Justia.com Opinion Summary:MAJORITY
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. 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. On direct appeal, the Superior Court affirmed; the Supreme Court denied Appellant’s petition for allowance of appeal; and Appellant did not seek discretionary review in the United States Supreme Court. Appellant then 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. Specifically, the issue before the Pennsylvania Supreme Court in this case was whether “Miller v. Alabama,” (132 S. Ct. 2455 (2012)) applied retroactively to Appellant’s 2002 judgment of sentence, which became final in 2005. 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 at the time of their crimes. Significantly, as pertaining to this case, the Miller majority did not specifically address the question of whether its holding applied to judgments of sentence for prisoners, such as Appellant, which already were final as of the time of the decision. The Pennsylvania Court applied settled principles of appellate review, and found nothing in Appellant’s arguments persuaded it that Miller’s proscription of the imposition of mandatory life-without-parole sentences upon offenders under the age of eighteen at the time their crimes were committed must be extended to those whose judgments of sentence were final as of the time of Miller’s announcement.
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IN THE SUPREME COURT OF PENNSYLVANIA
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, MCCAFFERY, STEVENS, JJ.
COMMONWEALTH OF PENNSYLVANIA,
No. 38 EAP 2012
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-CR0203131-2000 and CP-51-CR-02031412000
ARGUED: September 12, 2012
RESUBMITTED: August 13, 2013
MR. JUSTICE SAYLOR
DECIDED: October 30, 2013
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 Milller v. Alabama, ___
U.S. ___, 132 S. Ct. 2455 (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 7½ 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 lifewithout-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 (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
Under the Juvenile Act, murder is excluded from the definition of delinquent acts
generally adjudicated by juvenile courts.
See 42 Pa.C.S. §§6302, 6322(a).
Accordingly, murder prosecutions are commenced in adult criminal court, subject to the
potential for transfer to juvenile court, upon an appropriate showing by a defendant.
See id. §6322(a).
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imposition of a mandatory life sentence for crimes committed by a minor asserted on
The United States Supreme Court issued the Miller decision in June 2012,
rendering Pennsylvania’s mandatory scheme of life imprisonment for first- and seconddegree murder unconstitutional, as applied to offenders under the age of eighteen 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
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
See id. at ___, 132 S. Ct. at 2463 (citing Kennedy v. Louisiana, 554 U.S. 407, 128 S.
Ct. 2641 (2008) (holding that imposing the death penalty for non-homicide crimes
violates the Eighth Amendment); Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242
(2002) (banning the execution of mentally retarded individuals); Roper, 543 U.S. at 578,
125 S. Ct. at 1200; and Graham v. Florida, 560 U.S. 48, ___, 130 S. Ct. 2011, 2034
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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. REV. 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 characteristics. Miller, ___ U.S. at ___, 132 S. Ct. at 2471.4
(2010) (holding that a life-without-parole sentence violates the Eighth Amendment,
when imposed on a juvenile non-homicide offender)).
See id. at ___, 132 S. Ct. at 2463-64 (citing Woodson v. North Carolina, 428 U.S. 280,
96 S. Ct. 2978 (1976) (plurality) (holding that a North Carolina statute requiring a
mandatory death sentence for first-degree murder violated the Eighth Amendment), and
Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954 (1978) (plurality) (invalidating an Ohio
statute which limited the range of mitigation which could be considered by the
sentencing authority in a capital proceeding)).
The Miller decision subsumes three separate dissenting opinions supported, to various
measures, by four Justices, demonstrating, at the very least, that the evolving norms
discerned by the majority Justices are not universally shared. See, e.g., Miller, ___ U.S.
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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
Briefly, Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989) (plurality),
delineated a general rule of non-retroactivity for new procedural, constitutional rules
announced by the Court, W AYNE 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
at ___, 132 S. Ct. at 2477 (Roberts, C.J., joined by Scalia, Thomas, and Alito, JJ.,
dissenting) (“Put simply, if a 17-year-old is convicted of deliberately murdering an
innocent victim, it is not ‘unusual’ for the murderer to receive a mandatory sentence of
life without parole. That reality should preclude finding that mandatory life imprisonment
for juvenile killers violates the Eighth Amendment.”).
In a joining concurrence, Justice Breyer, joined by Justice Sotomayor, took the position
that the federal constitution requires a determination that the defendant “killed or
intended to kill” the victim before the State may seek even discretionary imposition of a
life-without-parole sentence. See Miller, ___ U.S. at ___, 132 S. Ct. at 2475-77 (Breyer,
J., concurring). The opinion reflects a concern that strict application of felony-murder
and transferred-intent theories may produce an untenable mismatch between culpability
and punishment as applied to individuals under the age of eighteen. See id.
There is no dispute in the present appeal that Miller embodies a new constitutional
rule. See Teague 489 U.S. at 301, 109 S. Ct. at 1070 (“In general . . . a case
announces a new rule when it breaks new ground or imposes a new obligation on the
States or the Federal Government” or “was not dictated by precedent existing at the
time the defendant’s conviction became final” (emphasis in original)); see also Graham
v. Collins, 506 U.S. 461, 467, 113 S. Ct. 892, 898 (1993) (explaining that “unless
reasonable jurists hearing [a] petitioner’s claim at the time his conviction became final
‘would have felt compelled by existing precedent’ to rule in his favor, we are barred from
doing so now” (quoting Saffle v. Parks, 494 U.S. 484, 488, 110 S. Ct. 1257, 1260
(1990)). See generally LAFAVE, 1 CRIM. PROC. §2.11(e) (“Under a long line of Teague
progeny, any reading of Supreme Court precedent that is more expansive than what
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construct was solidified by the majority decision in Penry v. Lynaugh, 492 U.S. 302,
329-30, 109 S. Ct. 2934, 2952-53 (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
(2002) (quoting Saffle, 494 U.S. at 495, 110 S. Ct. at 1264 (internal quotations
More recently, in Schriro v. Summerlin, 542 U.S. 348, 124 S. Ct. 2519
(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
was ‘dictated’ by that precedent – i.e., any reading beyond the narrowest reasonable
reading of that precedent – can readily be viewed as a ‘new rule.’” (footnote omitted)).
As developed below, however, the litigants differ concerning whether Miller’s effect is
substantive versus procedural.
The first Teague exception also extends to new rules placing certain primary conduct
beyond the State’s power to punish at all. See Penry, 492 U.S. at 330, 109 S. Ct. at
One effect of this merger is to solidify, and narrow, the range of matters which may be
denominated as substantive. Such limitation may be salutary in terms of enhancing the
accessibility and certainty of retroactivity doctrine, see generally Laudenberger v. Port
Auth., 496 Pa. 52, 56, 436 A.2d 147, 150 (1981) (remarking, albeit in a different context,
that the “attempt to devise a universal principle for determining whether a rule is
inherently procedural or substantive in nature has met with little success in the history of
[J-68-2013] - 6
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 lifewithout-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
our jurisprudence”). It seems problematic, to this author at least, to the degree that it
excludes matters which otherwise appear to have a potent substantive dynamic (under
the more conventional understanding of the word “substantive”).
In this regard, to some degree, modern application of the Teague doctrine may be
viewed, by some, as more an exercise in (perhaps necessary) line drawing than as a
precise demarcation between rules which are innately substantive versus procedural in
character, or as an effort to address the treatment of the vast range of rules having both
attributes in varying degrees.
Appellant also relies upon Tyler v. Cain, 533 U.S. 656, 121 S. Ct. 2478 (2001), as
does the Commonwealth. While the majority opinion in Tyler contains numerous
statements and explanations concerning retroactivity, it arose in the context of the limits
[J-68-2013] - 7
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
on successive habeas corpus petitions imposed by the Antiterrorism and Effective
Death Penalty Act of 1996, 110 Stat. 1214 (the “AEDPA”). See Tyler, 533 U.S. at 660,
121 S. Ct. at 2481. Such enactment substantially curtails the justiciability of serial
petitions, subject to a few exceptions, including for claims that “rel[y] on a new rule of
constitutional law, made retroactive to cases on collateral review by the Supreme Court,
that was previously unavailable.” 28 U.S.C. §2244(b)(2)(A) (emphasis added).
We find it unnecessary, for purposes of the present appeal, to decipher if, or to what
extent, the High Court’s statements concerning the effect of the AEDPA upon serial,
federal habeas corpus claims impact upon the application of the judicially crafted
Teague construct as applied in the setting of a state post-conviction petition.
Notably, while Appellant alludes to the second Teague exception in discussing the
jurisprudence of the United States Supreme Court, he does not advance any argument
that such exception applies to the rule of law announced in Miller.
[J-68-2013] - 8
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 (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
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 – considering an
offender’s youth and attendant characteristics – before
imposing a particular penalty.
As it turns out, the state did not do so in Jackson, but, rather, conceded retroactivity.
See Jackson v. Norris, ___ S.W.3d ___, 2013 WL 1773087 (Ark. Apr. 25, 2013). Given
this concession, the Arkansas Supreme Court did not perform a principled Teague
analysis, which is our task here.
[J-68-2013] - 9
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 (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 (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,
[J-68-2013] - 10
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 claim must be decided
under the law as it stood at the time his conviction became final in 2005.
Both parties have presented post-submission communications, with Appellant
furnishing copies of recent decisions finding Miller to be retroactive, see, e.g., State v.
Ragland, 836 N.W.2d 107 (Iowa 2013); Jones v. State, ___ So. 3d ___, 2013 WL
3756564 (Miss. Jul. 18, 2013); People v. Williams, 982 N.E.2d 181 (Ill. App. Ct. 2012);
People v. Morfin, 981 N.E.2d 1010 (Ill. App. Ct. 2012), and the Commonwealth
pinpointing decisions finding Miller to be non-retroactive, see, e.g., In re Morgan, 713
F.3d 1365 (11th Cir. 2013); Chambers v. State, 831 N.W.2d 311 (Minn. 2013); Craig v.
Cain, No. 12-30035, slip op., 2013 WL 69128; People v. Carp, 828 N.W.2d 685 (Mich.
See, e.g., Beard v. Banks, 542 U.S. at 419-20, 124 S. Ct. at 2515 (holding that an
Eighth Amendment capital sentencing rule invalidating instructions that prevent some
jurors from considering mitigating evidence was new and inapplicable on collateral
review per Teague); Graham v. Collins, 506 U.S. at 463, 113 S. Ct. at 895 (declining to
“decide whether the jury that sentenced [a prisoner] to death was able to give effect,
consistent with the Eighth and Fourteenth Amendments, to mitigating evidence of [the
prisoner’s] youth, family background, and positive character traits,” because doing so
would require retrospective application of a new rule, contrary to Teague). See
generally Craig v. Cain, No. 12-30035, slip op., 2013 WL 69128, at *2 (5th Cir. Jan. 4,
2013) (explaining that “the Supreme Court has denied retroactive application of
prohibitions against weighing invalid aggravating circumstances in certain
circumstances, imposition of a death sentence by a jury that has been led to believe
responsibility for determining the appropriateness of a death sentence rests elsewhere,
and capital-sentencing schemes that foreclose a jury from considering all mitigating
[J-68-2013] - 11
Ct. App. 2012); Geter v. State, 115 So. 3d 375 (Fla. App. 2012). Our review of the legal
issues presented is plenary.
As a threshold matter, we reiterate that Appellant’s position that we are obliged to
apply Miller retroactively is based solely upon retroactivity principles applied by the
United States Supreme Court in conjunction with its development of federal
This limitation is significant, because the High Court has
determined that Teague does not limit the authority of state courts to provide remedies
for violations deemed non-retroactive under Teague. See Danforth v. Minnesota, 552
U.S. 264, 282, 128 S. Ct. 1029, 1042 (2008).
This Court, however, generally has looked to the Teague doctrine in determining
retroactivity of new federal constitutional rulings. See, e.g., Commonwealth v. Hughes,
581 Pa. 274, 306-10, 865 A.2d 761, 780-82 (2004). Certainly, this practice is subject to
potential refinement, since “the Teague rule of nonretroactivity was fashioned to achieve
the goals of federal habeas while minimizing federal intrusion into state criminal
proceedings.” Danforth, 552 U.S. at 280, 128 S. Ct. at 1041. Accordingly, the Teague
doctrine is not necessarily a natural model for retroactivity jurisprudence as applied at
the state level. See, e.g., Commonwealth v. Bracey, 604 Pa. 459, 486, 986 A.2d 128,
144 (2009) (recognizing that “a more sophisticated analysis” may be required on state
collateral review in some circumstances); see also supra note 7 (alluding to a few
potential criticisms of Teague and its progeny).
Our present, default practice of proceeding no further than Teague requires as a
matter of federal constitutional law is, in part, a function of the arguments which have
been presented to us, where, as here, the litigants have not provided developed
argumentation to assist in the fashioning of any broader retroactivity principles.
Moreover, state judges who may be circumspect about evolving normative
[J-68-2013] - 12
pronouncements of five of nine Justices – which forcefully are rejected by four others –
may be reluctant to apply those standards more broadly than is absolutely required. Cf.
Commonwealth v. Sanchez, 614 Pa. 1, 70, 36 A.3d 24, 66 (2011) (reflecting a
reluctance, in the absence of a common law policy or directive from the Pennsylvania
General Assembly, to “go further than what is affirmatively commanded by the High
Court” in the implementation of new federal constitutional doctrine).12 Thus, litigants
who may advocate broader retrospective extension of a new federal constitutional rule
would do best to try to persuade this Court both that the new rule is resonate with
Pennsylvanian norms and that there are good grounds to consider the adoption of
broader retroactivity doctrine which would permit the rule’s application at the collateral
In the latter regard, the Court would benefit from recognition and
treatment of the strong interest in finality inherent in an orderly criminal justice system,13
Some majority rulings of the United States Supreme Court have espoused the
position that “new rules” are not really “new rules” at all, but rather, lie in a sort of inert
existence prior to the date of their announcement. See, e.g., Danforth, 552 U.S. at 271,
128 S. Ct. at 1035 (“As we have already explained, the source of a ‘new rule’ is the
Constitution itself, not any judicial power to create new rules of law. Accordingly, the
underlying right necessarily pre-exists our articulation of the new rule.”). In our view,
however, this sort of originalist philosophy is inconsistent with the “evolving standards”
overlay which has been engrafted onto the Eighth Amendment, as reflected in Miller
and its predecessors. Conceptually, we are unable to grasp that a specific right which
has “evolved” from a source that did not originally contemplate that right -- albeit that the
source may have allowed for later evolutionary expansion – rationally can be said to
have pre-existed the evolutionary process which produced it. The reluctance to expand
new rules announced under the High Court’s evolving-standards jurisprudence into the
state post-conviction context beyond what is required of this Court may also be
explained, partly, in terms of this conceptual difference. Cf. generally Drinan, Graham
on the Ground, 87 WASH. L. REV. at 64 (observing that “scholars historically have
criticized the U.S. Supreme Court’s opaque retroactivity doctrine” (footnote omitted)).
See, e.g., Commonwealth v. Sam, 597 Pa. 523, 542, 952 A.2d 565, 576 (2008)
(“There is absolutely no doubt that there is an enduring societal interest in the finality of
criminal proceedings”); accord Calderon v. Thompson, 523 U.S. 538, 556, 118 S. Ct.
1489, 1501 (1998) (“Only with real finality can the victims of crime move forward
knowing the moral judgment will be carried out.”); McCleskey v. Zant, 499 U.S. 467,
[J-68-2013] - 13
as well as the social policy and concomitant limitations on the courts’ jurisdiction and
authority reflected in the Post Conviction Relief Act.
Because the appellant in this
matter has not set an appropriate stage for either pillar of such review, the Teague line
of analysis remains the appropriate default litmus governing the present appeal.
Here, we find the application of this analysis to be fairly straightforward. Initially,
we reject Appellant’s position that the Miller Court’s reversal of the state appellate court
decision affirming the denial of post-conviction relief in the Jackson case compels the
conclusion that Miller is retroactive. In the first instance, it is not clear that the issue was
even placed before the Court, and, as the Commonwealth observes, the Supreme Court
need not entertain questions of retroactive application where the government has not
raised it. See Goeke, 514 U.S. at 117, 115 S. Ct. at 1276; cf. Carp, 828 N.W.2d at 713
(“In Jackson, because the State did not raise the issue of retroactivity, the necessary
predicate for the Court to resolve the question of retroactivity was waived.”). Whether
the matter was waived or, as the Commonwealth contends, remained available to be
asserted on remand is of no moment here, since the United States Supreme Court has
made clear enough that Teague determinations are not inherently implicit in all new
constitutional rulings implemented by that Court. But see Williams, 982 N.E.2d at 197
(deriving support for the holding that Miller’s holding is retroactive from its disposition of
the Jackson case); Morfin, 981 N.E.2d at 1023 (same). Rather, in the absence of a
specific, principled retroactivity analysis by the United States Supreme Court (or a
491, 111 S. Ct. 1454, 1468 (1991) (“One of the law’s very objects is the finality of its
judgments.”); Witt v. State, 387 So. 2d 922, 929 (Fla. 1980) (opining that emergent,
“evolutionary refinements” in criminal law “do not compel an abridgement of the finality
of judgments,” at the expense of stability, predictability, and manageability of the justice
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functional equivalent), we do not believe that a Teague assessment by subordinate
state courts is foreclosed.
We also agree with the Commonwealth that the first Teague exception does not
apply to the Miller rule.
Since, by its own terms, the Miller holding “does not
categorically bar a penalty for a class of offenders,” Miller, ___ U.S. at ___, 132 S. Ct. at
2471, (and because it does not place any conduct beyond the State’s power to punish
at all, see supra note 6), it is procedural and not substantive for purposes of Teague.
Accord, e.g., Craig v. Cain, No. 12-30035, slip op., 2013 WL 69128, at *2 (“Miller does
not satisfy the test . . . because it does not categorically bar all sentences of life
imprisonment for juveniles; Miller bars only those sentences made mandatory by a
As to the second Teague exception, as we have previously noted, Appellant has
not developed his arguments in such terms. We will say that, given the high importance
attached by the Miller majority to the new rule which it discerned, it seems possible that
some Justices of the United States Supreme Court may find the rule to be of the
watershed variety. Accord Williams, 982 N.E.2d at 197 (holding that Miller’s holding
See also Moran, 713 F.3d at 1367-68 (finding Miller to be non-substantive because it
regulates only the manner of determining the degree of a defendant’s culpability);
Chambers, 831 N.W. at 329 (reasoning that the Miller rule is procedural, inter alia,
because it “does not eliminate the power of the State to impose the punishment of life
imprisonment without the possibility of release upon a juvenile offender who has
committed a homicide offense.”); Geter, 115 So. 3d at 377 (“Clearly and unequivocally,
the Supreme Court distinguished between the substantive determinations of a
categorical bar prohibiting a ‘penalty for a class of offenders or type of crime,’ as in
Roper and Graham, and the procedural determination in Miller that merely requires
consideration of mitigating factors of youth in the sentencing process.” (quoting Miller,
___ U.S. at ___, 132 S. Ct. at 2471)). See generally LAFAVE, 7 CRIM. PROC. §28.6(e)
(“Miller, unlike other rules applied retroactively under Teague, was primarily a
procedural, not a substantive decision.”). But see Jones, ___ So.3d at ___, 2013 WL
3756564, at *5 (finding the Miller rule to be substantive in character); Morfin, 981 N.E.2d
at 1022 (same).
[J-68-2013] - 15
qualifies as a watershed rule of criminal procedure under the second Teague
exception). We doubt, however, that a majority of the Justices would broaden the
exception beyond the exceedingly narrow (or, essentially, class-of-one) parameters
reflected in the line of decisions referenced by the Commonwealth. Accord Chambers,
831 N.W.2d at 311 (concluding that Miller does not establish a watershed rule because
it focuses exclusively on sentencing and does not alter bedrock procedural elements
essential to fairness of a proceeding); Craig v. Cain, No. 12-30035, 2013 WL 69128, at
*2 (depicting Miller as “an outgrowth of the Court’s prior decisions that pertain to
individualized-sentencing determinations,” rather than a watershed rule broadly
impacting fundamental fairness and accuracy in the proceedings). According to the
Court, the exception is limited to “sweeping” changes on the order of Gideon v.
Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963) (holding that all indigent defendants
charged with felonies are entitled to appointed counsel); modifications of a less broadscale nature, while they may be very important, simply do not require retroactive
application, under the second Teague exception. Whorton v. Bockting, 549 U.S. at 421,
127 S. Ct. at 1183-84 (citations omitted).
All Justices of this Court and the United States Supreme Court share the
sentiment that “[d]etermining the appropriate sentence for a teenager convicted of
murder presents grave and challenging questions of morality and social policy.” Miller,
___ U.S. at ___, 132 S. Ct. at 2477 (Roberts, C.J., dissenting, joined by Scalia,
Thomas, and Alito, JJ.). Our role in establishing social policy in the arena is a limited
Here, applying settled principles of appellate review, nothing in
Appellant’s arguments persuades us that Miller’s proscription of the imposition of
mandatory life-without-parole sentences upon offenders under the age of eighteen at
the time their crimes were committed must be extended to those whose judgments of
[J-68-2013] - 16
sentence were final as of the time of Miller’s announcement. See generally Geter, 115
So. 3d at 377 (“Clearly and unequivocally, the Supreme Court distinguished between
the substantive determinations of a categorical bar prohibiting a ‘penalty for a class of
offenders or type of crime,’ as in Roper and Graham, and the procedural determination
in Miller that merely requires consideration of mitigating factors of youth in the
sentencing process.” (quoting Miller, ___ U.S. at ___, 132 S. Ct. at 2471)).
generally LAFAVE, 1 CRIM. PROC. §2.11(e) (“Teague has made new rulings very rarely
applicable retroactively on habeas review[.]”).
The order of the Superior Court is affirmed.
Mr. Chief Justice Castille and Messrs. Justice Eakin and Stevens join the
Mr. Chief Justice Castille files a concurring opinion.
Mr. Justice Baer files a dissenting opinion in which Madame Justice Todd and
Mr. Justice McCaffery join.
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