J-S67012-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
CHRISTOPHER R. BAKER,                      :
                                           :
                   Appellant               : No. 242 WDA 2014

                Appeal from the PCRA Order January 23, 2014,
                    Court of Common Pleas, Potter County,
               Criminal Division at No. CP-53-MD-0000119-1992

BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED DECEMBER 11, 2015

       Christopher R. Baker (“Baker”) appeals from the January 23, 2014

order entered by the Court of Common Pleas, Potter County, dismissing his

petitions for relief pursuant to the Post-Conviction Relief Act (“PCRA”).1 For

the reasons set forth herein, we affirm.

       This case returns to this Court for the fourth time. The relevant facts

and procedural history are as follows.     At the age of sixteen, Baker was

arrested and charged with the May 6, 1992 killing of seventy-two-year-old

Dorothy Wilkinson. Baker was also charged with stealing Ms. Wilkinson’s car

after the murder. On March 11, 1993, following a non-jury trial, Baker was

convicted of first-degree murder and theft.2 The trial court sentenced Baker



1
    42 Pa.C.S.A. §§ 9541-46.

2
    18 Pa.C.S.A. §§ 2502(a), 3921(a).
*Former Justice specially assigned to the Superior Court.
J-S67012-14


on June 15, 1993, to the then- mandatory term of life imprisonment for

first-degree murder, and eleven to forty-eight months imprisonment for the

theft, which the trial court ordered to run concurrently with the life sentence.

This Court affirmed the judgment of sentence on August 29, 1994.

      Between December 16, 1996 and November 4, 2011, Baker filed three

pro se PCRA petitions. The trial court denied all three of Baker’s requests for

relief, which this Court affirmed.3   On May 21, 2012, Baker filed his fourth

pro se PCRA petition.

      On July 19, 2012, the PCRA court appointed Brent Petrosky, Esquire

(“Attorney Petrosky”) to represent Baker. Baker nevertheless filed a pro se

amended PCRA petition on July 23, 2012, wherein he asserted that the

decision in Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455 (2012), holding

that “the Eighth Amendment forbids a sentencing scheme that mandates life

in prison without possibility of parole for juvenile offenders,” created a new

constitutional right that should be applied retroactively to his case. Id. at

2469. The PCRA court continued the matter on October 16, 2012 pending




3
   The PCRA court granted Baker’s November 19, 1998 petition in part to
allow Baker to file a petition for allowance of appeal to the Pennsylvania
Supreme Court nunc pro tunc. Our Supreme Court denied Baker’s petition
for allowance of appeal on May 26, 1999. See Commonwealth v. Baker,
739 A.2d 163 (Pa. 1999).



                                      -2-
J-S67012-14


resolution by our Supreme Court of two cases regarding whether Miller

applied retroactively.4

      In the interim, on February 4, 2013, Baker filed a pro se petition for

writ of habeas corpus, requesting vacation of his sentence in light of the

Miller decision. Baker thereafter amended his petition on February 6, 2013.

On June 18, 2013, the PCRA court issued an order stating that Baker’s PCRA

petition and petition for writ of habeas corpus would be held in abeyance

until the Pennsylvania Supreme Court issued its decision in Commonwealth

v. Cunningham, which would address whether Miller applied retroactively

to defendants who sought relief through the PCRA.

      On October 30, 2013, the Pennsylvania Supreme Court rendered its

decision in Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), cert.

denied, 134 S.Ct. 2724 (U.S. 2014). Since the United States Supreme Court

in Miller did not specifically address whether its holding was retroactive, our

Supreme Court applied the retroactivity principles established by Teague v.

Lane, 489 U.S. 288 (1989) (plurality), to its analysis of the issue.        In

Teague, the United States Supreme Court delineated a general rule that

new procedural, constitutional rules were not retroactive. Teague, 489 U.S.

at 300-10.    As summarized by our Supreme Court in Cunningham, the

general rule of non-retroactivity is subject to two narrow exceptions, which


4
  See Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013); Commonwealth
v. Cunningham, 81 A.3d 1 (Pa. 2013). The Pennsylvania Supreme Court
heard argument on both cases on September 12, 2012.


                                     -3-
J-S67012-14


extend to (1) “rules prohibiting a certain category of punishment for a class

of defendants because of their status or offense,” and (2) “watershed rules

of criminal procedure implicating the fundamental fairness and accuracy of

the criminal proceeding.”    Cunningham, 81 A.3d at 4 (citing Penry v.

Lynaugh, 492 U.S. 302, 330 (1989); Horn v. Banks, 536 U.S. 266, 271

n.5 (2002)). The United States Supreme Court has since “appeared to have

merged the first Teague exception with the principle that new substantive

rules generally apply retroactively.” Cunningham, 81 A.3d at 5 (emphasis

in original) (citing Schriro v. Summerlin, 542 U.S. 348 (2004)).

      The Cunningham Court determined that the first exception to the

general rule of non-retroactivity for new procedural constitutional rules

pursuant to Teague did not apply to the holding in Miller. Cunningham,

81 A.3d at 10.     The Court did not address the second Teague exception

because the appellant did not develop an argument in support of its

applicability.   Id.   As a result, the Cunningham Court held that the

appellant in that case failed to present any argument to persuade the Court

“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 as of the time of Miller’s announcement.” Id. at 11.

      On November 18 and December 27, 2013, Baker filed two additional

pro se amended habeas petitions in which he presented several arguments



                                    -4-
J-S67012-14


in support of vacating his sentence pursuant to Miller. On January 3, 2013,

the PCRA court determined that Baker “failed to state a claim upon which

relief may be granted based on the Pennsylvania Supreme Court’s decision

rendered in [] Cunningham[,]” and entered an order pursuant to

Pa.R.Crim.P. 907, notifying Baker of its intention to dismiss his petitions

without a hearing.     See PCRA Court Order, 1/3/13, at 1. On January 23,

2014, the PCRA court dismissed Baker’s PCRA petition and his habeas

petition, the latter of which the PCRA court treated as an amended PCRA

petition. Baker filed a pro se notice of appeal to this Court on February 3,

2014.

        On March 12, 2014, Baker filed a motion for appointment of counsel.

This Court entered an order on March 31, 2014, stating:

                 As the trial court appointed [Attorney Petrosky] to
              represent [Baker] on July 19, 2012, and as there is
              no indication that [A]ttorney Petrosky was granted
              leave to withdraw, the prothonotary is directed to
              enter the appearance of [A]ttorney Petrosky in this
              Court. Should [A]ttorney Petrosky believe he is not
              representing [Baker], [A]ttorney Petrosky shall file a
              motion to withdraw in the lower court.

Order, 3/31/14.

        Between April 28, 2014 and April 15, 2015, Attorney Petrosky filed

three     deficient   attempts   to   withdraw      as     counsel    pursuant    to

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

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988), despite this

Court’s detailed instructions on how to comply with the Turner/Finley


                                      -5-
J-S67012-14


requirements. Thus, in a Memorandum dated May 13, 2015, we remanded

the case to the PCRA court for the appointment of new counsel.          See

Commonwealth v. Baker, 242 WDA 2014, at 5-6 (Pa. Super. May 13,

2015) (unpublished memorandum).

      On June 3, 2015, the PCRA court appointed Daniel A. Stefanides,

Esquire (“Attorney Stefanides”) to represent Baker.      On July 24, 2015,

Attorney Stefanides filed an advocate’s brief with this Court on behalf of

Baker, raising the following issue for our review:

            Did the [PCRA] court err in subsuming [Baker’s]
            petition for writ of habeas corpus into his PCRA
            petition and dismissing it without a hearing?

Baker’s Brief at 2.

      In reviewing this issue, we are mindful that “[w]here the petitioner

raises questions of law, our standard of review is de novo and our scope of

review is plenary.”   Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.

Super. 2014). “To the extent review of the PCRA court’s determinations is

implicated, an appellate court reviews the PCRA court’s findings of fact to

determine whether they are supported by the record, and reviews its

conclusions of law to determine whether they are free from legal error.”

Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010).

      It is well settled that the PCRA provides the “sole means of obtaining

collateral relief and encompasses all other common law and statutory

remedies … including habeas corpus[.]”      42 Pa.C.S.A. § 9542.   The PCRA



                                     -6-
J-S67012-14


“provides for an action by which persons convicted of crimes they did not

commit and persons serving illegal sentences may obtain collateral relief.”

Id. “Issues that are cognizable under the PCRA must be raised in a timely

PCRA petition and cannot be         raised in a habeas        corpus petition.”

Commonwealth      v.   Taylor,     65   A.3d   462,   466   (Pa.   Super.   2013)

(italicization omitted); see also 42 Pa.C.S.A. § 6503(b) (“[T]he writ of

habeas corpus shall not be available if a remedy may be had by post-

conviction hearing proceedings authorized by law.”).         If the issue is not

cognizable under the PCRA, however, a writ of habeas corpus continues to

exist as a separate remedy. Commonwealth v. Peterkin, 722 A.2d 638,

640 (Pa. 1998).

     On appeal, Baker contends that the claims raised in his habeas petition

are not cognizable under the PCRA and that therefore, the lower court

improperly treated his habeas petition as a PCRA petition and erred by

dismissing it without a hearing.    Baker’s Brief at 5-6.    Specifically, Baker

argues that he

           is not asserting his innocence of the crime he was
           convicted of nor is he arguing his sentence was
           illegal when it was originally imposed. Instead, [he]
           is arguing that the situation created by the
           Pennsylvania      Supreme       Court’s   ruling   in
           Cunningham where juvenile offenders sentenced to
           mandatory sentences of life without parole are
           treated different based solely on when their sentence
           was handed down is a cruel punishment forbidden by
           Article I[,] Section 13 of the Pennsylvania
           Constitution.



                                        -7-
J-S67012-14


Id. at 6.

      In so arguing, Baker relies upon then Chief Justice Castille’s concurring

opinion in Cunningham, wherein the Chief Justice expressed concern with

the resulting landscape in Pennsylvania following the majority’s decision,

stating:

                There is at least a colorable argument that there
            are now two classes of sentenced juvenile
            murderers, for whom the distinguishing factor has
            nothing to do with their crimes or their
            circumstances: those with final sentences who can
            never be assessed to determine if parole is
            appropriate, and those going forward who must be
            so assessed, based on Miller factors.

Cunningham, 81 A.3d at 15 (Castille, C.J., concurring).

      Chief Justice Castille discussed the challenges presented to those

prisoners whose sentences are final, finding that the PCRA offers no avenue

for relief. Id. at 13-14. The Chief Justice presented several suggestions for

resolving the “seeming inequity arising in the post-Miller landscape.” Id. at

14.   Most relevant to the case at bar, Chief Justice Castille asserted that

“there is at least some basis in law for an argument that the claim is

cognizable via a petition under Pennsylvania’s habeas corpus statute, found

at 42 Pa.C.S.[A.] § 6501 et seq.”      Id. at 18 (italiczation omitted).    In

support of his assertion, Chief Justice Castille cited to Commonwealth v.

Judge, 916 A.2d 511 (Pa. 2007), wherein our Supreme Court found that the

appellant’s challenge to “the continued vitality of his sentence” was not

cognizable by the PCRA and thus could be raised in a petition for writ of


                                     -8-
J-S67012-14


habeas corpus.    Cunningham, 81 A.3d at 18 (Castille, C.J., concurring)

(quoting Judge, 916 A.2d at 521).

     In Judge, the appellant was convicted of first-degree murder and

sentenced to death. Judge, 916 A.2d at 513. The appellant escaped from

custody two days after sentencing and fled to Canada. Id. The appellant

subsequently committed a series of armed robberies in Canada and was

arrested and sentenced to two ten-year terms of imprisonment to run

concurrently.    Id.   “Canada refused to extradite [the] [a]ppellant to

Pennsylvania, pursuant to the extradition treaty between the United States

and Canada, which provides that Canada will not extradite any person to

face a sentence of death in the United States.”    Id.   After completing his

terms of imprisonment in Canada in 1998, however, Canada deported the

appellant to New York, and thereafter, New York extradited the appellant to

Pennsylvania. Id. at 514.

     The appellant filed a complaint with the United Nations Human Rights

Committee (the “Committee”), arguing that Canada violated his human

rights under the International Covenant for Civil and Political Rights

(“ICCPR”)5, by deporting him to face his death sentence.      Id. at 514-16.

The Committee agreed, finding that Canada violated the ICCPR. Following

the Committee’s determination, the appellant filed a petition in Pennsylvania

5
 The ICCPR “is an international agreement that sets forth substantive and
procedural rights to which all persons are entitled and establishes the
Committee to monitor States-Parties’ compliance with the treaty’s
provisions.” Judge, 916 A.2d at 514-15.


                                    -9-
J-S67012-14


“under either the PCRA or the statutory and constitutional right to habeas

corpus relief[.]” Id. at 517. The appellant argued that “Canada’s asserted

violation of his human rights under the ICCPR requires that his sentence be

reduced to life imprisonment or that he be returned to Canada to be

deported or extradited in compliance with the Committee’s ruling.” Id. The

PCRA court, assuming that his claims were cognizable under the PCRA,

dismissed the appellant’s petition.

      On appeal, our Supreme Court was asked to determine whether the

appellant’s claims were cognizable under the PCRA or if a writ of habeas

corpus was the proper avenue for relief. The Judge Court determined that

“[t]he Committee’s determination and the facts upon which it is based,

regardless of their validity, have no connection to the truth-determining

process and do not render the underlying adjudication of guilt or innocence

… unreliable.” Id. at 520. The Judge Court further held that the appellant

was not challenging the conviction or sentence, but rather, was “challenging

the continued vitality of his sentence, a claim that is at the heart of habeas

corpus.” Id. at 521. Thus, the Judge Court held that his claims were not

cognizable under the PCRA and could be raised in a petition for writ of

habeas corpus. Id. at 521.

      In his appellate brief, Baker borrows the “continued vitality of his

sentence” language from Judge and contends that he properly raised his

constitutional claim in a habeas petition. Baker’s Brief at 6. Baker argues



                                      - 10 -
J-S67012-14


that his sentence is cruel punishment forbidden by Article I, Section 13 of

the Pennsylvania Constitution and alleges that like the appellant in Judge,

his claim was properly brought in a habeas petition since he “is not asserting

his innocence to the crime he was convicted of nor is he arguing his

sentence was illegal when it was originally imposed.” Id. at 5-6.

      Judge is distinguishable from the case presented herein, however, as

the crux of the issue to be decided in Judge was whether the appellant’s

deportation from Canada, which resulted in him facing a death sentence,

was a violation of his rights.     The appellant’s conviction and sentence

remained final and were not addressed or affected by the Court’s decision.

In this case, Baker argues that he is entitled to a hearing on the merits of

his claim that his sentence should be vacated because the uneven

retroactive application of Miller violates Article I, Section 13’s ban on cruel

punishment.   Unlike the situation presented in Judge, Baker’s sentence is

not an ancillary matter, but, is the ultimate issue to be decided.       Thus,

Judge does not support Baker’s contention that his claim is not cognizable

under the PCRA.

      Moreover, this Court has held that “a claim that a sentence constitutes

cruel and unusual punishment raises a question of the legality of the

sentence[.]” Commonwealth v. Brown, 71 A.3d 1009, 1016 (Pa. Super.

2013). “Issues concerning the legality of sentence are cognizable under the

PCRA.”   Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004).



                                    - 11 -
J-S67012-14

Our review of the argument raised on appeal reveals that Baker does not

present any grounds to establish why his claim does not raise a question of

the legality of his sentence or to establish that his claim is not otherwise

cognizable under the PCRA.6 As a result, based on the argument presented,

we conclude that the PCRA court did not err in treating Baker’s habeas

petition as a PCRA petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/11/2015




6
    We note that in Baker’s amended habeas petition dated December 27,
2013, he raised additional claims in support of treating his petition under
habeas corpus principles rather than the PCRA. He failed to present any
argument in his appellate brief relative to those claims, however, and has
therefore abandoned those claims on appeal. See Commonwealth v.
Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) (quoting
Commonwealth v. Gonzalez, 608 A.2d 528, 531 (Pa. Super. 1992)) (“‘The
failure to develop an adequate argument in an appellate brief may [] result
in waiver of the claim’ under Pa.R.A.P. 2119.”).


                                   - 12 -
