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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
                                            :
LARRY MARKLE,                               :
                                            :
                          Appellant         :     No. 513 MDA 2014


                Appeal from the PCRA Order February 12, 2013
                 In the Court of Common Pleas of York County
               Criminal Division No(s).: CP-67-CR-0001337-1975

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 24, 2014

        Appellant, Larry Markle, appeals from the order dismissing as untimely

his third Post Conviction Relief Act1 (PCRA) petition seeking relief, in light of

Miller v. Alabama, 132 S. Ct. 2455 (2012), from a mandatory sentence of

life imprisonment imposed on October 29, 1979.         Appellant’s counsel has

filed a petition to withdraw from representation and a no-merit letter in this

Court.2     In response to counsel’s filings, Appellant has filed a pro se

appellate brief, as well as motions seeking leave to proceed pro se and

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
  See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
J. S71035/14


remand to supplement counsel’s Pa.R.A.P. 1925(b) statement. In his pro se

filings, Appellant asserts he is entitled to resentencing based on Miller and

also suggests that Pennsylvania’s implementation of Miller violates federal

and state constitutional protections. We deny counsel’s petition to withdraw

and      remand   this   case   for     further    proceedings    consistent   with   this

memorandum.

         Appellant was charged with murder and related offenses for shooting

and killing a customer with a shotgun while attempting to rob a grocery

store on October 9, 1975.             Appellant was seventeen years old when he

committed the underlying acts.

         At his first trial, Appellant waived his right to a jury. The trial court

found him guilty of murder of the first-degree and sentenced him to a

mandatory       sentence   of    life   imprisonment.        On    direct   appeal,   the

Pennsylvania Supreme Court held Appellant’s statements to police should

have been suppressed, reversed the judgment of sentence, and remanded

the case for new trial.         Commonwealth v. Markle, 380 A.2d 346 (Pa.

1977).

         Following remand, Appellant exercised his right to a jury for his second

trial.    On January 27, 1978, the jury found him guilty of murder of the

second degree and related offenses.               On October 29, 1979, the trial court




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sentenced Appellant to an mandatory term of life imprisonment without

parole.3 Appellant did not take a direct appeal.

      Appellant filed several pro se petitions collaterally challenging his

conviction, but no orders disposing of those petitions were entered. On April

5, 1989, the PCRA court received Appellant’s first pro se PCRA petition. The

court held an evidentiary hearing on May 2, 1990, and that same day,

denied the petition. This Court affirmed. Commonwealth v. Markle, 125

Harrisburg 1991 (unpublished memorandum) (Pa. Super. Sept. 6, 1991).

      On July 6, 2010, the PCRA court received Appellant’s second pro se

PCRA petition requesting relief under Graham v. Florida, 560 U.S. 48

(2010).4   On September 10, 2010, the PCRA court dismissed the petition

after providing notice under Pa.R.Crim.P. 907.          This Court affirmed.

Commonwealth v. Markle, 1678 MDA 2010 (unpublished memorandum)

(Pa. Super. Aug. 25, 2011).

      On July 25, 2012, the PCRA court received the underlying pro se PCRA

petition, Appellant’s third. Appellant asserted he was entitled to relief under

Miller, which was decided one month earlier, on June 25, 2012. The court


3
  The trial court also imposed a concurrent sentence of ten to twenty years’
imprisonment for robbery. On December 4, 1979, and in response to
Appellant’s post-sentence motion, the trial court modified that sentence to a
concurrent term of five to ten years’ imprisonment.
4
  Graham held that the Eighth Amendment of the United States Constitution
prohibits sentences of life without parole for juvenile non-homicide
offenders. Graham, 560 U.S. at 75.



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appointed counsel, and the parties agreed to a continuance to await the

Pennsylvania     Supreme    Court’s    decision   in   Commonwealth        v.

Cunningham, 51 A.2d 178 (Pa. Aug. 6, 2012) (granting allowance of

appeal).

      On October 31, 2013, the Pennsylvania Supreme Court decided

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), and held that

Miller does not apply retroactively for PCRA purposes to juvenile offenders

whose conviction became final before Miller. Cunningham, 81 A.3d at 11.

On December 7, 2013, the PCRA court issued a Rule 907 notice of its intent

to dismiss Appellant’s petition in light of Cunningham.         In response,

Appellant filed a counseled request to amend his petition and an amended

petition seeking PCRA relief or the issuance of a writ of habeas corpus.5

The court accepted the amended petition and on February 12, 2014, entered

an order and opinion denying Appellant’s PCRA petition and request for

habeas corpus relief. Appellant filed a timely notice of appeal and complied

with the court’s order to file a Pa.R.A.P. 1925(b) statement.

      As noted above, Appellant’s appointed counsel has submitted a

petition to withdraw and a no-merit letter in this Court.       Appellant, in

response, has filed various pro se motions and a brief in support of his

requests for relief.


5
 Section 6503 of the Judicial Code codifies the right to apply for a writ of
habeas corpus. See 42 Pa.C.S. § 6503.



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      Preliminarily, we consider whether counsel has complied with the

procedures to withdraw from representation.         See Commonwealth v.

Doty, 48 A.3d 451, 454 (Pa. Super. 2012).

         Counsel petitioning to withdraw from PCRA representation
         must proceed . . . under [Turner, supra and Finley,
         supra and] . . . 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 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.

                                  *    *     *

         [W]here counsel submits a petition and no-merit letter that
         . . . 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[.]

Id. (citation omitted). The failure of counsel to address issues a petitioner

intended to raise will result in the rejection of the petition to withdraw. See

Commonwealth v. Glover, 738 A.2d 460, 465 (Pa. Super. 1999).

      Instantly, counsel has complied with the procedural requirements of

Turner/Finley.      Therefore,   we   will   independently   review   counsel’s

assessment of the issues Appellant intended to raise.




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      In his no-merit letter, counsel identified Appellant’s intended challenge

to “the constitutionality . . . of life without parole sentences regarding

homicide when at the time of the offence [sic] the defendant was a

juvenile.”   See No-Merit Letter, 8/14/14, at 2. Counsel concluded that in

light of Cunningham, the PCRA court was “bound to follow the current state

of the law . . . as interpreted by the Pennsylvania Supreme Court.”6 Id.

      In his pro se response to counsel’s no-merit letter, Appellant asserted

that “Miller is substantive and applies retroactively on both federal and

state grounds.”    Appellant’s Pro Se Brief at 7.     He further argued his

sentence violated “both the United States and Pennsylvania Constitutions

because two classes of prisoners sentenced to mandatory life without parole

are treated differently.”   Id. According to Appellant, such claims “may be

reviewed either under the [PCRA] or under Pennsylvania’s constitutional and

statutory guarantee of habeas corpus.” Id.

      When reviewing counsel’s assessment that this appeal lacks merit, we

are mindful that

         [o]ur standard of review regarding a PCRA court’s order is
         whether the determination of the PCRA court is supported
         by the evidence of record and is free of legal error. The

6
  The PCRA court concluded Appellant was not entitled to relief because
Cunningham held that Miller does not apply retroactively. PCRA Ct. Op.,
2/14/12, at 2-3. The court held Appellant’s petition was untimely filed under
the PCRA, and, in the alternative, that Miller did not provide a basis for
granting relief under the habeas corpus statute. Id.




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

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)

(citations omitted).   “[W]e may affirm the decision of the [PCRA] court if

there is any basis on the record to support the [PCRA] court’s action; this is

so even if we rely on a different basis in our decision to affirm.”

Commonwealth v. Blackwell, 936 A.2d 497, 499 (Pa. Super. 2007)

(citation omitted).

      We first address whether Appellant’s petition was timely filed under

the PCRA.

         [N]o court has jurisdiction to hear an untimely PCRA
         petition.   The most recent amendments to the PCRA,
         effective January 16, 1996, provide that a PCRA petition,
         including a second or subsequent petition, shall be filed
         within one year of the date the underlying judgment
         becomes final.     A judgment is deemed final “at the
         conclusion of direct review, including discretionary review
         in the Supreme Court of the United States and the
         Supreme Court of Pennsylvania, or at the expiration of
         time for seeking review.”

            The three statutory exceptions to the timeliness
         provisions in the PCRA allow for very limited circumstances
         under which the late filing of a petition will be excused. 42
         Pa.C.S.[ ] § 9545(b)(1).        To invoke an exception, a
         petition must allege and the petitioner must prove:

               (i) the failure to raise a claim previously was the
            result of interference by government officials with the
            presentation of the claim in violation of the Constitution
            or laws of this Commonwealth or the Constitution or
            laws of the United States;




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                  (ii) the facts upon which the claim is predicated were
               unknown to the petitioner and could not have been
               ascertained by the exercise of due diligence; or

                  (iii) 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.[ ] § 9545(b)(1)(i)-(iii). “As such, when a PCRA
         petition is not filed within one year of the expiration of
         direct review, or not eligible for one of the three limited
         exceptions, or entitled to one of the exceptions, but not
         filed within 60 days of the date that the claim could have
         been first brought, the trial court has no power to address
         the substantive merits of a petitioner’s PCRA claims.”

Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super. 2006) (some

citations omitted).

      To prove a timeliness exception under 42 Pa.C.S. § 9545(b)(1)(iii), a

petitioner must demonstrate two elements. Commonwealth v. Seskey, 86

A.3d 237, 242 (Pa. Super. 2014) (citation omitted), appeal denied, 2014 WL

5096348 (Pa. Sep. 30, 2014). First, Subsection 9545(b)(1)(iii) requires that

the   United    States or    the   Pennsylvania   Supreme    Court recognize   a

constitutional right. Id. at 242-43. Second, the right must have been held

by “that court” to apply retroactively before a petition is filed. Id.

      Instantly, there is no dispute that Appellant’s instant petition was

untimely on its face. Nevertheless, Appellant asserts that Miller should be

held to be retroactive under federal or Pennsylvania law and, therefore, he is

entitled to a time-bar exception under Subsection 9545(b)(1)(iii).             In



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support, Appellant observes, inter alia, that the United States Supreme

Court, in Miller, applied similar constitutional principles to two defendants,

Evan Miller, whose conviction had not become final, and Kuntrell Jackson,

whose conviction was final but challenged on collateral post-conviction

review. Appellant’s Pro Se Brief at 29.

      We agree with the PCRA court’s and counsel’s assessments that

Appellant’s arguments with respect to the PCRA time-bar lack merit. We are

bound by the precedents established by the Pennsylvania Supreme Court in

Cunningham and this Court in Seskey.          We emphasize that Appellant’s

arguments that Miller should be applied retroactively do not state a PCRA

time-bar exception under 42 Pa.C.S. § 9545(b)(1)(iii).      See Seskey, 86

A.3d at 243. We also note that the Pennsylvania Supreme Court, in

Cunningham, acknowledged the procedural posture of Jackson, but found

that procedural history irrelevant to a retroactivity analysis of Miller. See

Cunningham, 81 A.3d at 9.          Therefore, under the present law of this

Commonwealth, we are constrained to conclude that neither the United

States Supreme Court nor the Pennsylvania Supreme Court has announced a

new right that “has been held by that court to be retroactive.”       See 42

Pa.C.S. § 9454(b)(1)(iii).    Accordingly, the PCRA court properly concluded

that Miller did not provide a basis to avoid the PCRA time-bar under

Subsection 9545(b)(1)(iii).




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     As to Appellant’s arguments that the habeas corpus statute provides

an alternative means to consider his constitutional claims based on Miller,

we conclude no relief is due.      The Pennsylvania Supreme Court has

explained:

            The legislature has clearly directed that the PCRA
        provide the sole means for obtaining collateral review and
        relief, encompassing all other common law rights and
        remedies, including habeas corpus. See 42 Pa.C.S. §
        9542 . . . . As certain penalty phase claims, which are not
        waived or otherwise forfeited are cognizable on traditional
        habeas corpus review, section 9542 plainly requires that
        they must be considered exclusively within the context of
        the PCRA.       Such claims could not be legislatively
        foreclosed, since the Pennsylvania Constitution provides,
        with limited exceptions not here applicable, that the
        privilege of the writ of habeas corpus shall not be
        suspended.

           Given that the choice was between a unified statutory
        procedure or bifurcated review having statutory and
        common law components, it seems clear that the General
        Assembly intended to channel all claims requiring review
        through the framework of the PCRA. . . . .

Commonwealth v. Chester, 733 A.2d 1242, 1250-51 (Pa. 1999) (some

citations omitted), abrogated on other grounds by Commonwealth v.

Grant, 813 A.2d 726 (Pa. 2002). Thus,

        [u]nless the PCRA could not provide for a potential
        remedy, the PCRA statute subsumes the writ of habeas
        corpus. Issues that are cognizable under the PCRA must
        be raised in a timely PCRA petition and cannot be raised in
        a habeas corpus petition. Phrased differently, a defendant
        cannot escape the PCRA time-bar by titling his petition or
        motion as a writ of habeas corpus.




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Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013)

(citations and footnote omitted).

       Appellant’s present claim—i.e., that his sentence “resulted from a

violation of” the constitutions or laws of the Commonwealth or the United

States in light of Miller—is cognizable under the PCRA, but procedurally

defaulted by the time-bar. See 42 Pa.C.S. §§ 9543(a)(2), 9545(b)(1)(iii);

Chester 733 A.2d at 1251. We further note that the Pennsylvania Supreme

Court has abrogated equitable exceptions to the operation of the PCRA time-

bar.    See Commonwealth v. Eller, 807 A.2d 838, 845 (Pa. 2002).

Accordingly, we discern no merit to Appellant’s argument that the habeas

corpus statute provides a means to litigate his Miller claims.7 See Taylor,

65 A.3d at 465-66.

       Appellant’s last two issues subsume several related arguments.

Rather than claiming relief based on Miller, he argues he is entitled to relief

in light of Cunningham.        Specifically, he asserts that Pennsylvania’s

implementation of Miller gives rise to independent claims that his sentence

violates state and federal constitutional guarantees of equal protection and

against cruel and unusual punishments.       According to Appellant, his post-




7
  In any event, we agree with the PCRA court that even if a petitioner could
raise a Miller claim under the habeas corpus statute, Cunningham would
preclude a court from granting relief where the conviction became final
before Miller was announced.



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Cunningham constitutional claims are cognizable and timely presented

under the PCRA, or should be addressed under the habeas corpus statute.

      Assuming arguendo that claims based on Cunningham are cognizable

under the PCRA, we discern no merit to Appellant’s suggestion that

Cunningham creates an exception to the PCRA time-bar under 42 Pa.C.S. §

9545(b)(1)(iii). Cunningham did not announce a new constitutional right.

Rather, Cunningham conducted a narrow review of the right already

recognized in Miller and held that Miller was not retroactive for the

purposes     of   post-conviction   relief.      Cunningham,   81   A.3d   at   11.

Accordingly, the Cunningham decision does not trigger the time-bar

exception under Subsection 9545(b)(1)(iii), and Appellant’s claims are

untimely and cannot be considered under the PCRA. See Seskey, 86 A.3d

at 242-43.

      With respect to Appellant’s alternative contention that the habeas

corpus statute affords a remedy for his collateral challenge based on

Cunningham, we note that this claim was preserved in the counseled

amended petition that was accepted by the PCRA court. See Am. Pet. for

Habeas Corpus Relief under Article I, Section 14 of the Pennsylvania

Constitution and for Post-Conviction Relief under the Post Conviction Relief

Act, 1/7/14, at 14-19.      Moreover, Appellant’s pro se brief in this appeal

contains citation to legal authority and principles.     See Appellant’s Pro Se

Brief at 29-30.



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      However, Appellant’s pro se argument to this Court fails to consider, or

establish, that the instant claims based on Cunningham are not cognizable

under the PCRA or that the PCRA provides no possibility of relief.       See

Taylor, 65 A.3d at 465-66.         Consequently, he does not advance a

meaningful argument that his claims give rise to an independent action

under the habeas corpus statute.

      We recognize a petitioner’s failure to argue that the PCRA did not

provide a remedy results in waiver of a claim that habeas corpus relief is

available.   See Seskey, 86 A.3d at 244.       We are further mindful that

present counsel was appointed under the rule-based right to counsel for the

purposes of litigating a PCRA petition. See Pa.R.Crim.P. 904. Nevertheless,

in conducting our review of counsel’s no merit letter, we have discerned an

issue that was raised by counsel in the PCRA court, but was not addressed in

his present attempt to withdraw under Turner/Finley. Furthermore, we are

not convinced that Appellant’s constitutional claims in light of Cunningham

lack arguable merit, or that his assertion that habeas corpus relief may be

available are frivolous.   See Cunningham, 81 A.3d at 18 (Castille, C.J.,

concurring) (noting “it is not apparent that such a state constitutional claim

[to afford global retroactive effect to Miller] is cognizable under the PCRA

[and] 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[.]”).

But see Seskey, 86 A.3d at 244 (Strassburger, J., concurring) (suggesting



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petitioner’s claims based on Cunningham properly dismissed as untimely

PCRA petition).

         Therefore, we deny counsel’s petition to withdraw and direct counsel

to file either an amended no-merit letter or an advocate’s brief within sixty

days of the filing of this memorandum. Counsel shall address whether the

PCRA court erred in dismissing Appellant’s request to consider his equal

protection and cruel and unusual punishment claims under the habeas

corpus statute.     The Commonwealth may submit an amended appellee’s

brief.

         In light of our disposition, we dismiss Appellant’s pro se motions to

dismiss counsel, proceed pro se, and remand for the filing of a supplemental

Pa.R.A.P. 1925(b) statement without prejudice to renew his requests in the

PCRA court. If Appellant wishes to proceed pro se, he shall file a motion to

do so in the PCRA court. The PCRA court shall conduct a Grazier8 hearing

to ensure his waiver of counsel is knowing, intelligent and voluntary and

advise this Court of Appellant’s election.

         Case remanded.    Counsel’s petition to withdraw denied.   Appellant’s

pro se motion “to Dismiss Court-appointed Counsel, Proceed Pro Se on

Appeal, and Remand to file an Amended or Supplemental Concise Statement

of Matters Complained of on Appeal Nunc Pro Tunc” dismissed without

prejudice. Panel jurisdiction retained.

8
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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