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[U] Commonwealth v. McClellan

Superior Court of Pennsylvania

February 18, 2014



Appeal from the PCRA Order July 2, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0208241-1998




Willie McClellan appeals, pro se, from the order entered July 2, 2013, in the Philadelphia County Court of Common Pleas denying him relief on two petitions: (1) a petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq., and (2) a petition for writ of habeas corpus construed by the PCRA court to be another PCRA petition. McClellan seeks relief from the judgment of sentence of life imprisonment, imposed on April 9, 2001, following his guilty plea to two counts of first degree murder and one count of possession of an instrument of crime (PIC).[1] On appeal, McClellan argues the PCRA court erred (1) in determining that the decision in Miller v. Alabama, __U.S. __, 132 S.Ct. 2455 (2012), was not applicable to overcome the untimeliness of his PCRA petition, and (2) in treating his petition for writ of habeas corpus as a PCRA petition. For the reasons set forth below, we affirm.

The facts and procedural history of this case were aptly summarized by a panel of this Court affirming the denial of his first PCRA petition:

The allegations against McClellan involved disturbing conduct. On January 7, 1998, McClellan stuffed socks in the mouths of his eight year old daughter, Patrice, and five year old son, Willie, then brutally and repeatedly stabbed them to death with a butcher knife while they lay in their beds. McClellan was subsequently charged with two counts of murder and one count of possession of an instrument of crime ("PIC").
On June 8, 1999, following a day and a half of trial before a death penalty qualified jury, McClellan changed his plea from not guilty to guilty of two counts of first-degree murder and one count of PIC. In exchange for his plea, the prosecution withdrew its request for the death penalty. McClellan waived a pre-sentence investigation and was immediately sentenced to two concurrent life sentences for the murder charges and two and one-half (2 ½) to five (5) years on the PIC charge.
Surprisingly, just a few days later, on June 15, 1999, counsel filed a motion to withdraw McClellan's guilty plea and also requested leave to withdraw as counsel. Counsel was permitted to withdraw and new counsel was appointed to represent McClellan. On June 17, 1999, the trial court vacated its previously imposed sentence pending disposition of the motion to withdraw the guilty plea. Subsequently, on October 18, 1999, a hearing was held. On November 24, 1999, the trial court denied McClellan's motion to withdraw his guilty plea and resentenced him, changing the sentence to two consecutive terms of life imprisonment and a concurrent term of one and one-half (1½) to three (3) year sentence on the PIC charge. N.T. Sentencing, 11/24/1999, at 20-21.
On December 3, 1999, McClellan filed a direct appeal from the judgment of sentence, which this Court affirmed in a memorandum opinion filed on February 23, 2001. Commonwealth v. McClellan, [776 A.2d 1007] 148 EDA 2000 (Pa.Super. 2001) (per curiam). McClellan did not seek an allowance of appeal from the Supreme Court. On October 12, 2001, McClellan filed a PCRA petition[.]

Commonwealth v. McClellan, 876 A.2d 466 [57 EDA 2204] (Pa.Super. 2005) (unpublished memorandum at 1-3) (footnotes omitted), appeal denied, 897 A.2d 456 (Pa. 2006).

The PCRA court subsequently dismissed McClellan's petition without conducting an evidentiary hearing. McClellan filed an appeal to this Court, which affirmed the order denying relief, and the Pennsylvania Supreme Court subsequently denied his petition for allowance of appeal. See id.

On August 10, 2012, McClellan filed the instant, pro se PCRA petition, his second, asserting that his mandatory sentence of life imprisonment is unconstitutional pursuant to the United States Supreme Court's decision in Miller, supra. While that petition was pending, on April 29, 2013, McClellan also filed a petition for writ of habeas corpus. The PCRA court construed McClellan's petition for writ of habeas corpus as another PCRA petition. Accordingly, on May 29 and June 4, 2013, the court issued notice to McClellan of its intent to dismiss both petitions without first conducting an evidentiary hearing pursuant to Pa.R.Crim.P. 907. On June 18, 2013, McClellan filed a reponse to the court's Rule 907 notice. Thereafter, on July 2, 2013, the PCRA court entered an order dismissing both petitions as untimely filed. This appeal follows.

First, McClellan challenges the PCRA court's finding that the decision in Miller is inapplicable to the facts of his case. Specifically, McClellan argues that the Miller decision is applicable to him pursuant to the doctrine of equal protection, and, therefore, he has pled and proved an exception to the PCRA's time bar.

McClellan concedes that his PCRA petition was untimely filed.[2] We note that the timeliness requirements are jurisdictional in nature, and that we may not consider the substantive merits of an untimely appeal unless the petitioner pleads and proves an exception to the time bar. See Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa. 2013) (citations omitted); 42 Pa.C.S. § 9545(b)(1). However, McClellan argues that "the Miller Court has recognized a new constitutional right, " so that his petition meets one of the excpetions to the PCRA's time-bar.

Pursuant to 42 Pa.C.S. § 9545, an otherwise untimely petition is not time-barred if a petitioner can plead and prove that, inter alia,

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 period provided in this section and has been held by that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(iii). Further, any petition invoking this exception must be filed "within 60 days of the date the claim could have been presented." Id. at § 9545(b)(2).

McClellan filed his present petition on August 10, 2012, less than 60 days after the Miller decision was filed on June 25, 2012. Therefore, we must determine whether the United States Supreme Court in Miller recognized a new constitutional right which is applicable to McClellan, and which the Court held should be applied retroactively. See Commonwealth v. Garcia, 23 A.3d 1059, 1063 (Pa.Super. 2011) (To obtain relief pursuant to Section 9545(b)(1)(iii), "a petitioner must prove that there is a 'new' constitutional right and that the right 'has been held' by that court to apply retroactively.") (quotation omitted), appeal denied, 38 A.3d 823 (Pa. 2012).

The PCRA court determined that, regardless of whether the Miller Court recognized a new constitutional right to be applied retroactively, the decision was not applicable to McClellan. See PCRA Court Opinion, 7/2/2013, at 4. We agree.

In Miller, the Supreme Court held that "mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.'" Miller, 123 S.Ct. at 2460 (emphasis supplied). Although the Court made clear that it was not foreclosing a trial court's ability to impose a life sentence upon a juvenile convicted of murder, it imposed a requirement upon the trial court to "take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Id. at 2469. Therefore, it was the mandatory sentencing scheme that the Supreme Court deemed unconstitutional when applied to juveniles, holding that "a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles." Id. at 2475.

In the present case, McClellan concedes he was 42 years old at the time he committed the murders. As the PCRA Court noted in its opinion, "[t]he Miller holding specifically limited itself to juveniles eighteen years of age and younger who were sentenced to life without parole for committing the crime of murder." We agree. See Miller, 132 S.Ct. at 2469 ("We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.") (emphasis supplied). The Miller decision simply does not apply to the facts of McClellan's case.[3]

McClellan attempts to circumvent this obvious obstacle to relief by arguing the Equal Protection Clause mandates that the holding of the Miller Court apply to adult defendants as well as juvenile defendants. Essentially, he claims that because juvenile defendants charged with first degree murder are charged as adults, "there is no distinction between [a] 14 year old who was tried and convicted as an adult, and an older man who was also tried and convicted as an adult." McClellan's Brief at 8. Therefore, "[t]o treat them differently, … must be a violation of Equal Protection." Id.

This Court recently rejected a similar argument in Commonwealth v. Cintora, 69 A.3d 759 (Pa.Super. 2013), appeal denied, __ A.3d __, 2013 WL 6773507 (Pa. Dec. 4, 2013). In that case, the co-defendants, who were 19 and 21 years old at the time they committed second degree murder, invoked the Miller decision in an attempt to overcome their untimely filed PCRA petitions. Although they recognized that they were not under the age of 18 at the time they committed the crime, they argued that the holding of Miller was applicable pursuant to the Equal Protection Clause. This Court disagreed:

Appellants … contend that because Miller created a new Eighth Amendment right, that those whose brains were not fully developed at the time of their crimes are free from mandatory life without parole sentences, and because research indicates that the human mind does not fully develop or mature until the age of 25, it would be a violation of equal protection for the courts to treat them or anyone else with an immature brain, as adults. Thus, they conclude that the holding in Miller should be extended to them as they were under the age of 25 at the time of the murder and, as such, had immature brains. However, we need not reach the merits of Appellants' argument, as their contention that a newly-recognized constitutional right should be extended to others does not render their petition timely pursuant to section 9545(b)(1)(iii).

Id. at 764 (citation omitted and emphasis in original). Accordingly, McClellan is similarly entitled to no relief.

In his second issue, McClellan argues the PCRA court erred in treating his petition for writ of habeas corpus as a PCRA petition. McClellan quotes the one issue raised in the petition as follows:

The [petitioner] was denied his right to due process and equal protection of the law where the judge engaged in conduct which constitute[s] a neglect or failure to perform the duties of office which resulted in a guilty plea where the record demonstrates was so fundamentally unfair as to amount to a denial of due process or other constitutional rights.

McClellan's Brief at 14, quoting Petition for Writ of Habeas Corpus Subjiciendum at 18. Fundamentally, McClellan argues the trial court failed to ensure that he entered his guilty plea knowingly and voluntarily.

The PCRA is clear that it is "the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies …, including habeas corpus and coram nobis." 42 Pa.C.S. § 9542. Therefore, "if the underlying substantive claim is one that could potentially be remedied under the PCRA, that claim is exclusive to the PCRA." Commonwealth v. Pagan, 864 A.2d 1231, 1233 (Pa.Super. 2004), cert. denied, 546 U.S. 909 (2005) (emphasis in original). Here, since McClellan's request for relief is grounded upon a claim of "a plea of guilty unlawfully induced, " the PCRA court properly determined that McClelland's claim implicated the PCRA. See 42 Pa.C.S. § 9543(a)(2)(iii). Accordingly, no relief is warranted on this claim.

Order affirmed.

Judgment Entered.

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