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 Entered on December 9, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0006853-1990
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
CONCURRING OPINION BY BENDER, P.J.E.: FILED DECEMBER 19, 2014
While I concur in the Majority’s result, I disagree with the Majority’s
conclusion that Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013),
stands for the blanket proposition that Miller v. Alabama, 132 S.Ct. 2455
(2012), is not retroactive.
Specifically, I believe the Majority’s statement that “the question of
whether Miller represents a watershed rule has been addressed by our
Supreme Court” inaccurately reflects the Supreme Court’s holding in
Cunningham. Majority Opinion at 11. I note that the Cunningham Court
acknowledged that
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*
Retired Senior Judge assigned to the Superior Court.
J-S58016-14
Teague v. Lane[1] delineated a general rule of non-retroactivity
for new procedural, constitutional rules announced by the Court,
… subject to two narrow exceptions. … [T]he exceptions extend
to “rules prohibiting a certain category of punishment for a class
of defendants because of their status or offense,” and
“watershed rules of criminal procedure implicating the
fundamental fairness and accuracy of the criminal proceeding.”
Cunningham, 81 A.3d at 4 (internal citations omitted). The Cunningham
Court then analyzed whether Miller was retroactive pursuant to the first
Teague exception. Ultimately, the Court concluded that “the first Teague
exception does not apply to the Miller rule,” because, “by its own terms, the
Miller holding ‘does not categorically bar a penalty for a class of offenders.’”
Cunningham, 81 A.3d at 10 (internal citations omitted).
Significantly, the Cunningham Court then went on to state: “As to the
second Teague exception, as we have previously noted, Appellant has not
developed his arguments in such terms.” Id. In doing so, the
Cunningham Court acknowledged that the question of whether Miller
represented a so-called “watershed rule of criminal procedure” was not
before them.
The Cunningham Court then questioned whether the United States
Supreme Court would find that Miller presents a watershed rule:
We will say that, given the high importance attached by the
Miller majority to the new rule which it discerned, it seems
possible that some Justices of the United States Supreme Court
may find the rule to be of the watershed variety…. We doubt,
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1
109 S.Ct. 1060 (1989) (plurality).
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however, that a majority of the Justices would broaden the
exception beyond the exceedingly narrow … parameters reflected
in the line of decisions referenced by the Commonwealth.
According to the Court, the exception is limited to “sweeping”
changes on the order of Gideon v. Wainwright;[2]
modifications of a less broadscale nature, while they may be
very important, simply do not require retroactive application,
under the second Teague exception.
Id. at 10.
The Majority interprets this discussion as a holding, stating that “there
is no reasonable doubt about our Supreme Court’s conclusion in
Cunningham on the non-retroactivity of Miller.” Majority Opinion at 12.
However, I believe the Cunningham Court’s discussion regarding the
second Teague exception is dicta. First, the Cunningham Court
acknowledged that the issue of whether Miller represents a “watershed rule”
had not been raised by the appellant. In addition, the Court noted that it
was speculating as to how the United States Supreme Court might rule on
the issue, and it did not purport to undertake its own analysis. Finally, the
Cunningham Court explicitly expressed its uncertainty with regard to how
the United States Supreme Court might theoretically decide the issue. The
Court noted that it “seems possible that some Justices… may find the rule to
be of the watershed variety,” but “doubt[ed] that a majority of the Justices
would” reach that conclusion. Cunningham at 10. Thus, I believe that the
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2
83 S.Ct. 792 (1963) (holding that all indigent defendants charged with
felonies are entitled to appointed counsel).
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question of whether Miller represents a procedural watershed rule requiring
retroactive application has not yet been addressed in this Commonwealth.
Even though the Pennsylvania Supreme Court has not explicitly
foreclosed the possibility that Miller is retroactive under the second Teague
exception, Appellant nonetheless has failed to prove an exception to the
PCRA time bar. Recently, our Court addressed the retroactively-applied
constitutional right exception to the PCRA time bar, noting:
Subsection (iii) of Section 9545[(b)(1)] has two requirements.
First, it provides 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 provided
in this section. Second, it provides that the right “has been
held” by “that court” to apply retroactively. Thus, a petitioner
must prove that there is a “new” constitutional right and that the
right “has been held” by that court to apply retroactively. The
language “has been held” is in the past tense. These words
mean that the 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 at the time the petition was filed.
Commonwealth v. Seskey, 86 A.3d 237, 242-243 (Pa. Super. 2014)
(quoting Commonwealth v. Copenhofer, 941 A.2d 646, 649-650 (Pa.
2007)).
While I believe the question of whether the constitutional right
recognized in Miller represents a “watershed rule” is undecided in
Pennsylvania, our Supreme Court has not yet affirmatively held “in the past
tense” that Miller is retroactive. On these grounds, I am constrained to
conclude that Appellant has failed to prove an exception to the PCRA time
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bar, and this Court is without jurisdiction to consider the merits of his facially
untimely PCRA petition. Accordingly, I concur with the Majority’s disposition
to grant counsel’s petition to withdraw and affirm the order of the trial court
dismissing Appellant’s PCRA petition.
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