J-S64005-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

JAMES MILLER

                          Appellant                  No. 31 WDA 2014


               Appeal from the PCRA Order December 4, 2013
             In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0001854-1981


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                       FILED OCTOBER 22, 2014

      James Miller appeals from the trial court’s order denying his third

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.

§§ 9541-9546. Miller was found guilty of second-degree murder and related

charges in August 1981; he was a juvenile at the time he committed the

crimes. On February 5, 1982, Miller was sentenced to life in prison without

the possibility of parole.

      On appeal, Miller presents the following issues for our review:

      (1)   Whether the PCRA Court violated Rule 904(F) of the
            Pennsylvania Rules of Criminal Procedure in ordering that
            appointed counsel be dismissed from the case (or not be
            paid) after counsel had been appointed to represent
            Appellant.

      (2)   Whether the PCRA Court violated Rule 905(A) of the
            Pennsylvania Rules of Criminal Procedure by failing to
            grant Appellant’s motion to amend the PCRA petition.
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       (3)    Whether the PCRA Court violated Appellant’s rights under
              the Eighth Amendment when Appellant continues to serve
              a life sentence without the possibility of parole which was
              imposed when Appellant was a juvenile.

       (4)    Whether Appellant’s rights under Article I, Section 13 of
              the Pennsylvania Constitution [were] violated and whether
              Pennsylvania law allows for retroactivity of Miller.

       (5)    Whether Appellant was entitled to habeas corpus relief
              when Appellant continues to serve a life sentence without
              the possibility of parole which was imposed when Appellant
              was a juvenile.

       On July 30, 2012, Miller filed the instant pro se PCRA petition asserting

that pursuant to the United States Supreme Court’s decision in Miller v.

Alabama, 132 S.Ct. 2455 (2012),1 his life sentence is illegal.         Counsel,

Thomas N. Farrell, Esquire, was appointed to represent Miller; counsel

subsequently filed an amended PCRA petition.       On July 29, 2013, Assistant

District Attorney Ronald Wabby filed a motion to stay the proceedings while

the issue of retroactive application of Miller was pending on appeal to our

Supreme Court. The court stayed the proceedings on August 28, 2013, and,

on October 30, 2013, the Pennsylvania Supreme Court determined that the

Miller holding2 does not apply retroactively to an inmate, serving a life
____________________________________________


1
  In Miller, the Supreme Court held that sentencing juveniles, under the age
of 18 at the time they committed a homicide offense, to mandatory life
imprisonment without the possibility of parole is a violation of the Eight
Amendment’s prohibition on cruel and unusual punishment.
2
  The Miller holding does not qualify as a section 9545(b) exception under
the PCRA. See Commonwealth v. Cintora, 69 A.3d 759 (Pa. Super. 2013)
(Supreme Court’s Miller decision does not qualify as timeliness exception
under sections 9545(b)(1)(ii) or (iii) of the PCRA).
(Footnote Continued Next Page)


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sentence without parole, who has exhausted his direct appeal rights and is

proceeding under the PCRA.             See Commonwealth v. Cunningham, 81

A.3d 1 (Pa. 2013), cert. denied, 134 S.Ct. 2724 (2014).3

      On November 6, 2013, Attorney Farrell filed a motion to stay the PCRA

proceedings     until     the    United     States   Supreme   Court   ruled   upon

Cunningham.            On November 14, 2013, the PCRA court issued a

Pa.R.Crim.P. 907 notice of its intent to dismiss the PCRA petition. Counsel

filed a timely response to the Rule 907 notice, again requesting a stay, or, in

the alternative, leave to file an amended PCRA petition to raise the claim

that Miller violates Article I, Section 13 of the Pennsylvania Constitution.

On December 4, 2013, the court issued its final order denying PCRA relief

based on the holding of Cunningham that Miller is not retroactive and,

thus, does not apply to cases on collateral review. The PCRA court’s order

also states “[t]he defendant is not entitled to have appointed counsel

represent him in this matter.” Trial Court Order, 12/4/13. Counsel filed a

timely notice of appeal on January 6, 2014.



                       _______________________
(Footnote Continued)


3
  The U.S. Supreme Court denied the petition for certiorari in Cunningham
on June 9, 2014. Moreover, most recently in Commonwealth v. Hancock,
230 WAL 2014 (filed Sept. 9, 2014) (Pa. 2014), our Supreme Court denied
allowance of appeal from our Court’s en banc decision, Commonwealth v.
Hancock, 178 WDA 2012 (filed May 6, 2014) (Pa. Super. 2014), which
effectively affirmed the Cunningham decision.




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        On appeal, Miller4 argues that, in contravention of Pa.R.Crim.P. 904,

the trial court improperly determined that he was not entitled to have

previously appointed PCRA counsel represent him any further in the matter.

Miller claims that not only is he entitled to counsel throughout any collateral

proceeding resulting from the denial of his PCRA petition, see Pa.R.Crim.P.

904(F)(2), but that without appointed counsel he has been denied the right

to have a counseled, amended petition pursuing equitable relief under the

PCRA, and may have also waived any future issue concerning potential state

constitutional violations as a result of the inequitable ruling in Miller.

        The Commonwealth agrees that the trial court acted in error by

ordering that Miller was no longer entitled to have PCRA counsel represent

him     in   the   matter.     See    Commonwealth’s    Brief,   at   10-14.   The

Commonwealth suggests that this error be rectified by a formalized court

order.

        Despite the fact that the trial court erroneously advised Miller that he

could no longer be represented on appeal, Attorney Farrell has filed Miller’s

instant notice of appeal from the denial of his PCRA petition, filed three

petitions for extension of time within which to file Miller’s appellate brief, and

has actually filed an appellate brief on behalf of Miller. Therefore, Miller is,

in effect, represented on appeal.          Because we find that he has not been


____________________________________________


4
    Despite court order, Attorney Farrell filed Appellant’s Brief on appeal.



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deprived of appellate representation, we will, therefore, address counsel’s

issues raised on his behalf.

       Miller next claims that by failing to grant him relief from serving a life

sentence without the possibility of parole, the PCRA court violated his

constitutional rights under the Eighth Amendment of the federal constitution

and Article I, Section 13 of the Pennsylvania Constitution.

       Recently, in Commonwealth v. Seskey,5 86 A.3d 237 (Pa. Super.

2014), appeal denied, No. 245 WAL 2014, 2014 Pa. LEXIS 2546 (filed Sept.

30, 2014) (Pa. 2014), a petitioner raised the same constitutional arguments

that Miller advances here.        Specifically, the petitioner alleged that his life

sentence constituted cruel and unusual punishment under both the Eighth

Amendment and Article I, Section 13 of the Pennsylvania Constitution. Id.

at 240.    The petitioner argued that the Miller holding should be applied

retroactively and his case should be remanded for resentencing. Id. During

the pendency of the Seskey case at the post-PCRA level, our Supreme Court

issued its    Cunningham decision, holding that Miller did not apply

retroactively. In light of Cunningham, the petitioner filed a motion seeking

leave to file a supplemental brief on appeal raising the aforementioned

issues. Id. at 241. Our Court granted his request. Id.


____________________________________________


5
 To avoid confusion, a prior decision from our Court spelled defendant’s last
name as Sesky. See Commonwealth v. Sesky, 676 A.2d 286 (Pa. Super.
1996).



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           Ultimately, on appeal, the          Seskey    panel determined that the

petitioner’s claims were non-waivable challenges to the legality of his

sentence, despite the fact that the claims were not included in his untimely

PCRA petition or his Pa.R.A.P. 1925(b) concise statement. Id. However, the

Court reiterated the time requirements under the PCRA, noting that such

restrictions are jurisdictional in nature and that waiver is a completely

separate matter from a court’s jurisdiction to review non-waivable claims.

Id.

           Notably, the Seskey Court pointed out that to invoke a timeliness

exception under the PCRA, specifically the new constitutional right exception

embodied in 42 Pa.C.S. § 9545(b)(1)(iii), two requirements must be met:

(1) 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; and (2) the right “has been held” by

“that       court”    to   apply    retroactively.    Id.    at   242-43.        See   also

Commonwealth v. Lawson, 90 A.3d 1, 6 (Pa. Super. 2014) (PCRA’s

section 9545(b)(1)(iii) exception applied only where “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    []    section    [9545]      and   has   been   held   by   that   court   to    apply

retroactively.”).          With regard to the “has been held” prong under section

9545(b)(1)(iii), our Court stated:




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      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 appeal. 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.

Seskey, 86 A.3d at 243 (emphasis added) (citing Commonwealth v.

Copenhefer, 941 A.2d 646, 649-50 (Pa. 2007) (quoting Commonwealth

v. Abdul—Salaam, 812 A.2d 497, 501 (Pa. 2002)).                    Because the

petitioner’s claims did not meet either of the requirements under section

9545(b)(1)(iii), Seskey’s untimely petition was properly dismissed for lack of

jurisdiction. Seskey, 86 A.3d at 243.

      Instantly, Miller’s PCRA petition, like the petition in Seskey, is facially

untimely. Under the PCRA, a petitioner must file his petition within one year

of the date that his judgment of sentence becomes final.          42 Pa.C.S. §

9545(b)(1). Here, Miller’s judgment of sentence became final, for purposes

of the PCRA, on August 11, 1984, when the time expired for him to file a

petition for writ of certiorari with the United States Supreme Court from the

denial of his petition for allowance of appeal from our Supreme Court. See

42 Pa.C.S. § 9545(b)(3); Sup. Ct. R. 13.

      Moreover, because Miller has not proven any exception to the PCRA’s

time bar provisions, including the newly recognized constitutional right

exception, the trial court properly dismissed Miller’s untimely petition for lack

of jurisdiction.   See Seskey, 86 A.3d at 243 (“We are confined by the

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express terms of subsection 9545(b)(1)(iii) and our Supreme Court’s

decision in Cunningham.            Combined, these two elements require us to

conclude that we lack jurisdiction. No substantive claim can overcome this

conclusion.”); see also Commonwealth v. Geer, 936 A.2d 1075 (Pa.

Super. 2007) (time limitations imposed by PCRA implicate trial court’s

jurisdiction and may not be altered or disregarded in order to address merits

of petition). Because at the time Miller filed his petition there was no newly-

recognized and retroactively-applied constitutional right, state or federal, he

cannot overcome the PCRA timing requirements. Seskey, supra.6

       Having determined that Miller’s state constitutional argument could not

afford him any post-conviction collateral relief, we find that the trial court

did not abuse its discretion in denying his request to file a second amended

PCRA petition raising such a meritless claim. See Pa.R.Crim.P.905(A) (“The

judge may grant leave to amend . . . a petition for post-conviction collateral

relief at any time.”) (emphasis added); see also Pa.R.Crim.P. 907 (when

judge satisfied no genuine issues concerning material fact and defendant not




____________________________________________


6
  We note, however, that if in the future the Pennsylvania Supreme Court
were to find that a newly-recognized and retroactively-applied constitutional
right does exist pursuant to Miller, Miller would not be foreclosed from filing
a petition pleading and proving such state constitutional claims under section
9545(b)(1)(iii), within the timing parameters set forth in 42 Pa.C.S.A. §
9545(b)(2).




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entitled to post-conviction collateral relief, no purpose served by any further

proceedings).7

       Moreover, Miller’s argument that he is entitled to relief under our

Commonwealth’s habeas corpus procedure, 42 Pa.C.S. §§ 6501-6505, is

made to no avail.        If counsel believes that a petition for writ of habeas

corpus is the appropriate vehicle by which to bring Miller’s claim, then he

must file such pleading. In that writ, Miller must clearly articulate how and

why the claim should be considered under the umbrella of habeas relief and

why the cases cited in his appellate brief which have extended relief to such

individuals under Megan’s Law, defendants with sentencing delays and

unfavorable prisoner conditions, apply in the Miller/Cunningham context.

See Seskey, 86 A.3d at 244.

       Order affirmed. Case remanded for trial court to amend PCRA order

consistent with the dictates of this decision.8 Jurisdiction relinquished.
____________________________________________


7
  Moreover, to the extent that counsel’s request to stay the proceedings
below for the possible grant of certiorari in Cunningham by the United
States Supreme Court, we note that since the filing of counsel’s stay request
in November 2013, the Supreme Court has denied review of that case. See
Cunningham v. Pennsylvania, 134 S.Ct. 2724 (filed June 9, 2014).
Therefore, this request is implicitly denied as moot.
8
   Our courts have consistently interpreted Rule 904(F)(2) and its
predecessors to extend the right of representation through the appeals
process. Commonwealth v. Jackson, 965 A.2d 280, 283 (Pa. Super.
2009). Because the PCRA court’s December 4, 2013, order advising Miller
that he “is not entitled to have appointed counsel represent him in the
matter,” contravenes Pa.R.Crim.P. 904(F)(2), we hereby remand the instant
case to the trial court for amendment of the order denying PCRA relief. As
(Footnote Continued Next Page)


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2014




                       _______________________
(Footnote Continued)

Rule 904(F)(2) states, “[w]hen counsel is appointed, the appointment of
counsel shall be effective throughout the post-conviction collateral
proceedings, including any appeal from disposition of the petition for post-
conviction collateral relief.”   See Pa.R.Crim.P. 904(F)(2); see also
Comment, Rule 904(F) (“Pursuant to paragraphs (F)(2) and (H)(2)(b),
appointed counsel retains his or her assignment until final judgment, which
includes all avenues of appeal through the Supreme Court of
Pennsylvania.”) (emphasis added).



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