J-S58016-14



                                  2014 PA Super 280



COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

MICHAEL REED,

                            Appellant                  No. 1956 WDA 2013


                 Appeal from the PCRA Order December 9, 2013
               in the Court of Common Pleas of Allegheny County
               Criminal Division at No.: CP-02-CR-0006853-1990


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

OPINION BY PLATT, J.:                              FILED DECEMBER 19, 2014

        Appellant, Michael Reed, appeals from the dismissal of his fourth

petition for relief pursuant to the Post Conviction Relief Act (PCRA), 42

Pa.C.S.A. §§ 9541–9546.           Counsel has filed a petition to withdraw from

further representation pursuant to Commonwealth v. Turner, 544 A.2d

927 (Pa. 1998) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

1988) (en banc).       The chief question for our review is whether the United

States Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S58016-14


(2012) applies retroactively to Appellant.1             Neither the United States

Supreme Court nor our Supreme Court has held that Miller applies

retroactively.    Accordingly, we conclude that Appellant’s PCRA petition is

untimely, with no statutory exception to the time-bar proven. Counsel has

substantially    complied      with   the      procedures   to   request   withdrawal.

Therefore, we grant counsel’s petition to withdraw and affirm the dismissal

of Appellant’s PCRA petition.

       The underlying facts are not in dispute.             See Commonwealth v.

Reed, 645 A.2d 872, 873 (Pa. Super. 1994) (en banc), appeal denied, 658

A.2d 794 (Pa. 1995).         On April 18, 1990, Appellant and a co-defendant,

Jackie Lee Williams, both then seventeen years old,2 hailed a cab in

Pittsburgh.     When they arrived at their destination, they informed the cab

driver, Thomas Law, that they did not have money to pay the fare. After an

argument, and Mr. Law’s threat to go to the police, Appellant fatally shot

and robbed him.       A jury convicted Appellant of murder of the first degree

and robbery, on June 6, 1991. The court sentenced him to life imprisonment

____________________________________________


1
  In Miller the United States Supreme Court concluded that mandatory life-
without-parole sentences for juveniles violate the Eighth Amendment. See
id. at 2464.
2
  Appellant, born on June 30, 1972, acknowledges that on the day of the
crime he was seventeen years, nine months, two weeks and five days old.
(See Response to Notice of Intention to Dismiss, 9/17/12, at unnumbered
page 1, ¶¶ 1-2). In other words, Appellant was two months and twelve days
short of his eighteenth birthday.



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on April 3, 1992.      This Court affirmed the judgment of sentence, and our

Supreme Court denied allowance of appeal. See id.

       Appellant filed the instant fourth PCRA petition on July 10, 2012, and

the PCRA court appointed current counsel, who filed an amended petition.3

The PCRA court filed notice of its intent to dismiss. (See Order, 9/05/12);

see also Pa.R.Crim.P. 907(1). Appellant filed a counseled response. The

court dismissed the petition on December 9, 2013, as patently frivolous.4

Appellant timely appealed. On June 27, 2014, counsel filed an “Application

for Leave to Withdraw as Counsel under Turner and Finley” along with a

supporting brief.5      Appellant has not filed a response to the petition to

withdraw.

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3
  We note that Appellant filed his petition within fifteen days of the United
States Supreme Court’s decision in Miller, filed on June 25, 2012.
Therefore, his petition complied with the PCRA sixty day rule. See 42
Pa.C.S.A. § 9545(b)(2) (“Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the claim could have
been presented.”).
4
 For reasons not readily apparent from the record, the PCRA court also filed
essentially identical orders of dismissal in this case on December 17, 2013,
and January 14, 2014.
5
  Counsel submitted a brief in the nature of an Anders brief in support of
the petition to withdraw. (See “Brief in Support of Application for Leave to
Withdraw as Counsel under Turner and Finley,” 6/27/14); see also
Anders v. California, 386 U.S. 738 (1967). Where counsel seeks to
withdraw on appeal from the denial of PCRA relief, a Turner/Finley “no-
merit letter” is the appropriate filing. However, “[b]ecause an Anders brief
provides greater protection to a defendant, this Court may accept an
Anders brief in lieu of a Turner/Finley letter.”         Commonwealth v.
(Footnote Continued Next Page)


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      Counsel’s brief presents three questions for our review:

             1. Whether the PCRA [c]ourt erred in denial [of] PCRA
      relief on the basis that the PCRA proceeding was untimely?

            2. Whether the United States Supreme Court held that the
      rule in Miller v. Alabama, by applying said rule in the
      companion case of Jackson v. Hobbs, applies retroactively to
      cases where direct review had concluded prior to the
      announcement of said rule in Miller v. Alabama?

             3. Whether Commonwealth v. Batts, ___ Pa. ____, 66
      A.3d 286 (2013) recognized a rule of constitutional law under
      the Pennsylvania Constitution similar to that in Miller v.
      Alabama and does the rule in Batts apply retroactively to cases
      where direct review concluded prior to the announcement of said
      rule in Batts?

(“Anders” Brief, at 3).

      Our standard and scope of review are well-settled.

            We review an order dismissing 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. This Court may affirm a PCRA court’s decision on any
      grounds if the record supports it. We grant great deference to
      the factual findings of the PCRA court and will not disturb those
      findings unless they have no support in the record. However, we
      afford no such deference to its legal conclusions. Further, where
      the petitioner raises questions of law, our standard of review is
      de novo and our scope of review is plenary.

                                        *        *   *

            The Turner/Finley decisions provide the manner for post-
      conviction counsel to withdraw from representation.       The
                       _______________________
(Footnote Continued)

Widgins, 29 A.3d 816, 817 n.2 (Pa. Super. 2011) (citing Commonwealth
v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa. Super. 2004)).



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     holdings of those cases mandate an independent review of the
     record by competent counsel before a PCRA court or appellate
     court can authorize an attorney’s withdrawal. The necessary
     independent review requires counsel to file a “no-merit” letter
     detailing the nature and extent of his review and list each issue
     the petitioner wishes to have examined, explaining why those
     issues are meritless. The PCRA court, or an appellate court if the
     no-merit letter is filed before it, see Turner, supra, then must
     conduct its own independent evaluation of the record and agree
     with counsel that the petition is without merit. . . .

     [T]his Court [has] imposed additional requirements on counsel
     that closely track the procedure for withdrawing on direct
     appeal. . . . [C]ounsel is required to contemporaneously serve
     upon his [or her] client his [or her] no-merit letter and
     application to withdraw along with a statement that if the court
     granted counsel’s withdrawal request, the client may proceed
     pro se or with a privately retained attorney. . . .

Commonwealth v. Rykard, 55 A.3d 1177, 1183-84 (Pa. Super. 2012),

appeal denied, 64 A.3d 631 (Pa. 2013) (some citations and footnote

omitted).

            [T]he time limitations pursuant to . . . the PCRA are
     jurisdictional. [Jurisdictional time] limitations are mandatory
     and interpreted literally; thus, a court has no authority to extend
     filing periods except as the statute permits. If the petition is
     determined to be untimely, and no exception has been pled and
     proven, the petition must be dismissed without a hearing
     because Pennsylvania courts are without jurisdiction to consider
     the merits of the petition.

Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa. Super. 2011), appeal

denied, 47 A.3d 845 (Pa. 2012) (citations, quotation marks and other

punctuation omitted).




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J-S58016-14


       Here, our review of the record confirms that counsel has substantially

complied with the procedural requirements to withdraw.6       Accordingly, we

will proceed with our independent review of the questions presented to

determine if counsel correctly concluded that the issues raised had no merit.

       Our Supreme Court denied allowance of appeal in this case on April

18, 1995. See Reed, supra at 658 A.2d 794. Thus, Appellant’s judgment

of sentence became final on Monday, July 17, 1995, ninety days after our

Supreme Court denied the petition to appeal and the time for Appellant to

file a petition for writ of certiorari with the United States Supreme Court

expired. See 42 Pa.C.S.A. § 9545(b)(3); United States Supreme Court Rule

13. Accordingly, Appellant had one year to file a petition for PCRA relief, or

until July 17, 1996. See 42 Pa.C.S.A. § 9545(b)(1). Therefore, Appellant’s

instant petition is facially untimely.

       When a petition is otherwise untimely, to obtain PCRA relief under the

exception for a newly recognized constitutional right, a petitioner has the

burden to plead and prove that “the right asserted is a constitutional right

____________________________________________


6
  Specifically, counsel filed a petition to withdraw on June 27, 2014. Counsel
contemporaneously filed her supporting brief. She attached a copy of the
letter sent to Appellant notifying him of her conclusion that he was not
entitled to relief under the PCRA. Counsel enclosed with her notice letter to
Appellant a copy of her petition to withdraw and a copy of her brief. She
informed Appellant of his right to retain private counsel, proceed pro se, file
a supplemental brief, or discontinue his appeal. Appellant has not filed a
response.




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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) (emphasis added).

       Consequently, the only substantive issue for our review is whether

Appellant can claim an exception to the statutory PCRA time-bar on the

grounds that Miller, supra, (or Batts, supra) can be applied retroactively

to him.7 (See “Anders” Brief, at 3).

       Appellant cannot do so.         The United States Supreme Court has not

ruled that Miller is retroactive.              Furthermore, our Supreme Court, in

Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), cert. denied, 134

S. Ct. 2724 (2014), has decided that Miller is not:

       Here, applying settled principles of appellate review, nothing in
       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 as of the time of Miller's announcement.

Id. at 11.

       Cunningham addressed retroactivity under principles enunciated by

the Unites States Supreme Court in Teague v. Lane, 489 U.S. 288 (1989),

in pertinent part, as follows:
____________________________________________


7
 The first question presents only a general claim of error. (See “Anders”
Brief, at 3).




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J-S58016-14


             Briefly, Teague v. Lane, [supra] (plurality), delineated a
      general rule of non-retroactivity for new procedural,
      constitutional rules announced by the Court, WAYNE R. LAFAVE,
      JEROLD H. ISRAEL, NANCY J. KING & ORIN S. KERR, 1 CRIM.
      PROC. § 2.11(e) (3d ed. 2012) (relating that Teague has been
      described as establishing a “law at the time” principle), subject
      to two narrow exceptions. This construct was solidified by the
      majority decision in Penry v. Lynaugh, 492 U.S. 302, 329–30 [
      ] (1989). As relevant here, the exceptions extend to “rules
      prohibiting a certain category of punishment for a class of
      defendants because of their status or offense,” Penry, 492 U.S.
      at 330, [ ] and “watershed rules of criminal procedure
      implicating the fundamental fairness and accuracy of the criminal
      proceeding.” Horn v. Banks, 536 U.S. 266, 271 n. 5, . . . .
      More recently, in Schriro v. Summerlin, 542 U.S. 348 [ ]
      (2004), the High Court appears to have merged the first Teague
      exception with the principle that new substantive rules
      generally apply retroactively. See id. at 351–52 & n.4 [ ]. See
      generally Drinan, Graham on the Ground, 87 WASH. L.REV. at
      66 (explaining that “the Court has shifted its terminology
      somewhat and has described new rules as ‘substantive’ when
      they ‘alter[ ] the range of conduct or the class of persons that
      the law punishes,’ rather than describing them as falling within
      the first of the two non-retroactivity exceptions).”

Cunningham, supra at 4-5 (footnotes and some punctuation omitted;

emphasis in original).

      Here, because the first question presents only a generalized claim of

error, as previously noted, we review it in conjunction with the two

remaining questions. The second question raises the issue of whether the

Miller Court’s application of its holding to the companion case of Jackson v.

Hobbs compels retroactive application of Miller here. (See “Anders” Brief,

at 3); see also Miller, supra at 2475.     This claim disregards the special

status of a case directly reviewed by the United States Supreme Court, as

well as ignoring the case specific analysis that application of the Teague

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J-S58016-14


principles requires.      Furthermore, Cunningham expressly rejected this

argument:       “Initially, we reject Appellant’s position that the Miller Court’s

reversal of the state appellate court decision affirming the denial of post-

conviction relief in the Jackson case compels the conclusion that Miller is

retroactive.”     Cunningham, supra at 9.        The second question does not

merit relief.

      The third, final question posits that our Supreme Court’s holding in

Commonwealth v. Batts, 66 A.3d 286, 299 (Pa. 2013), a direct appeal,

should apply analogously to collateral appeals as well. (See “Anders” Brief,

at 3). This argument has been made before. See Cunningham, supra at

18, (Baer, J., dissenting).      However, as the dissent itself indicates, the

proposal to extend the holding in Miller generally to collateral appeals has

yet to command a majority of our Supreme Court.             To the contrary, our

jurisprudence has traditionally recognized a distinction between properly

raised and preserved issues presented in cases on direct appeal, and cases

on collateral review where a determination of guilt has already been made.

In collateral appeals, the “strong interest in finality inherent in an orderly

criminal justice system” traditionally affords additional weight to the

prospective application of newly announced constitutional principles, within

the context of Teague analysis. Cunningham, supra at 9.

      Moreover, these retroactivity arguments ignore the general rule on

retroactive application adopted in Teague: “Unless they fall within an


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exception to the general rule, new constitutional rules of criminal procedure

will not be applicable to those cases which have become final before the new

rules are announced.”        Teague, supra at 310 (adopting Justice Harlan’s

analysis in Mackey v. United States, 401 U.S. 667, 692 (1971) (Harlan J.,

concurring in part and dissenting in part)). None of the arguments advanced

on behalf of Appellant’s claim to retroactivity for Miller merit relief under

current controlling authority.         Furthermore, on independent review, we

conclude there are no arguments which would merit PCRA relief for

Appellant.

       We recognize that different courts have reached substantially differing

conclusions on the retroactive application of Miller.8 However, this does not

alter our analysis of the state of the law in the Commonwealth of

Pennsylvania.

          At the outset we observe that it is well-settled that this Court
       is not bound by the decisions of federal courts, other than the
       United States Supreme Court, or the decisions of other states’
       courts. See Trach v. Fellin, 817 A.2d 1102, 1115 (Pa. Super.
       2003), appeal denied sub nom. Trach v. Thrift Drug, Inc., 577
       Pa. 725, 847 A.2d 1288 (2004). “We recognize that we are not
       bound by these cases; however, we may use them for guidance
       to the degree we find them useful and not incompatible with
       Pennsylvania law.” Id.

____________________________________________


8
  See e.g., State v. Mantich, 287 Neb. 320, 341, 842 N.W.2d 716, 730-31
(Neb. 2014), cert. denied, Nebraska v. Mantich, 135 S. Ct. 67, 68 (2014)
(applying Miller retroactively under Nebrasaka law); Craig v. Cain, 2013
WL 69128, 2 (C.A.5 2013) (concluding Miller not retroactive under
Teague).



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J-S58016-14


Eckman v. Erie Ins. Exchange, 21 A.3d 1203, 1207 (Pa. Super. 2011).

       “This Court is bound by existing precedent under the doctrine of stare

decisis and continues to follow controlling precedent as long as the decision

has not been overturned by our Supreme Court.”                     Commonwealth v.

Slocum, 86 A.3d 272, 278 n.9 (Pa. Super. 2014) (citing Dixon v. GEICO, 1

A.3d 921, 925–26 (Pa. Super. 2010).9

       Here, the question of whether Miller represents a watershed rule has

been addressed by our Supreme Court.                 See Cunningham, supra at 10.

Noting    that    the    United     States     Supreme     Court    has   limited   the

watershed/bedrock exception, the second Teague exception, “to ‘sweeping’

changes on the order of Gideon v. Wainwright, 372 U.S. 335 [] (1963);”

the Cunningham Court concluded that “modifications of a less broadscale

nature, while they may be very important, simply do not require

retroactive      application,      under       the    second   Teague     exception.”

Cunningham, supra at 10 (emphasis added).

       The Cunningham Court cited Whorton v. Bockting, 549 U.S. 406,

421 (2007) (holding decision in Crawford v. Washington, 541 U.S. 36

(2004), is not retroactive to cases already final on direct review, under rules
____________________________________________


9
  For similar reasons, we decline to fault counsel, or deny her permission to
withdraw, on speculation that the conclusion or the reasoning of our
Supreme Court in Cunningham may change in the future. “An attorney
cannot be deemed ineffective for failing to anticipate a change or
development in the law.” Commonwealth v. Hill, 2014 WL 6609012, at
*15 (Pa. filed November 21, 2014) (citation omitted).



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set out in Teague). The Whorton Court observed that “Gideon . . . [is]

the only case that we have identified as qualifying under this exception[.]”

Whorton, supra at 407 (emphasis added).

     Applying these principles, the Whorton Court concluded:

            The Crawford rule also did not “alter our understanding of
     the bedrock procedural elements essential to the fairness of a
     proceeding.” . . . [T]his requirement cannot be met simply by
     showing that a new procedural rule is based on a “bedrock”
     right.   We have frequently held that the Teague bar to
     retroactivity applies to new rules that are based on “bedrock”
     constitutional rights. Similarly, that a new procedural rule is
     “fundamental” in some abstract sense is not enough.

Id. at 420-21 (some citations, punctuation and internal quotation marks

omitted). Here, similarly, there is no reasonable doubt about our Supreme

Court’s conclusion in Cunningham on the non-retroactivity of Miller.

     Our reasoning differs from that of the PCRA court. However, we may

affirm the PCRA court’s order on any basis. See Commonwealth v. Doty,

48 A.3d 451, 456 (Pa. Super. 2012).

     Order affirmed. Petition to withdraw granted.

     President Judge Gantman joins the Opinion.

     Judge Bender files a Concurring Opinion.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


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J-S58016-14




Date: 12/19/2014




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