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[U] Commonwealth v. Howard

Superior Court of Pennsylvania

March 7, 2014

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
ANTONIO HOWARD Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order of June 6, 2013 In the Court of Common Pleas of Erie County Criminal Division at No.: 311 of 1992

BEFORE: PANELLA, J., OLSON, J., and WECHT, J.

MEMORANDUM

WECHT, J.

Antonio Howard appeals the June 6, 2013 order dismissing his fifth petition for relief pursuant to the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541-46, as untimely. We affirm.

A detailed recitation of the factual and procedural history of this case is unnecessary in light of our disposition. It suffices to note only the following. On June 5, 1992, Howard was convicted by a jury of second-degree murder, robbery, and criminal conspiracy.[1] The convictions arose from the killing of a cab driver who "was lured as though for a fare, directed to a secluded area, and ultimately shot in the right side of the head from close range, apparently as one of the conspirators alighted from the back seat. It was unresolved whether Howard or one of his two accomplices was the shooter." Commonwealth v. Howard, No. 1253 Pitts. 1997, slip op. at 1-2 (Pa.Super. March 30, 1999). Howard was fifteen years old at the time of the murder. On October 14, 1992, Howard was sentenced to life imprisonment on the murder conviction, and a concurrent four to ten year term of imprisonment on the conspiracy conviction. No penalty was imposed on the robbery conviction. On December 3, 1993, we affirmed the judgment of sentence. On November 30, 1994, the Pennsylvania Supreme Court denied Howard's petition for allowance of appeal.

In the subsequent years, Howard filed four PCRA petitions, each of which was unsuccessful at the PCRA court level and on appeal.[2] On July 5, 2012, Howard filed his fifth PCRA petition. In the petition, Howard alleged that his mandatory life sentence was unconstitutional pursuant to the United States Supreme Court's recent decision in Miller v. Alabama, 132 S.Ct. 2455 (2012), wherein the Supreme Court held that "[m]andatory 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.'" Id. at 2460. The PCRA court appointed counsel, who subsequently filed a motion to withdraw as counsel and an application for a Grazier[3] hearing, at Howard's specific request. On November 8, 2012, the PCRA court held a Grazier hearing and, by order dated the same day, found that Howard knowingly and voluntary waived his right to be represented by counsel and granted Howard's request to proceed pro se.

On May 10, 2013, the PCRA court issued an opinion and notice of its intent to dismiss Howard's fifth PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907(1). In the opinion, the PCRA court concluded that Miller does not apply retroactively. As such, the court determined that Howard could not satisfy the newly recognized, and retroactively held, constitutional right exception to the PCRA's jurisdictional time limitation, see 42 Pa.C.S. § 9545(b)(1)(iii), and that Howard's petition was untimely. On May 23, 2013, Howard filed a response to the PCRA court's Rule 907 notice. On June 6, 2013, the PCRA court entered a final order dismissing Howard's petition as untimely.

On June 24, 2013, Howard filed a notice of appeal. The PCRA court did not direct Howard to file a concise statement of errors pursuant to Pa.R.A.P. 1925(b), and Howard did not file one. Nonetheless, the PCRA court issued a memorandum opinion pursuant to Pa.R.A.P. 1925(a), wherein the court adopted its May 10, 2013 opinion in support of its Rule 907 notice.

Howard raises three questions for our review:

A. In light of Miller v. Alabama, 132 S.Ct. 2455 (2012), did the trial court err in imposing a life sentence without parole upon a juvenile offender convicted of second-degree murder?
B. Does the holding in Miller v. Alabama, 132 S.Ct. 2455 (2012), that a juvenile convicted of a homicide offense cannot be sentenced to life imprisonment without [parole, ] unless there is consideration of mitigating circumstances by a judge or jury, apply retroactively to an inmate serving such a sentence when the inmate has exhausted his direct appeal rights and is proceeding under the [PCRA]?
C. As Miller v. Alabama, 132 S.Ct. 2455 (2012) must be given retroactive effect, is a new sentencing hearing, where the sentencer can impose a sentence for any lesser included offenses as well as all non-merged offenses the appropriate remedy under the [PCRA] for a defendant who was sentenced to a mandatory term of life imprisonment without the possibility of ...

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