Opinion
J-S60012-15 J-S60013-15 No. 3323 EDA 2014 No. 3333 EDA 2014
03-23-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. IVORY KING Appellant COMMONWEALTH OF PENNSYLVANIA Appellee v. JOHN LEKKA Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order November 7, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0003727-1978 Appeal from the PCRA Order November 7, 2014
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0001295-1978 BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J. CONCURRING AND DISSENTING MEMORANDUM BY LAZARUS, J.:
I concur. I believe that we should follow the procedure established by our Pennsylvania Supreme Court, in its per curiam orders, to dispose of currently pending PCRA petitions raising the Miller issue that were filed prior to the Montgomery decision. Specifically, the orders denying PCRA relief in those cases should be reversed and the cases remanded to permit amendment of those petitions to allege the section 9545(b)(1)(iii) exception in light of Montgomery .
Although we have chosen to follow the procedure annunciated in our Supreme Court's per curiam orders, we are cognizant of our Court's decision, Commonwealth v. Secreti , 2016 PA Super 28 (Pa. Super. filed Feb. 9, 2016), that applied Montgomery to cases currently on collateral appeal, like the instant case. Specifically, in Secreti , our Court held that the Miller rule of law "has been held" to be retroactive for purposes of collateral review as of the date of the Miller decision on June 25, 2012. Moreover, the Court held that the date of the Montgomery decision would control for purposes of the 60-day rule in section 9545(b)(2)(iii). Ultimately, the Court reversed the PCRA court's order denying defendant relief, vacated defendant's judgment of sentence, and remanded for resentencing. We find the procedure advanced in the Supreme Court's orders more aligned with its established procedures. See Commonwealth v. Cabeza , 469 A.2d 146 (Pa. 1983) (while appellate courts typically apply law in effect at time of appellate decision, principle applies in direct appeal context, not to cases on collateral appeal); Commonwealth v. Abdul-Salaam , 812 A.2d 497 (Pa. 2002) (holding that "[an] action has already occurred, i.e., 'that court' has already held the new constitutional right to be retroactive to cases on collateral review[;]" in writing section 9545(b)(2)(iii), legislature clearly intended the right was already recognized and held to be retroactive at time petition was filed); Commonwealth v. Lark , 746 A.2d 585 (Pa. 2000) (holding that second appeal cannot be taken when another proceeding of the same type is already pending; subsequent PCRA petition must be filed within 60 days of date of order which finally resolves the previous PCRA petition because this is first "date the claim could have been presented.").
In an attempt to permit nunc pro tunc amendment of these pending petitions so that petitioners can take advantage of the Montgomery ruling, the Supreme Court specifically ordered that:
[t]o the extent necessary, leave is to be granted to amend the post-conviction petition to assert the jurisdictional provision of the Post Conviction Relief Act extending to the recognition of constitutional rights by the Supreme Court of the United States which it deems to be retroactive. See 42 Pa.C.S. § 9545(b)(1)(iii).
I also write separately to highlight the fact that the recent decision by the United States Supreme Court, Montgomery v. Louisiana , No. 14-280, 2016 U.S. LEXIS 862 at *---- (U.S. Jan. 25, 2016), has resulted in an unprecedented situation. Appellants requesting collateral relief pursuant to Miller v. Alabama , 132 S.Ct. 2455 (2012), have been denied collateral relief on the grounds that our Pennsylvania Supreme Court had decided that Miller was not to be applied retroactively. See Commonwealth v. Cunningham , 81 A.3d 1 (Pa. 2013). Had Montgomery been the law at the time the petition was filed, however, that petitioner would have been entitled to collateral relief.
See Commonwealth v. Jones , Jr., No. 947 MAL 2015 (per curiam order) (Pa. filed Feb. 12, 2016); Commonwealth v. Buli , 876 MAL 2015 (per curiam order) (Pa. filed Feb. 12, 2016); Commonwealth v. Christina , 183 WAL 2015 (Pa. filed Feb. 11, 2016); Commonwealth v. Phelps , 678 MAL 2015 (Pa. filed Feb. 11, 2016).
While our appellate courts typically apply the law in effect at the time of the appellate decision, this principle applies in the direct appeal context, not to cases on collateral appeal. See Cabeza , supra. In the context of untimely PCRA petitions invoking the newly-recognized constitutional right exception set forth in 42 Pa.C.S. § 9545(b)(1)(iii),3 our Supreme Court determined that the language "has been held by that court to apply retroactively" means that:
[T]he action has already occurred, i.e., "that court" has already held the new constitutional right to be retroactive to cases on collateral review. By employing the past tense in writing this provision, the legislature clearly intended that the right was already recognized [and held to be retroactive] at the time the petition was filed.Abdul-Salaam , supra at 501 (emphasis added). Therefore, any petitions raising Miller , which were filed prior to Montgomery, should not be able to take advantage of the Montgomery holding while those petitions are on collateral appeal.
I believe that the best way for these PCRA petitioners to take advantage of the Montgomery ruling, which is in line with established Supreme Court case law, is to affirm the denial of the current PCRA petition on collateral review and direct the appellant to file a subsequent PCRA petition, raising the claim, within 60 days of the date that our appellate court rules upon the current collateral appeal. Because of the strictures imposed by Cabeza and Abdul-Salaam , this is technically the first "date the claim could have been presented." 42 Pa.C.S. § 9545(b)(2).
This procedure was advanced in Lark , supra , where a petitioner sought to remand his collateral appeal to the trial court for an evidentiary hearing in order to raise new grounds for collateral relief. Acknowledging that "a second appeal cannot be taken when another proceeding of the same type is already pending," id. at 588, the Court held:
[W]hen an appellant's PCRA appeal is pending before a court, a subsequent PCRA petition cannot be filed until the resolution of review of the pending PCRA petition by the highest state court in which review is sought, or upon the expiration of the time for seeking such review. If the subsequent petition is not filed within one year of the date when the judgment became final, then the petitioner must plead and prove that one of the three exceptions to the time bar under 42 Pa.C.S. § 9545(b)(1) applies. The subsequent petition must also be filed within 60 days of the date of the order which finally resolves the previous PCRA petition, because this is the first "date the claim could have been presented." 42 Pa.C.S. § 9545(b)(2).Id.
In employing this practice, petitioners and PCRA courts must be mindful of the 60-day window within which to take advantage of the Montgomery decision. Such time-sensitivity is critical in order for the court to have jurisdiction to retroactively apply the substantive rule of constitutional law espoused in Miller where juvenile homicide offenders shall be considered for parole.3
Moreover, because an amended petition is merely an extension of an existing petition rather than a new and distinct petition, Commonwealth v. Tedford , 781 A.2d 1167, 1171 n.6 (Pa. 2001), these newly amended petitions sent back to incorporate Montgomery are still considered filed prior to the date of the Montgomery decision in violation of Lark and the clear language of section 9545(b)(1)(iii). I also do not believe that Montgomery effectively post-dates Miller so as to transform these petitions into ones where "the right was already recognized [and held to be retroactive] at the time the petition was filed."
For these reasons, I believe that the procedure that conforms most with established case law is to uniformly treat the petitions under the dictates of Lark. That would entail affirming the denial of the current untimely petition and having the petitioner file a new petition, within 60 days of our disposition, raising Montgomery as it applies under section 9545(b)(1)(iii).