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Commonwealth of Pennsylvania v. Hubert Lester Michael

November 5, 2012

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
HUBERT LESTER MICHAEL, JR., APPELLANT COMMONWEALTH OF PENNSYLVANIA; PENNSYLVANIA DEPARTMENT OF CORRECTIONS; HONORABLE TOM CORBETT, GOVERNOR, COMMONWEALTH OF PENNSYLVANIA; HONORABLE JIM CAWLEY, LIEUTENANT GOVERNOR, CHAIRMAN BOARD OF PARDONS; HONORABLE LINDA L. KELLY, ATTORNEY GENERAL, MEMBER, BOARD OF PARDONS; LOUISE B. WILLIAMS, VICTIM REPRESENTATIVE, MEMBER, BOARD OF PARDONS; RUSSELL A. WALSH, PH.D., PSYCHOLOGIST, MEMBER, BOARD OF PARDONS; HARRIS GUBERNICK, CORRECTIONS EXPERT, MEMBER, BOARD OF PARDONS; AND CAROL AICHELE, SECRETARY, COMMONWEALTH OF PENNSYLVANIA, APPELLEES
v.
HUBERT MICHAEL, APPELLANT



Per curiam.

Notice of Appeal and Jurisdictional Statement, Treated as Application for Relief per Pa.R.A.P. 3316, 1702(d), and 123 Notice of Appeal and Jurisdictional Statement, Treated as Application for Relief per Pa.R.A.P. 3316, 1702(d), and 123 Applicant, Hubert L. Michael, Jr., seeks to challenge refusals by the Court of Common Pleas of York County and the Commonwealth Court to enter orders staying his execution, scheduled for November 8, 2012.

ORDER

Some eighteen years ago, Applicant killed sixteen-year-old Trista Eng. In 1995, he pled guilty to first-degree murder and was sentenced to death. He has exhausted avenues and/or opportunities for post-conviction merits review in the state and federal court systems.

On October 12, 2012, Applicant lodged a document in the common pleas court captioned "Expedited Motion for Order Granting Access for Defense Experts to Evaluate Petitioner" (the "Motion for Access"). In this stand-alone motion, he explained that he had initiated clemency proceedings before the Board of Pardons. Applicant asserted that he required the assistance of seven mental health and/or mitigation professionals and a court order directing the Department of Corrections to allow forensic interviews of Applicant by these experts. Applicant referenced concurring and dissenting opinions of Justices of the United States Supreme Court, which he contended established a right to due process and procedural safeguards in clemency proceedings. See Motion for Access at ¶ 13 (citing Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 288 (1998) (O'Connor, J., concurring); id. at 291-92 (Stevens, J., concurring and dissenting)). In response, the Commonwealth asserted that the court lacked jurisdiction to award the requested relief, not the least because Section 9545(c) of the Post Conviction Relief Act forbids a stay of execution in the absence of a pending post-conviction relief petition meeting the requirements of the enactment and, where such petition is a serial one, a strong showing of likelihood of success on the merits. See 42 Pa.C.S. § 9545(c)(1), (2); Commonwealth v. Morris, 822 A.2d 684, 693-94 (Pa. 2003). Furthermore, the Commonwealth contended that clemency proceedings implicate, at most, very minimal due process rights in prisoners, which were being accommodated through the conventional process reflected in prevailing administrative regulations. Finally, it was the Commonwealth's position that Applicant's motion was dilatory and was advanced primarily to cause delay.

On October 16, 2012, the common pleas court denied the Motion for Access without prejudice and transferred the matter to the Commonwealth Court, expressing the belief that the motion sounded in mandamus appropriate to the Commonwealth Court's jurisdiction. Applicant lodged an appeal.

In the Commonwealth Court, Applicant filed a lengthy "Consolidated Petition for Review, for Writ of Mandamus, for Injunctive Relief, for Extraordinary Relief and for Emergency Stay of Execution." In addition to setting forth reasons supporting his request for access to interviews with the professionals identified in his previous motion, this petition also requested that Applicant be granted access to information concerning him provided to the Board of Pardons by the common pleas court, the Department of Corrections, and others; that Applicant's counsel be permitted to interview current and former corrections officers in preparation for the clemency hearing; that the hearing be stayed until these requests were accommodated; and that Applicant's execution be stayed to ensure a fair and meaningful hearing.*fn1

In the Commonwealth Court, the litigants agreed that the authority to grant access to Applicant rested in the common pleas court, per Section 4303 of the Prisons and Parole Code, see 61 Pa.C.S. § 4303 (prescribing that access to a prisoner subject to a pending warrant of execution is strictly limited "without an order of the sentencing court"). The Commonwealth Court remanded the matter, in part, to the common pleas court to address Applicant's main access request.

On remand, the common pleas court granted the Motion for Access but refused to direct that the scheduled execution be stayed. Applicant filed a "Superseding Notice of Appeal" accompanied by a jurisdictional statement. The statement summarized the procedural history and set forth three questions for review, as follows:

Whether the Court of Common Pleas should have granted a stay of execution to enable [Applicant] to have meaningful access to mental health experts who could evaluate him and assess whether he suffers from Asperger's Disorder and its effects on his functioning, in order (a) to provide the results to the Board of Pardons in support of his application for executive clemency; and (b) if relevant, to provide the results to the United States District Court for the Middle District of Pennsylvania in support of his motion to reopen the proceedings in that court.

Whether a stay of execution is necessary in that case in the interest of fundamental fairness, where -- through no fault of [Applicant] -- the issue of the proper forum in which to secure an order allowing access for mental health experts was batted back and forth between the Court of Common Pleas and the Commonwealth Court, and once that issue had been resolved, Hurricane Sandy gravely disrupted the ability of experts to reach SCI-Greene and perform the necessary evaluations, thus depriving [Applicant] of the opportunity for a full and meaningful clemency hearing.

Did the Court err in its original ruling in its conclusion that the filing was ex parte and that it lacked jurisdiction to grant access for the experts and a stay of execution?

On November 2, 2012, the common pleas court filed an opinion setting forth the reasoning in support of its order granting access but denying a stay of execution. In terms of the stay matter, the court initially questioned whether it had jurisdiction as no motion was directly before it and in light of Section 9545(c) of the Post Conviction Relief Act. See Commonwealth v. Morris, 771 A.2d 721, 739-40 (Pa. 2001) (holding that "a lower court may not exercise its inherent right to grant a stay except within the confines enumerated by § 9545(c)" of the Post Conviction Relief Act). To the degree that jurisdiction was present, the court reasoned:

A stay is an extraordinary remedy. It is more so when the remedy is sought to be exercised outside of established methods. In the present case, to the extent any stay was requested at all in this Court, the only reasons advanced were to gain more time to prepare for a clemency hearing. There was no substantial showing that even if the proffered expert findings came back in [Applicant's] favor, there would be a substantial likelihood of gaining clemency or otherwise avoiding execution.

Indeed, our examination of the clemency petition filed by [Applicant] which was provided to us by the Board of Pardons, reveals little by way of reasons why clemency should be granted or execution stayed. For the most part, [Applicant] deferred to his lawyers. One substantive statement he made amounted to not being the person he was in 1993. There is no claim of innocence, to the contrary, he offers no reason why he committed the murder. We conclude that the state's interest in finality of the proceedings and, ultimately, the carrying out of a ...


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