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Commonwealth v. Cunningham

Supreme Court of Pennsylvania

October 30, 2013

COMMONWEALTH of Pennsylvania, Appellee
Ian CUNNINGHAM, Appellant.

Argued Sept. 12, 2012.

Resubmitted Aug. 13, 2013.

Appeal from the Judgment of the Superior Court entered on 7/27/09 at No. 1386 EDA 2007 affirming the order entered on 5/8/07 in the Court of Common Pleas, Criminal Division of Philadelphia County at Nos. CP-51-CR-0203131-2000 and CP-51-CR-0203141-2000. Trial Court Judge: Webster D. Keogh, Administrative Judge- Trial Division. Intermediate Court Judges: Susan Peikes Gantman, Judge, Christine Donohue, Judge, Stephen J. McEwen, Jr., President Judge Emeritus.

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Bradley Steven Bridge, Esq., Defender Association of Philadelphia, John P. Cotter, Esq., Cotter & Miller, Philadelphia, Marsha Levick, Esq., Juvenile Law Center, for Ian Cunningham.

Hugh J. Burns, Jr., Esq., Philadelphia District Attorney's Office, for Commonwealth of Pennsylvania.



Justice SAYLOR.

This appeal involves a post-conviction challenge to the imposition of a mandatory sentence of life imprisonment, without the possibility of parole, for a murder committed by a juvenile. Specifically, we are asked to determine whether Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)— which holds that " the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders," id. at __, 132 S.Ct. at 2469— applies retroactively to Appellant's 2002 judgment of sentence, which became final in 2005.

In 1999, Appellant, his codefendant, and two accomplices robbed the occupants of a vehicle at gunpoint. In the course of the robbery, Appellant shot and killed the victim, Daniel Delarge, Jr. At the time, Appellant was seventeen years of age.

In 2002, Appellant was convicted of second-degree murder and related offenses. He received a mandatory sentence of life imprisonment without the possibility of parole, plus a term of imprisonment of 7 1/2 to 15 years. See 18 Pa.C.S. § 1102(b); 61 Pa.C.S. § 6137.[1] On direct appeal, the Superior Court affirmed; this Court denied Appellant's petition for allowance of appeal; and Appellant did not seek discretionary review in the United States Supreme Court.

Appellant timely filed a post-conviction petition claiming, inter alia, that the life-without-parole sentence violated his rights under the Eighth Amendment to the United States Constitution, as extended to the States via the Fourteenth Amendment. As of the initial filing, Appellant relied primarily on Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), which held that the Constitution precludes entry of a judgment of sentence of death for defendants under the age of eighteen at the time of their capital crime or crimes. See id. at 578, 125 S.Ct. at 1200. The post-conviction court denied the petition without an evidentiary hearing, and the Superior Court affirmed in a memorandum opinion, concluding that Roper had no bearing on life sentences. Appellant filed a petition for allowance of appeal, which was held in abeyance pending the disposition of a petition seeking discretionary review before this Court in Commonwealth v. Batts, 79 MAP 2009. The Batts case concerns a challenge to the imposition of a mandatory life sentence for crimes committed by a minor asserted on direct appeal.

The United States Supreme Court issued the Miller decision in June 2012, rendering Pennsylvania's mandatory scheme of life imprisonment for first- and second-degree murder unconstitutional, as applied to offenders under the age of eighteen

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at the time of their crimes. Paralleling Batts and Cunningham in this Court, the federal review implemented by the High Court also encompassed one case in the direct-review chain, Miller v. Alabama, No. 10-9646, and another at a post-conviction stage, Jackson v. Hobbs, No. 10-9647. In a deeply divided opinion, the United States Supreme Court reversed the affirmance of the judgment of sentence and the affirmance of a denial of post-conviction relief, respectively, by state-level reviewing courts. See Miller ,__U.S. at __, 132 S.Ct. at 2475.

In its reasoning, the Miller majority initially explained that its decision turned on proportionality. The Supreme Court previously has found this concept to be central to the Eighth Amendment's prohibition against cruel and unusual punishment; further, the Court admonished that proportionality is to be assessed " less through a historical prism than according to the evolving standards of decency that mark the progress of a maturing society." Id. at __, 132 S.Ct. at 2463 (citations and internal quotation marks omitted).

In its evolving-standards-of-decency evaluation, the Miller majority found two " strands of precedent" to be particularly pertinent. Id. The first of these involves the categorical prohibition of certain punishments for specified classes of offenders.[2] The second requires individualized sentencing for defendants facing the death penalty,[3] and, by extension, other of the most serious penalties. See id. at __, 132 S.Ct. at 2466.

Based on these lines of authority, the Miller majority announced that mandatory life-without-parole sentences, as applied to those under the age of eighteen, offend the Eighth Amendment by preventing sentencing authorities from considering juveniles' " diminished culpability and heightened capacity for change." Id. at __, 132 S.Ct. at 2469; see also id. at __, 132 S.Ct. at 2466 (opining that the " imposition of a State's most severe penalties on juvenile offenders cannot proceed as though they were not children" ); id. at __, 132 S.Ct. at 2467 (observing that " [s]uch mandatory penalties, by their nature, preclude a sentencer from taking account of an offender's age and the wealth of characteristics and circumstances attendant to it" ). See generally Cara H. Drinan, Graham on the Ground, 87 WASH. L. REVV. 51, 62 (2012) (observing that the line of decisions including Miller reflect what legal scholars have termed a developing " youth is different" jurisprudence). The majority also remarked that its decision requires only that a sentencing authority " follow a certain process" before imposing this harshest possible penalty on a juvenile offender— entailing consideration of the offender's youth and attendant

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characteristics. Miller ,__ U.S. at __, 132 S.Ct. at 2471.[4]

Significantly, for present purposes, the Miller majority did not specifically address the question of whether its holding applies to judgments of sentence for prisoners, such as Appellant, which already were final as of the time of the Miller decision. As such, the opinion does not set out the principles governing the High Court's retroactivity jurisprudence.

Briefly, Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (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),[5] subject to two narrow exceptions. This construct was solidified by the majority decision in Penry v. Lynaugh, 492 U.S. 302, 329-30, 109 S.Ct. 2934, 2952-53, 106 L.Ed.2d 256 (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, 109 S.Ct. at 2953,[6] 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, 122 S.Ct. 2147, 2150 n. 5, 153 L.Ed.2d 301 (2002) (quoting Saffle, 494 U.S. at 495, 110 S.Ct. at 1264 (internal quotations omitted)). More recently, in

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Schriro v. Summerlin, 542 U.S. 348, 124 S.Ct. 2519, 159 L.Ed.2d 442 (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, 124 S.Ct. at 2522-23 & 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." (footnotes omitted)).[7]

After Miller's issuance, the litigants incorporated their assessments of the decision into their submissions, along with developed arguments concerning its prospective versus retroactive application. It is Appellant's position that the holding in Miller applies retroactively to prisoners, such as Appellant, serving mandatory life-without-parole sentences for crimes committed as juveniles, even where they have exhausted their direct appeal rights and are proceeding under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546. According to Appellant, the United States Supreme Court unambiguously sanctioned retroactive application in Miller, since it reversed the order of a state appellate court affirming the dismissal of a post-conviction petition in the Jackson case. See Miller ,__ U.S. at __, 132 S.Ct. at 2475. In this respect, Appellant invokes the admonishment that, " once a new rule is applied to the defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who are similarly situated." Teague, 489 U.S. at 300, 109 S.Ct. at 1070; see also id. at 315-16, 109 S.Ct. at 1078 (indicating that " habeas corpus cannot be used as a vehicle to create new constitutional rules of criminal procedure unless those rules would be applied retroactively to all defendants on collateral review through one of the two exceptions we have articulated" (emphasis in original)).[8]

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Additionally, Appellant emphasizes that several of the decisions in the " strands of precedent" upon which the Miller majority relied are applied retroactively. See, e.g., In re Sparks, 657 F.3d 258, 262 (5th Cir.2011) (observing that Atkins, Roper, and Graham each have been held by various courts to be retroactive). Furthermore, it is Appellant's position that Miller articulates a rule of substantive law, which, by its nature, is retroactive. See, e.g., Brief for Appellant at 24 (" The new rule announced in Miller is substantive, and therefore retroactive, because ‘ it alters ... the class of persons that the law punishes.’ " (quoting Schriro v. Summerlin, 542 U.S. at 353, 124 S.Ct. at 2519)). For the same reason, even if Teague's general rule of non-retroactivity were relevant in the first instance, Appellant asserts, the Miller rule meets the first exception to it.[9]

In response to Appellant's lead argument that the holding in Jackson compels retroactive application of Miller in collateral review settings, the Commonwealth observes that the Miller Court did not, in fact, reverse Jackson's judgment of sentence. Rather, the Commonwealth explains, the United States Supreme Court reversed only the judgments of the state appellate courts and remanded " for further proceedings not inconsistent with this opinion." Miller, __ U.S. at __, 132 S.Ct. at 2475. As such, the Commonwealth posits that the state could raise a Teague bar to the new rule in that case to prevent resentencing.[10] Moreover, the Commonwealth stresses that the Miller majority simply did not address retroactivity, and, thus, there simply is no dispositive ruling on the subject. See Brief for the Commonwealth at 14 (citing Goeke v. Branch, 514 U.S. 115, 117, 115 S.Ct. 1275, 1276, 131 L.Ed.2d 152 (1995) (explaining that " a court need not entertain the [ Teague ] defense if the State has not raised it." )).

Furthermore, the Commonwealth highlights: Miller was decided more than six years after Appellant's judgment of sentence became final and nearly three years after the Superior Court affirmed the denial of post-conviction relief; the Teague general rule is one of non -retroactivity; and the exceptions to that rule have been construed narrowly by the courts.

In terms of the first Teague exception, the Commonwealth vigorously refutes Appellant's contention that Miller entirely forecloses any certain category of punishment for juvenile offenders. According to the Commonwealth, Miller, by its express terms, " bans nothing," but, rather, concerned only the manner of determining whether a particular sentence should be imposed. Brief for the Commonwealth at 16. In this regard, the Commonwealth quotes the Miller majority's own depiction of its ruling, as follows:

Our decision does not categorically bar a penalty for a class of offenders or type of crime ... Instead, it mandates only that a sentencer follow a certain process

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— considering an offender's youth and attendant characteristics— before imposing a particular penalty.

Miller, __ U.S. at __, 132 S.Ct. at 2471 (citations omitted; emphasis added); accord id. at __, 132 S.Ct. at 2469 (" [W]e do not consider Jackson's and Miller's alternative argument that the Eighth Amendment requires a categorical bar on life without parole for juveniles, or at least for those 14 and younger." ). In the Commonwealth's view, Appellant's assertion of a categorical bar is tantamount to an exercise in " word games," in its admixture of procedural and substantive aspects of schemes imposing mandatory life sentences for certain classes of murder. Brief for the Commonwealth at 18 n. 8.

The Commonwealth also briefly addresses the second Teague exception for " watershed rules," stressing, in particular, the repeated admonitions of the High Court that such exception is tightly limited. See Brief for the Commonwealth at 14 (citing Whorton v. Bockting, 549 U.S. 406, 417-18, 127 S.Ct. 1173, 1181-82, 167 L.Ed.2d 1 (2007) (indicating that, " in the years since Teague, we have rejected every claim that a new rule satisfied the requirements for watershed status" ), Schriro v. Summerlin, 542 U.S. at 352, 124 S.Ct. at 2523 (relating that " it is unlikely that any [watershed rule] ha[s] yet to emerge" (internal citations omitted)), and Beard v. Banks, 542 U.S. 406, 417, 124 S.Ct. 2504, 2513-14, 159 L.Ed.2d 494 (2004) (" [I]t should come as no surprise that we have yet to find a new rule that falls under the second Teague exception." )).

In terms of Appellant's argument that the retroactive application of cases from the two " strands of precedent" relied upon by the Miller majority compels Miller's own retrospective application, the Commonwealth regards the contention as " legally incoherent." Brief for the Commonwealth at 15; see also id. at 15-16 (" There is no ‘ strands of precedent’ exception to Teague [.]" ). As to cases within the first strand, the Commonwealth rests on its observation that it is the nature of the rules in issue as substantive rules that resulted in retroactive application, whereas, the Commonwealth maintains, the Miller rule is purely a procedural one. With regard to the second strand, the Commonwealth highlights that various cases that require consideration of " the characteristics of a defendant and the details of his offense before sentencing him" are indeed subject to Teague. Id. at 16; accord LAFAVE, 7 CRIM. PROC. § 28.6(e) (" Since Teague, the Court has rejected arguments that other procedural requirements for death sentences [should] be applied retroactively." ).[11]

It is the Commonwealth's core position that Appellant's ...

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