J-S01003-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                 Appellee                :
                                         :
           v.                            :
                                         :
SCOTT ALLEN SCHROAT,                     :
                                         :
                 Appellant               :          No. 1543 WDA 2013

       Appeal from the PCRA Order entered on September 17, 2013
               in the Court of Common Pleas of Erie County,
             Criminal Division, No. CP-25-CR-0001371-1992

BEFORE: GANTMAN, P.J., JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED FEBRUARY 5, 2015

     Scott Allen Schroat (“Schroat”) appeals from the Order denying his

Petition filed pursuant to the Post Conviction Relief Act (“PCRA”).   See 42

Pa.C.S.A. §§ 9541-9546. We affirm.

     In November 1992, Schroat pled guilty to first-degree murder,

possessing an instrument of crime, unlawful restraint, and abuse of a

corpse, after strangling and stabbing a five-year-old girl in his parents’

house and disposing of the body. Notably, Schroat was seventeen years old

at the time of the murder.    In December 1992, the trial court imposed a

mandatory sentence of life in prison without the possibility of parole

(hereinafter “LWOP”), plus six to twelve years.    This Court affirmed the

judgment of sentence, after which the Supreme Court of Pennsylvania

denied allowance of appeal.   See Commonwealth v. Schroat, 639 A.2d
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842 (Pa. Super. 1993) (unpublished memorandum), appeal denied, 646

A.2d 1177 (Pa. 1994).

      Several years later, on July 24, 2012, Schroat filed a pro se PCRA

Petition.1   Therein, Schroat acknowledged that his Petition was facially

untimely, but, according to Schroat, he had met the PCRA’s “newly-

recognized constitutional right”         exception,   contained    in 42      Pa.C.S.A.

§ 9545(b)(1)(iii).2      Specifically, Schroat challenged the constitutionality of

his LWOP sentence pursuant to the United States Supreme Court’s then-

recent   decision   in    Miller   v.   Alabama,      132   S.   Ct.   2455    (2012).3

Additionally, Schroat correctly pointed out that he had filed his PCRA Petition




1
  Schroat had previously filed two other PCRA Petitions, both of which were
dismissed.
2
   Section 9545(b)(1)(iii) provides that a petitioner may file a PCRA outside of
the one-year time limitation where the petitioner pleads and 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.”      42 Pa.C.S.A. § 9545(b)(1)(iii); see also id.
§ 9545(b) (providing that “[a]ny petition under this subchapter … shall be
filed within one year of the date the judgment becomes final, unless the
petition alleges and the petitioner proves” one of the three exceptions in
sub-section (b)(1)).
3
  The Miller Court held that mandatory LWOP sentences for juveniles are
unconstitutional. See Miller, 132 S. Ct. at 2464. The Court reasoned that,
in light of a juvenile’s diminished culpability and heightened capacity for
change, mandatory juvenile sentencing schemes pose too great a risk of
disproportionate punishment, in contravention of the Eighth Amendment.
Id. at 2469.



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invoking this exception within sixty days of the Miller decision, in

compliance with 42 Pa.C.S.A. § 9545(b)(2).

      In response to Schroat’s PCRA Petition, the PCRA court appointed

Emily Mosco Merski, Esquire (“Attorney Merski”), to represent Schroat, after

which Attorney Merski filed a Supplemental PCRA Petition. The PCRA court

subsequently gave Schroat Notice, pursuant to Pa.R.Crim.P. 907 (hereinafter

“the Rule 907 Notice”), of the court’s intention to dismiss Schroat’s PCRA

Petition without a hearing. In the Rule 907 Notice, the PCRA court stated

that Schroat was not entitled to collateral relief because Miller does not

apply retroactively.     By an Order entered on September 17, 2013

(hereinafter “the Final Order”), the PCRA court denied Schroat’s PCRA

Petition.   In response, Attorney Merski timely filed a Notice of Appeal on

Schroat’s behalf,4 and later filed an advocate’s brief with this Court.5

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

      A. Whether the PCRA court erred in [denying Schroat’s] PCRA
         [Petition] despite the recent decision by the United States
         Supreme Court in Miller []?

4
  Although Attorney Merski filed the Notice of Appeal from the Rule 907
Notice, the appeal was nevertheless timely filed within thirty days of the
Final Order. We have altered the caption to reflect that the Final Order is
the proper subject of this appeal.
5
   Attorney Merski includes in her brief a short section invoking
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), both
of which concern the procedure required before withdrawal on collateral
appeal is permitted. See Brief for Appellant at 12. However, Attorney
Merski did not file a petition to withdraw as counsel, and, aside from this
section, her brief is an advocate’s brief, not a Turner/Finley brief.


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     B. Whether the PCRA court erred when it failed to apply the
        decision from Miller retroactively?

     C. Whether the PCRA court erred when it failed to find the
        Miller decision applicable to individuals who are serving
        sentences of [LWOP,] as their conduct lacks the mens rea
        required for first-degree murder?

     D. Whether the PCRA court erred in failing to grant [Schroat]
        relief pursuant to the Pennsylvania habeas corpus statute, 42
        Pa.C.S. § 6501 et seq.?

Brief for Appellant at 3 (capitalization omitted). We will address Schroat’s

claims simultaneously, as they are related.

            We review an order [denying] a petition under the PCRA in
     the light most favorable to the prevailing party at the PCRA
     level. This review is limited to the findings of the PCRA court
     and the evidence of record. We will not disturb a PCRA court’s
     ruling if it is supported by evidence of record and is free of legal
     error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

     In an attempt to overcome the untimeliness of his PCRA Petition,

Schroat invokes the exception in section 9545(b)(1)(iii) by contending that

the United States Supreme Court recognized a new constitutional right in

Miller when it held that imposing a mandatory LWOP sentence for crimes

committed while a juvenile is cruel and unusual punishment, in violation of

the Eighth Amendment to the United States Constitution.         See Brief for

Appellant at 5-6; see also Miller, 132 S.Ct. at 2463.         He argues that




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because he was a juvenile when he was sentenced to LWOP, his sentence

was illegal pursuant to Miller. Brief for Appellant at 5-6.

      Although Schroat is correct in claiming that the United States Supreme

Court recognized a new constitutional right after his time to file a timely

PCRA petition expired, he nonetheless failed to meet any exception to the

PCRA’s time-bar.    As noted above, in order to establish the exception in

section 9545(b)(1)(iii), the petitioner must show that the newly-recognized

constitutional right “has been held by that court[, i.e., the Supreme Court of

the United States or the Supreme Court of Pennsylvania,] to apply

retroactively.” 42 Pa.C.S.A. § 9545(b)(1)(iii); see also Commonwealth v.

Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002) (interpreting this language of

section 9545(b)(1)(iii)).

      Schroat concedes that the Pennsylvania Supreme Court has held that

Miller does not apply retroactively to cases on collateral review.       See

Commonwealth v. Cunningham, 81 A.3d 1, 8-9, 11 (Pa. 2013) (holding

that Miller did not apply retroactively to an inmate, convicted as a juvenile,

who is serving a LWOP sentence, and who has exhausted his direct appeal

rights and is proceeding under the PCRA); see also Brief for Appellant at 7,

12.   Further, the United States Supreme Court denied certiorari on the

Cunningham case.        Cunningham v. Pennsylvania, 134 S. Ct. 2724

(2014). As of this time, neither the United States Supreme Court nor the




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Pennsylvania Supreme Court has declared Miller to apply retroactively.6

Therefore, Schroat has failed to meet the requirements of the after-

discovered constitutional right exception to the PCRA’s time bar.

      To the extent that Schroat argues that, despite Cunningham, “Miller

should have retroactive application under the more broad principles of

retroactive application based in Pennsylvania law[,”] Brief for Appellant at 7,

this claim does not entitle Schroat to relief.    We may not overlook the

Supreme Court’s clear holding in Cunningham, which is controlling in the

instant case.

      Finally, we find no merit in Schroat’s claim that the PCRA court erred

by failing to grant him relief under Pennsylvania’s habeas corpus statute, 42

Pa.C.S.A. § 6501 et seq. See Brief for Appellant at 11-12. In our courts,

the PCRA provides the sole means of obtaining collateral relief where a claim

is cognizable under the PCRA.     See 42 Pa.C.S.A. § 9542 (providing that

“[t]he action established in this subchapter shall be the sole means of

obtaining collateral relief and encompasses all other common law and

statutory remedies for the same purpose that exist when this subchapter

takes effect, including habeas corpus[.]”); 42 Pa.C.S.A. § 6503(b) (provision

of the habeas corpus statute stating that “[w]here a person is restrained by

virtue of sentence after conviction for a criminal offense, the writ of habeas

6
  On December 12, 2014, the Supreme Court of the United States, in Toca
v. Louisiana, --- S.Ct. ----, 2014 WL 4743531, 2014 U.S. LEXIS 8302
(2014), granted a petition for writ of certiorari to determine whether Miller
applies retroactively.


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

hearing proceedings authorized by law.”); see also Commonwealth v.

Turner, 80 A.3d 754, 770 (Pa. 2013) (noting that the PCRA subsumes the

remedy of habeas corpus where the claim is cognizable under the PCRA);

Commonwealth v. Peterkin, 722 A.2d 638, 641 (Pa. 1998) (holding that

because an untimely PCRA petition was premised on claims that were

cognizable under the PCRA, the statutory writ of habeas corpus was

unavailable).

     Based upon the foregoing, we conclude that the PCRA court properly

denied Schroat’s untimely PCRA Petition.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/5/2015




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