Matthew T. Mangino
The Pennsylvania Law Weekly
October 8, 2013
More than a year has passed without a decision from the Pennsylvania Supreme Court in the case of Commonwealth v. Cunningham, No. 38 EAP 2012. The decision is extremely important to the roughly 460 inmates who are serving life-without-parole sentences for offenses committed as juveniles.
In 2012, the U.S. Supreme Court ruled in a split 5-4 decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), that a mandatory sentence of life in prison without parole for juveniles violates the Eighth Amendment's ban against "cruel and unusual punishment."
On September 12, 2012, the Pennsylvania Supreme Court heard oral arguments in Ian Cunningham's case. He was 17 when he shot and killed a man during a robbery in Philadelphia. Cunningham was found guilty of second-degree murder by a jury and received a mandatory sentence of life without parole in 2003.
Cunningham's case has taken a tortured path to the Pennsylvania Supreme Court.
His conviction was affirmed by the Superior Court. He filed a Post-Conviction Relief Act petition, which was dismissed without a hearing. His appeal to the Superior Court was once again denied. He filed an allowance of appeal with the Supreme Court. The allowance was originally held in abeyance pending a decision in Commonwealth v. Batts, No. 13-0741 (Pa. March 26, 2013), and then allocatur was granted in August 2012 after the U.S. Supreme Court decision in Miller.
In March, the Pennsylvania Supreme Court sent Qu'eed Batts' case back to a lower court for resentencing for a murder he committed when he was 14. Batts' case was on direct appeal. Cunningham had already exhausted his direct appeals.
Attorneys for Cunningham have argued that his mandatory sentence prohibited the sentencing court from considering mitigating evidence. Because he was convicted of second-degree murder, the trial court imposed the mandatory sentence of life without parole.
The linchpin of the Miller decision was that "mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features — among them, immaturity, impetuosity and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him — and from which he cannot usually extricate himself — no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him."
The sentence imposed upon Cunningham was mandatory and, as a result, information regarding his age, his family and home environment, his level of sophistication in dealing with the criminal justice system, the circumstances of the offense, and his potential for rehabilitation were not considered in determining whether life without parole was an appropriate sentence.
There was plenty of mitigation for the court to consider in Cunningham's case.
According to Cunningham's brief, at the time of the murder, he was 17 years old. He was the youngest of three children; his father abandoned the family when Cunningham was 4 years old. He was placed in three different facilities as a juvenile between May 1998 and August 1999. He returned to the family home in August 1999 and resided there until his arrest in December 1999 for the offenses of which he was convicted. At the time of sentencing, his older brother was already serving a life sentence.
Cunningham only completed the ninth grade. He began drinking alcohol and smoking marijuana at age 14, which escalated to cocaine laced with cough syrup in August 1999, right after his release from juvenile placement.
Last month, the Pennsylvania Supreme Court sua sponte directed that the Cunningham case be resubmitted for consideration on previously filed briefs. When Cunningham was argued, the court was short-handed. Only six of seven justices heard the arguments. At the time, then-Justice Joan Orie Melvin was embroiled in a criminal investigation that resulted in her conviction and resignation.
Orie Melvin's problem became Cunningham's problem. It appears that the six remaining justices were split 3-3. Since Melvin's resignation, former Superior Court President Judge Correale Stevens was confirmed to fill the vacancy caused by Orie Melvin's departure. Presumably the resubmission is being ordered so that Stevens can break the deadlock among the justices.
Attorneys for Cunningham have asked the court to reconsider the order. Cunningham's attorneys want the Supreme Court to rebrief and reargue the case and have formally asked the court for this relief in light of new developments.
Cunningham's attorneys have alleged that "subsequent to the argument of this matter ... a number of courts across the country have decided that retroactivity question."
The matter has had limited review in Pennsylvania. Erie County Court of Common Pleas Judge Shad Connelly ruled this summer in Commonwealth v. Howard that Miller is not retroactive.
"There is nothing in Miller which either explicitly or impliedly sets forth that it is to be applied retroactively," Connelly wrote. He added, "Neither the Pennsylvania Supreme Court nor Pennsylvania Legislature has recognized the Miller decision as retroactive."
Just last week, the U.S. Third Circuit Court of Appeals ruled in In re Michael J. Pendleton, No. 12-3617; In re Franklin X. Baines, No. 12-3996; and In re Corey Grant, 13-1455, that three men, two from Pennsylvania and one from New Jersey, sentenced as juveniles to life in prison, will have a chance to argue that Miller is retroactive.
The cases are before the court as second or successive petitions for habeas corpus. In order for the court to hear such petitions the petitioners must apply for certification. Such certification will be granted if the petitioners make a prima facie showing that the claims rely on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court."
In these cases the court ruled that the petitioners made a prima facie showing that Miller is retroactive.
In Michigan, Iowa, Illinois, Louisiana and Mississippi, judges have ruled that the Miller decision applies retroactively to all prisoners serving mandatory life sentences regardless of when they were sentenced, reported Stateline, the news service of the Pew Charitable Trusts. In Minnesota and Florida, judges have ruled that the Supreme Court decision only applies to future cases.
In Mississippi, the Supreme Court in Jones v. State, No. 2009-CT-02033-SCT, ruled, "We are of the opinion that Miller created a new, substantive rule which should be applied retroactively to cases on collateral review."
In Hill v. Snyder, 5:10-CV-14568-JCO-RSW, the U.S. District Court for the Eastern District of Michigan declared that all prisoners in Michigan who committed crimes as children and were sentenced to life now have a right to parole. The court noted that it would find Miller retroactive on collateral review.
In People v. Williams, 2012 IL App (1st) 111145, an Illinois appellate court ruled, "We hold that the Supreme Court's decision in Miller should be retroactively applied in this case because it is a rule that 'requires the observance of those procedures that are implicit in the concept of ordered liberty.'"
However, in Geter v. State, No. 3D12-1736 a Florida appellate court held that Miller does not apply retroactively to cases that were final before the decision was issued.
Whether reargued or reviewed, Pennsylvania's juvenile lifers deserve an expedited answer to a fundamental question: Will those inmates have "some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation?"
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