Com. v. Gonzalez Jr., R. (concurring memorandum)
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J-S69015-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ROBERTO GONZALEZ, JR., Appellant No. 744 MDA 2012 Appeal from the Order Entered March 27, 2012 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0003107-1989 BEFORE: MUSMANNO, J., BENDER, J., and COLVILLE, J.* CONCURRING MEMORANDUM BY BENDER, J. FILED DECEMBER 13, 2013 I agree that Appellant is not entitled to relief due to our Supreme Court s recent holding in Commonwealth v. Cunningham, No. 38 EAP 2012 (Pa. filed October 30, 2013). I write separately to note my belief that Cunningham does not completely foreclose the possible retroactive application of Miller v. Alabama, 132 S.Ct. 2455 (2012), to Appellant and those similarly situated, as may be otherwise suggested by the Majority s statement that Cunningham held that Miller does not apply retroactively to defendants whose judgments of sentence were final at the time of Miller s announcement. Majority Memorandum at 4. ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-S69015-12 In Cunningham, our Supreme Court addressed whether the Miller rule, which banned the mandatory imposition of life sentences on juvenile defendants, should be retroactively applied pursuant to one of two exceptions to the general rule of non-retroactivity established in Teague v. Lane, 489 U.S. 288 (1989) (plurality). The Cunningham Court considered whether the Miller rule fit the first Teague exception, which applies to rules prohibiting a certain category of punishment for a class of defendants because of their status or offense. The Cunningham Court did not reach the question of whether the Miller rule fit within the second Teague exception, which applies to watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding, because the appellant in Cunningham failed to develop any argument to that effect. Thus, whether the Miller rule is a watershed procedural rule requiring retroactive application pursuant to Teague remains an open question. Furthermore, as discussed by Chief Justice Castille in his Concurring Opinion, and briefly noted by the Cunningham Majority itself, the failure to establish retroactive application of a new constitutional rule under one of the two Teague exceptions does not limit the ability of state courts to provide a remedy under state law for violations of such rules. Here, however, Appellant only claimed that the Miller rule should be retroactively applied pursuant to the first Teague exception. Cunningham squarely held that the Miller rule did not fit within that exception and, thus, Appellant is not entitled to relief. Accordingly, I concur in the result reached by the Majority. -2-
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