J-S67008-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                    Appellee              :
                                          :
            v.                            :
                                          :
JAMES H. COBBS,                           :
                                          :
                    Appellant             : No. 13 WDA 2014

                 Appeal from the PCRA Order December 23, 2013,
                    Court of Common Pleas, Allegheny County,
                 Criminal Division at No. CP-02-CR-0008549-1970

BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                     FILED NOVEMBER 17, 2014

      Appellant, James H. Cobbs (“Cobbs”), appeals from the order denying

his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§

9541-46 (the “PCRA”). Also before this Court is appointed counsel’s motion

to withdraw as counsel and an accompanying brief filed pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).        For the following

reasons, we affirm the PCRA court’s order denying the petition and grant

counsel’s request to withdraw.

      In its written opinion, the PCRA court provided the following concise

summary of the relevant procedural history:

            This matter arises out of a pro se PCRA petition filed
            by [Cobbs] on August 28, 2012. [Cobbs] alleged
            that he was currently serving a mandatory sentence
            of life without the possibility of parole for his



*Former Justice specially assigned to the Superior Court.
J-S67008-14


             conviction of first-degree murder on July 16, 1971.
             [Cobbs] further alleged that he was under the age of
             18 at the time of the offense. In his petition [Cobbs]
             alleges   that    his   mandatory     sentence    was
                                            th
             unconstitutional under the 8 Amendment of the
             United States Constitution based on the United
             States Supreme Court’s decision in Miller v.
             Alabama, 132 S.Ct. 2455 (2012) which was decided
             on June 25, 2012.

             On September 6, 2012 counsel was appointed to
             represent [Cobbs].     On September 19, 2012 a
             Motion to Stay the PCRA proceedings was filed
             pending the disposition of appeals pending before
             the Pennsylvania Supreme Court in Commonwealth
             v. Batts, 66 A.3d 286 (Pa. 2013) and
             Commonwealth v. Cunningham, 81 A.3d 1 (Pa.
             2013).    On September 25, 2012 an order was
             entered staying the proceedings pending the
             disposition of Batts and Cunningham. On March
             26, 2013, the Pennsylvania Supreme Court decided
             Batts. On October 30, 2013, the Court decided
             Cunningham. On November 20, 2013 an order was
             entered placing [Cobbs] on notice of the [PCRA
             court’s] intent to dismiss his petition without a
             hearing based on the Supreme Court’s decision in
             Cunningham which held that the ruling in Miller
             was not retroactive. On December 9, 2013, [Cobbs]
             filed a response to the Notice of Intent to Dismiss
             Order[1] and on December 23, 2013 an Order was
             entered dismissing his PCRA Petition. On December
             30, 2013, [Cobbs] filed the instant appeal.

Trial Court Opinion, 7/10/2014, at 2-3 (footnotes omitted). On August 13,

2014, appointed counsel filed an Application for Leave to Withdraw as

counsel under Turner and Finley, attaching a “no merit” appellate brief and




1
    Cobbs also included an amended PCRA petition with this filing.


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a letter to Cobbs advising him, inter alia, of her intention to withdraw from

representation.

     Before considering the issues appointed counsel asserts Cobbs wants

to raise on appeal, we first must consider whether appointed counsel has

complied with the requirements for counsel to withdraw pursuant to Turner

and Finley. We previously explained this procedure as follows.

           Turner/Finley counsel must review the case
           zealously. Turner/Finley counsel must then submit
           a “no-merit” letter to the trial court, or brief on
           appeal to this Court, detailing the nature and extent
           of counsel’s diligent review of the case, listing the
           issues which the petitioner wants to have reviewed,
           explaining why and how those issues lack merit, and
           requesting permission to withdraw.

           Counsel must also send to the petitioner: (1) a copy
           of the “no-merit” letter/brief; (2) a copy of counsel’s
           petition to withdraw; and (3) a statement advising
           petitioner of the right to proceed pro se or by new
           counsel.

           If counsel fails to satisfy the foregoing technical
           prerequisites of Turner/Finley, the court will not
           reach the merits of the underlying claims but, rather,
           will merely deny counsel’s request to withdraw.
           Upon doing so, the court will then take appropriate
           steps, such as directing counsel to file a proper
           Turner/Finley request or an advocate’s brief.

           However, where counsel submits a petition and no-
           merit letter that do satisfy the technical demands of
           Turner/Finley, the court - trial court or this Court -
           must then conduct its own review of the merits of
           the case. If the court agrees with counsel that the
           claims are without merit, the court will permit
           counsel to withdraw and deny relief. By contrast, if
           the claims appear to have merit, the court will deny



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              counsel’s request and grant relief, or at least instruct
              counsel to file an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007).

      Instantly, appointed counsel’s Application for Leave to Withdraw as

Counsel contains her representations that she has examined the record, case

law, relevant statutes, and correspondence from Cobbs, and that she has

advised Cobbs in a letter of her legal conclusion that his issues lack any

merit.     Application, 8/13/2014, at ¶¶ 13-14.       Appointed counsel mailed

copies of the Application for Leave to Withdraw as Counsel and the “no

merit” brief filed with this Court as attachments to her letter to Cobbs, in

which she advised him of his right to proceed pro se or through privately-

retained counsel.     For these reasons, we conclude that appointed counsel

has substantially complied with the mandates of Turner and Finley.

      We thus proceed with our own review of the merits of Cobbs’ claims on

appeal, which are set forth in the “no merit” brief as follows:

      1.      Whether the PCRA court erred in denying PCRA relief
              on the basis that 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?

      3.      Whether Commonwealth v. Batts, --- Pa. ---, 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



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                Batts apply retroactively to cases where direct
                review concluded prior to the announcement of said
                rule in Batts?

Brief for Appellant at 3.     When we review the propriety of a PCRA court’s

order, we are limited to determining whether the court’s findings are

supported by the record and whether the order in question is free of legal

error.    Commonwealth v. Grant, 992 A.2d 152, 156 (Pa. Super. 2010).

This Court will not disturb the PCRA court’s findings if there is any support

for the findings in the certified record. Id.

         This   Court   recently   addressed    Cobbs’    first    two   issues   in

Commonwealth v. Seskey, 86 A.3d 237 (Pa. Super. 2014), in which we

stated as follows:

                [T]he facial untimeliness of Appellant's petition
                renders this Court (indeed, any court) without
                jurisdiction to review the substantive claims that
                Appellant raises … unless one of the three exceptions
                to the PCRA's time-bar applies. The only potentially
                applicable exception is subsection 9545(b)(1)(iii),
                the newly-recognized, and retroactively-applied,
                constitutional right exception predicated upon the
                Supreme Court's decision in Miller.

                     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



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                  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. Copenhefer, 596 Pa. 104, 941
            A.2d 646, 649–50 (2007) (quoting Commonwealth
            v. Abdul–Salaam, 571 Pa. 219, 812 A.2d 497, 501
            (2002)).

            Recently, in Cunningham, our Supreme Court held
            that the constitutional right announced by the United
            States Supreme Court in Miller does not apply
            retroactively.    81 A.3d at 10.          Consequently,
            Appellant cannot rely upon Miller or subsection
            9545(b)(iii) to establish jurisdiction over his untimely
            PCRA petition in any Pennsylvania court. Hence, we
            lack jurisdiction to review the merits of Appellant's
            issues

Id. at 242-43.

      Cobbs attempts to circumvent the effect the ruling in Cunningham

has upon our jurisdiction by arguing that the companion case to Miller

(Jackson v. Hobbs) should have led to a different result in Cunningham.

This argument is likewise unavailing. As this Court made clear in Seskey,

based upon our Supreme Court’s decision in Cunningham, which this Court

is bound to follow, along with the statutory time limits for filing petitions for




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relief under the PCRA, we lack any jurisdiction to consider other substantive

arguments on their merits:

              While these arguments someday may require
              consideration by our courts, today cannot be that
              day.     Before a court may address Appellant's
              arguments, or similar contentions, that court must
              have jurisdiction.       We cannot manufacture
              jurisdiction based upon the substantive claims raised
              by the parties. Presently, we are confined by the
              express terms of subsection 9545(b)(1)(iii) and our
              Supreme      Court's  decision   in   Cunningham.
              Combined, those two elements require us to
              conclude that we lack jurisdiction. No substantive
              claim can overcome this conclusion.

Id. at 243.

     With respect to Cobbs’ third issue, in Batts our Supreme Court held

that the appropriate remedy on direct appeal for a Miller-type constitutional

violation is to remand the case to the trial court for re-sentencing in

accordance with the dictates of Miller. Batts, 66 A.3d at 293-95. Batts

did not, however, address the retroactivity of the Miller decision in

connection with subsection 9545(b)(1)(iii) of the PCRA.          As indicated

hereinabove, our Supreme Court decided that issue in Cunningham.

Moreover, and more importantly, Batts did not create or identify any new

constitutional right that would provide Cobbs with a basis for filing a PCRA

claim beyond the one-year time bar based pursuant to the exception in

subsection 9545(b)(1)(iii).      As such, Batts provides Cobbs with no




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meritorious argument that his PCRA petition was timely or that this Court

has any jurisdiction to consider his substantive claims.

      For these reasons, we agree with appointed counsel that all of Cobbs’

issues are without merit. We therefore grant appointed counsel’s petition to

withdraw and deny any relief to Cobbs.

      Order affirmed. Motion to withdraw granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/17/2014




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