J-S65014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JAMIL THOMAS,

                        Appellant                   No. 2528 EDA 2014


            Appeal from the PCRA Order Entered July 21, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-1003182-2003


BEFORE: BENDER, P.J.E., SHOGAN, J., and JENKINS, J.

MEMORANDUM BY BENDER, P.J.E.:                  FILED NOVEMBER 12, 2015

     Appellant, Jamil Thomas, appeals from the July 21, 2014 order

denying his petition filed under the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-9546. We affirm.

     A detailed recitation of the facts of Appellant’s case is not necessary to

assess the single issue he presents on appeal.        However, we note the

following procedural history of his case.   In December of 2004, Appellant

was convicted by a jury of first-degree murder, and other related offenses,

stemming from the shooting death of Darnell Clark, which occurred when

Appellant was 15 years old. For his murder conviction, Appellant received a

mandatory sentence of life imprisonment, without the possibility of parole.

Appellant filed a timely direct appeal, and this Court affirmed his judgment

of sentence after concluding that he had waived all claims by not filing a
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timely Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal.    Commonwealth v. Thomas, No. 880 EDA 2005, unpublished

memorandum at 3-4 (Pa. Super. filed February 12, 2007).            On July 17,

2008, our Supreme Court denied Appellant’s petition for allowance of appeal.

See Commonwealth v. Thomas, 954 A.2d 577 (Pa. 2008).

       Thereafter, Appellant filed a timely PCRA petition          seeking the

reinstatement of his direct appeal rights.       That petition was granted, and

Appellant filed a nunc pro tunc direct appeal with this Court on December

28, 2009.       On September 28, 2010, this Court once again affirmed

Appellant’s judgment of sentence, after which our Supreme Court denied his

subsequent petition for allowance of appeal. Commonwealth v. Thomas,

13 A.3d 996 (Pa. Super. 2010) (unpublished memorandum), appeal denied,

24 A.3d 864 (Pa. 2011).

       On January 3, 2012, Appellant filed a timely, pro se PCRA petition

underlying the present appeal. Counsel was appointed and filed an amended

petition on Appellant’s behalf on April 1, 2014.1            Therein, Appellant

maintained that his mandatory term of life imprisonment, imposed for an

offense he committed as a juvenile, is illegal pursuant to the Supreme Court


____________________________________________


1
  The record indicates that the delay in counsel’s filing of Appellant’s
amended petition occurred because counsel initially filed a petition to
withdraw from representing Appellant. However, after Appellant responded
to the petition to withdraw, counsel changed course and filed an amended
petition on Appellant’s behalf.



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of the United States’ decision in Miller v. Alabama, 132 S.Ct. 2455 (2012)

(holding that mandatory life imprisonment without parole for those who are

under 18 at the time of their crimes violates the Eighth Amendment’s

prohibition on cruel and unusual punishment).         See Memo in Support of

Amended Petition, 4/1/14, at 4 (unnumbered).               However, Appellant

acknowledged    that   our   Supreme   Court   held   in   Commonwealth      v.

Cunningham, 81 A.3d 1 (Pa. 2013), that the rule announced in Miller does

not apply retroactively to cases on collateral review.         Id.   Appellant

conceded that the PCRA court could not afford him relief in light of

Cunningham, but stated that he was nevertheless asserting a challenge to

his sentence premised on Miller in order “to preserve the issue pending

further decisions of our state and/or federal courts.” Id.

      On June 23, 2014, the PCRA court issued a Pa.R.Crim.P. 907 notice of

its intent to dismiss Appellant’s petition without a hearing. Appellant filed a

pro se response to that notice, but on July 21, 2014, the court issued an

order dismissing his petition.   In an opinion accompanying that order, the

PCRA court concluded that pursuant to Cunningham, Appellant was not

entitled to retroactive application of Miller on collateral review. See PCRA

Court Opinion, 7/21/14, at 2.

      Appellant filed a timely notice of appeal. The PCRA court did not direct

him to file a Rule 1925(b) concise statement of errors complained of on

appeal.   Herein, he presents one question for our review: “Did the PCRA

court err when it denied [Appellant] relief on his amended post[-]conviction

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petition where [Appellant] was seeking a new sentencing hearing as he was

a juvenile who had been given a life sentence?          Appellant’s Brief at 3

(unnecessary capitalization omitted).

      Our standard of review regarding an order denying post conviction

relief under the PCRA is whether the determination of the court is supported

by the evidence of record and is free of legal error.       Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). This Court grants great deference

to the findings of the PCRA court, and we will not disturb those findings

merely    because    the    record    could   support   a   contrary   holding.

Commonwealth v. Touw, 781 A.2d 1250, 1252 (Pa. Super. 2001).               The

PCRA court’s findings will not be disturbed unless there is no support for the

findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,

1166 (Pa. Super. 2001).

      In Appellant’s brief, he reiterates that his sentence is unconstitutional

under Miller, but again states that Cunningham precludes him from

obtaining relief on collateral review. See Appellant’s Brief at 8-9. Appellant

also reiterates that he is presenting this challenge to his sentence in order

“to preserve the issue….” Id. at 8.

      We conclude that the PCRA court did not err in determining that,

pursuant to Cunningham, the rule expressed in Miller does not apply

retroactively to Appellant’s case, where his judgment of sentence became

final prior to Miller’s issuance, and he offers no novel arguments regarding

Miller’s retroactivity.    See Cunningham, 81 A.3d at 11 (“[N]othing in

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Appellant’s arguments persuades us that Miller’s proscription 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 at the time of

Miller’s announcement.”).2

       However, we point out that the Supreme Court of the United States

recently granted a petition for writ of certiorari in Montgomery v. State of

Louisiana, 135 S.Ct. 1546 (2015), in which the Court may decide the issue

of whether Miller adopted a new substantive rule that applies retroactively

____________________________________________


2
  Notably, the Cunningham Court did not decide whether Miller’s holding
qualifies as a watershed rule of criminal procedure, satisfying the second
exception to the general rule of non-retroactivity delineated in Teague v.
Lane, 489 U.S. 288 (1989) (plurality). See Cunningham, 81 A.3d at 10
(declining to assess the second Teague exception because the appellant did
“not develop[] his argument in such terms”).          Additionally, both the
Cunningham Majority, as well as Justice Castille in his concurring opinion,
acknowledged that the Court did not address whether there is a basis under
Pennsylvania constitutional law to afford a broader retroactive application to
Miller.    See Cunningham, 81 A.3d at 9, 13, 17-18 (Castille, J.,
concurring). Indeed, our Court has recognized that retroactivity arguments
premised upon state law – raised in a timely PCRA petition - are not
foreclosed by Cunningham and could be considered by this Court. See
Commonwealth v. Seskey, 86 A.3d 237, 243 (Pa. Super. 2014) (noting
that while the appellant’s attempts to circumvent Cunningham based upon
Pennsylvania state constitutional law “someday may require consideration by
our courts,” we did not have jurisdiction to examine those claims because
they were raised in an untimely PCRA petition). Here, however, Appellant
does not raise any of the above-mentioned arguments on appeal, and he
also did not assert such arguments before the PCRA court. Therefore,
Cunningham forecloses Appellant from obtaining retroactive application of
Miller.



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on collateral review. If the Supreme Court ultimately holds in Montgomery

that Miller does apply retroactively, Appellant may seek relief by filing a

PCRA petition within 60 days of Montgomery’s issuance, asserting the

applicability of the PCRA timeliness exception set forth in 42 Pa.C.S. §

9545(b)(1)(iii) (excepting a PCRA petition from the one-year timeliness

requirement where the petitioner proves 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”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2015




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