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[U] Commonwealth v. Crawford

Superior Court of Pennsylvania

March 12, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
KENNETH CARL CRAWFORD III Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order May 1, 2013 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0001480-2000.

BEFORE: BOWES, OLSON AND FITZGERALD, JJ. [*]

JUDGMENT ORDER

PER CURIAM.

Appellant, Kenneth Carl Crawford III, appeals from the order entered on May 1, 2013 dismissing his petition filed under the Post-Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We are constrained to affirm.

Appellant presents one issue for our review, "Do Graham v. Florida, [560 U.S. 48] (2010), [and] Miller v. Alabama 132 S.Ct. 2455 (2012) . . . apply retroactively to cases on collateral review for individuals serving life without parole sentences?" Appellant's Brief at 3. Prior to addressing this issue, we consider Appellant's motion to remand this matter to the PCRA court to permit the filing of a second amended PCRA petition. Appellant contends that our Supreme Court's opinion in Commonwealth v. Cunningham, 81 A.3d 1 (Pa. 2013), and Chief Justice Castille's concurring opinion in Cunningham, "proposed new grounds to secure the substantive rights at issue and the retroactive effect of Miller in Pennsylvania post-conviction proceedings." Appellant's Motion to Remand, 12/27/13, at 3. Appellant therefore requests that we remand this case to enable him to amend his PCRA petition to pursue those grounds. This Court has held that such amendment would be futile. See Commonwealth v. Seskey, 2014 WL 631244, *3-5 (Pa.Super. Feb. 19, 2014) (any PCRA petition raising claims based upon Miller and/or Cunningham does not meet the timeliness exception of 42 Pa.C.S.A. § 9545(b)(1)(iii)). As remand for amendment of Appellant's petition would be futile, we deny the motion to remand and instead turn to the merits of Appellant's lone issue on appeal.

Counsel for Appellant correctly noted in their motion to remand that after the briefs were filed in this case our Supreme Court determined that Miller does not apply retroactively. Cunningham, 81 A.3d at 11. "It is beyond peradventure that [this] Court must follow [our] Supreme Court's mandates." Mut. Ben. Ins. Co. v. Politopoulos, 75 A.3d 528, 534 (Pa.Super. 2013) (internal alteration and citation omitted). As such, we must conclude that Miller did not announce a new rule of constitutional law for purposes of the PCRA. Thus, Appellant's petition is untimely as it was filed more than one year from the date his judgment of sentence became final. See 42 Pa.C.S.A. § 9545(b)(1). Therefore, the PCRA court properly dismissed Appellant's petition.

Motion to remand denied. Order affirmed.


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