Court's in decision filed on defendant, Therefore, may accept an Anders June 2012. his com- Turner/Finley brief in lieu of a plied letter.” Com sixty day with the PCRA rule. See 42 9545(b)(2) Widgins, § monwealth v. ("Any petition A.3d 817 n. 2 Pa.C.S.A. invok- ing (1) exception provided (Pa.Super.2011) (citing paragraph an Fusselman, (Pa.Su days shall be filed within 60 of the date the 1111 n. 3 claim presented.”). per.2004)). could have been proceeding independent was untime- date an that the PCRA review of the rec- ord ly? competent counsel before a or appellate PCRA court court can au- the United States Su- Whether attorney’s thorize an withdrawal. The that the rule in preme Court held Miller necessary independent requires review Alabama, by applying said rule counsel to file a “no-merit” letter dеtail- Hobbs, companion case of Jackson ing the nature and extent of his review retroactively to cases where di- applies and list each the petitioner issue wishes rect prior review had concluded examined, why to have explaining those announcement of said rule in Miller v. court, issues are meritless. The PCRA Alabama? or an appellate court if the no-merit 8. Whether Commonwealth v. Batts it, Turner, letter is filed before see su- 115], recog- [620 *4 pra, then must conduct indepen- its own nized a rule of constitutional law under dent agree evaluation of the record and Pennsylvania Constitution similar to petition with counsel that the is without that in Miller v. Alabama and does the merit.... rule in apply retroactively Batts to cases imposed [T]his Court additional re- [has] where direct prior review concluded quirements on counsel that closely track the announcement of said rule in Batts? the procedure withdrawing on direct ” (“Anders 3). Brief, at appeal.... required is [C]ounsel to con- Our standard and scope of review are temporaneously serve upon his [or her] well-settled. client his [or no-merit letter and her] We review an order dismissing peti- application to along withdraw with a tion light under the PCRA in the most statement that if granted the court coun- favorable to the prevailing party at the request, sel’s withdrawal the client may PCRA level. This review is limited to proceed pro privately se or with a re- the findings of the PCRA court and the attorney.... tained evidence of record. We -willnot disturb Rykard, ruling a PCRA court’s if it supported denied, 1183-84 (Pa.Super.2012), appeal legal evidence of record and is free of (2013) (some may error. This Court affirm a PCRA omitted). citations and footnote any grounds court’s decision on if the pursuant time limitations to ... [T]he record supports grant great it. We def- jurisdictional. are [Jurisdic- erence to the factual findings of the mandatory tional limitations are time] PCRA court and will not disturb those thus, and interpreted literally; a court findings they support unless have nо authority has no filing periods to extend the record. we afford no such except as the statute permits. If the legal deference to its conclusions. Fur- petition is determined to untimely, petitioner ques- raises ther/where and exception pled no has been law, tions of our standard of review is de proven, must be dismissed scope novo and our of review is plenary. ' without a hearing Pennsylvania because jurisdiction
courts are without to consid- er the merits petition. Turner/Finley deсisions provide Jackson, the manner for postconviction Commonwealth v.
counsel
denied,
to withdraw from representa
(Pa.Super.2011),
519
appeal
tion.
holdings
(citations,
of those cases man- Pa.
quo-
omit-
punctuation
Consequently,
tation
and other
the only
marks
substantive
ted).
issue for our review is
Appellant
whether
can claim
statutory
an
Here,
review of the
confirms
our
record
grounds
PCRA time-bar on the
that Mil
complied
has substantially
that counsel
(or
ler,
Batts,
supra,
supra)
ap
can be
to with-
procedural requirements
with the
retroactively
plied
to him.7
“Anders
{See
Accordingly, we will
proceed
draw.6
3).
Brief, at
questions
our
review of the
independent
presented
correctly
to determine if counsel
Appellant cannot do so. The United
that
the issues
had no
concluded
raised
Supreme
has not
ruled
merit.
Furthermore,
Miller is retroactive.
in Commonwealth v. Cun
allow
Our
Court denied
(2013),
ningham,
A.3d 1
April
ance
appeal
of
case on
—
denied,
cert.
Reed, supra,
1995. See
When a is otherwise principles under enunciated by the Unites to obtain PCRA relief under the Lane, Teague States Court in v. newly recognizеd right, for a constitutional 1060, 288, 109 489 U.S. S.Ct. 103 L.Ed.2d petitioner a has the plead burden to (1989), pertinent 334 part, as follows: prove right “the a that asserted is consti- Lane, right by that the recognized Briefly, Teague (plu- tutional was v. [supra] Supreme Court of the or the rality), general United States delineated a rule non- of of Pennsylvania retroactivity procedural, after the for new consti- Court, provided in period by time this section and tutional rules announced by LAFAVE, apply has held that been court WAYNE R. JEROLD H. IS- retroactivеly.” RAEL, 42 Pa.C.S.A. NANCY J. S. KING & ORIN 9545(b)(l)(iii) added). (3d 2.11(e) KERR, § (emphasis § 1 CRIM. PROC. Specifically, Appellant 6. counsel a to with- filed of her brief. She informed of his 27, se, contempo- counsel, draw on June private Counsel right proceed pro to retain raneously supporting filed her brief. She at- brief, supplemental file a or his discontinue copy Appellant tached of the a letter sent to appeal. response. Appellant has not filed a notifying him of her he was conclusion that to relief not entitled under the PCRA.Cоunsel presents question only general 7. The a first " enclosed her notice letter Brief, 3). (See at claim of error. "Anders copy copy of her to withdraw and
ed.2012) (relating
Teague
disregards
special
has been
claim
status of a
establishing
as
a “law at the
directly
described
case
reviewed
the United
subject to two narrow
principle),
time”
ignoring
as well as
exceptions. This construct was solidi
specific analysis
application
the case
majority
Penry
decision in
fied
Teague principles requires.
Fur-
302, 329-30,
Lynaugh, 492
U.S.
thermore, Cunningham expressly rejected
(1989).
2934,
S.Ct.
Horn v. 536 U.S. 271 n. holding Court’s in Com- 122 S.Ct. 153 L.Ed.2d .... Batts, monwealth v. Summerlin, recently, More Schriro (2013), a direct appeal, should 542 U.S. apply analogously to appeals collateral as High ap (See 3). Brief, well. “Anders” at pears This merged to have the first argument has been exceptiоn with the made before. See principle that new 18, (Baer, J., generally Cunningham, supra substantive rules at apply retro dis- actively. senting). See id. at 351-52 & n. as dissent itself Drinan, generally indicates, S.Ct. 2519. See proposal Gra to extend the Ground, ham on the 87 WASH. L.REV. holding generally in Miller to collateral at (explaining that “the Court has appeals yet majority to command a *6 terminology shifted its somewhat and contrary, of our To the Court. has described new rules as ‘substantive’ jurisprudence our traditionally recog- has they when the range of conduct ] ‘alterf nized a properly distinction between or the persons class of the law preserved presented raised and issues in punishes,’ rather describing than them appeal, cases on direct and cases on col- as falling within the first of the non- two lateral review where a determination of retroactivity exceptions).” guilt already been made. In collat- (footnotes Cunningham, swpra at 4-5 and' appeals, “strong eral interest in final- omittеd; punctuation some emphasis in ity in orderly justice inherent an criminal original).' system” traditionally affords additional weight to the prospective application of
Here, question because the first pres- newly announced constitutional principles, only generalized error, ents claim of as within Teague analysis. the context of noted, previously review it in conjunc- we Cunningham, supra at 9. tion with the two remaining questions. second raises the issue of Moreover, retroactivity these аr
whether the Miller
application
Court’s
of
guments ignore
general
rule on retro
holding
its
to the companion case of Jack-
application adopted Teague:
son v.
active
in
compels
Hobbs
“Un
applica-
retroactive
(See
Brief,
tion Miller
they
of
here.
“Anders
less
fall within an
to the
3);
Miller,
rule,
at
supra
see also
at 2475. This
general
new constitutional rules of
applicable
will not be
“This
procedure
by
criminal
Court is bound
exist
have
ing precedent
those cases which
become final before
under the doctrine of stare
Teague,
the new rules are announced.”
decisis and continues to
controlling
follow
310,
supra
(adopting
at
Miller merit relief under current control- represents a watershed rule' has been ad- Furthermore, ling authority. indepen- on dressed Court. See Cun- review, dent we conclude there are no ningham, at supra Noting arguments which merit would PCRA relief United States Court has limited Appellant. exception, the sec- watershed/bedrock Teague exception, ond ‘sweeping1 “to recognize
We
that different courts
changes on the order of Gideon v. Wain-
have
substantially differing
reached
con
wright,
372 U.S.
83 S.Ct.
clusions on the
application
retroactive
(1963);”
L.Ed.2d
Cunningham
Miller.8
this does not alter our
Court concluded that “modifications of a
analysis of the state of the law in the
nature,
less broadscale
they may
while
Pennsylvania.
Commonwealth of
very
simply
important,
require
do not
At the outset we observe that
it is
application,
retroactive
under
sec-
well-settled that
Court is not bound
exception.”
ond
Cunningham,
courts,
by the decisions of federal
other
added).
supra
(еmphasis
at 10
than
the United States
or the decisions of other states’ courts.
Court cited Whorton
Fellin,
See Track v.
Bockting,
549 U.S.
127 S.Ct.
(Pa.Super.200S), appeal denied sub nom.
1173,
Our
differs from that of
tive pursuant
to the first
exception.
court.
may
affirm
Ultimately, the Court concluded that “the
any
PCRA court’s order on
basis. See
Teague exception
first
apply
does not
v. Doty,
Commonwealth
rule,” because,
the Miller
“by its own
(Pa.Super.2012).
terms,
holding
the Miller
‘does not cate-
Order affirmed. Petition to withdraw
gorically bar a penalty for a class of of-
granted.
(in-
fenders.’ Cunningham,
(MSA), Metropolitan Life Insurance Company, Corporation, Nosrock Ow- (a/k/a ens-Illinois, Inc., Pep Boys Manny, Jack), Moe and Union Carbide Corp., Universal Refractories Division Corporation. of Thiem NELSON, Darlene Appeal Executrix of the of Crane Co. Estate of James Nelson Nelson, Darlene Executrix of the Estate of James Nelson SUPPLY,
AIRCO WELDERS Allied (a/k/a Signal Corp.), Allied American Standard, (a/ Chesterton, Inc., A.W. Supply, Signal Ba Airco Welders Allied (f/ sic, Inc., Bayer CropScience, Inc., Corp.), Standard, Allied American k/a USA, Inc.), CropScience, Chesterton, Inc., Aventis Basic, Inc., A.W. k/a (f/k/a Products, Inc., Poulenc, Bayer Inc., Achem CropScience, Rhone Aventis Benjamin Compa CropScience, USA, Inc.), AG Co. and Foster Achem Prod (a/k/a ny, Co., Koopers ucts, Inc., Poulenc, Beazer East Rhone AG and Co. Kooper), Bird, Inc., Benjamin Inc. and Company, BOC Foster Beazer (a/k/a Group, Borg-Warner Corp., Co., Koopers Brand In East Inc. and (f/k/a sulations, Inc., Corporation Kooper), Bird, Inc., CBS Group, BOC Inc., Viacom, Westinghouse Borg-Warner and Corp., Elec Brand Insula Corporation), (f/k/a Corpo tions, Inc., tric Corporation Certainteed CBS Vi (a/k/a ration, Chrysler Corp. AMC, acom, Westinghouse Inc. and Electric Northwest Corporation), Auto Rental Co. and Corpora Certainteed Chrysler (a/k/a Co.), tion, Chrysler AMC, Service Contract Corp. Crane Co., Demming Division, Crane Pack Northwest Auto Rental Co. and ing, Welding Cutting Chrysler ESAB Co.), and Service Contract Crane Equipment, Co., Co., Division, EJ Lavino Demming & Eutectic Pack Crane Corp., Engineering, ing, Ferro Welding Cutting Ford Motor ESAB Co., Foseco, Inc., Equipment, Co., Foster Wheeler Cor EJ Lavino & Eutectic poration, Garlock, Inc., Corp., Engineering, General Elec Ferro Ford Motor Company, Co., Foseco, tric Corp., Inc., General Motors Foster Wheeler Cor-
