J-S10037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    CAREY ABNEY                                :
                                               :
                      Appellant                :   No. 1407 EDA 2017

                      Appeal from the Order April 3, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0804281-1995


BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                              FILED MARCH 13, 2018

        Appellant Carey Abney appeals pro se from the order dismissing his writ

of habeas corpus petition.1 Appellant claims that his confinement is unlawful

because the trial court failed to note that it sentenced Appellant under 18

Pa.C.S. § 1102(a) and did not enter a proper written sentencing order. We

affirm.

        On September 9, 1996, Appellant was convicted of first-degree murder

and possessing instruments of crime (PIC).2           The trial court, with Judge

Juanita Kidd Stout presiding, sentenced Appellant to life imprisonment for the

murder conviction and 2½ to 5 years’ incarceration for the PIC conviction.


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1   42 Pa.C.S. §§ 6501-6505.

2   18 Pa.C.S. §§ 2502(a) and 907, respectively.
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Over the years, Appellant has filed several Post Conviction Relief Act3 (“PCRA”)

petitions and petitions for writ of habeas corpus.

        More recently, in 2015, Appellant filed a motion to correct clerical errors

in the trial court’s sentencing order alleging that the court did not enter a

proper sentencing order in 1996 and that a computer-generated 2013

sentencing order did not refer to the sentencing statute and contained several

errors. The trial court denied Appellant’s motion. This Court affirmed on the

basis of the trial court’s opinion that there was a proper written sentencing

order entered in 1996 and that despite the errors in the 2013 computer-

generated order, no corrections were required.          See Commonwealth v.

Abney, 80 EDA 2016 unpublished mem. at 3-4 (Pa. Super. filed Aug. 23,

2016).

        On February 22, 2017, Appellant filed the instant petition for writ of

habeas corpus. Appellant claimed that his confinement was unlawful because

the state correctional facility in which Appellant was incarcerated did not

possess a written sentencing order and that section 1102(a) had been

declared unconstitutional in 1978.

        On April 4, 2017, the trial court denied Appellant’s petition. The court

determined that Appellant’s challenge based on the absence of a written

sentencing order constituted a proper claim for habeas corpus relief, but was

frivolous as it had been previously litigated. The court also determined that
____________________________________________


3   42 Pa.C.S. §§ 9541-9546.


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Appellant’s assertion that section 1102(a) was unconstitutional constituted a

claim cognizable under the PCRA and was untimely filed. See Order, 4/3/17,

at 1 n.1.   However, the court addressed Appellant’s claim because it was

joined to a proper habeas corpus claim. Therefore, the court concluded that

this claim was also frivolous because Appellant was sentenced under an

amended version of section 1102(a).

      Appellant filed a timely notice of appeal.       The trial court ordered

Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on

appeal. Appellant complied, asserting:

         The Appellant could not have been sentenced under 1[8]
         Pa.C.S. § 1102(a) because this [s]entencing [s]tatute was
         deemed unconstitutional by the Pa. Supreme Court o[n]
         January 26, 1978. See: Com[monwealth] v. McKenna, 476
         Pa. 428, 383 A.2d 174 (1978)[.]

         Bronson’s Order states that the Appellant raised the claim that:
         “THE COURT IMPOSED A SENTENCE[] GREATER THAN THE
         LAWFUL MAXIMUM”, the Appellant’s claim is that his liberty has
         been restrained unlawfully and unconstitutionally.

Concise Statement of Errors Complained of on Appeal, 5/12/17.          The trial

court filed a responsive opinion.

      Appellant, in his pro se brief, raises two issues:

      1. Did Judge Glenn B. Bronson’s April 3, 2017 order dismissing
         the Appellant’s habeas corpus ad subjiciendum and rule to
         show cause petition(s), and his June 23, 2017 opinion overlook
         the critical fact that Justice Stout did not write the sentencing
         statute 18 Pa[.]C.S. § 1102(a)(1) on any of the Appellant’s
         court document(s) thereby informing the Appellant that her
         Honor’s “oral” pronouncement of the sanction a “term of life”
         was a sentence actually imposed?



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      2. Did Justice Stout’s failure to write the sentencing statute 18
         Pa[.]C.S. § 1102(a)(1) on any of the Appellant’s court
         document(s) in support of her Honor’s “oral” pronouncement
         of the sanction a “term of life” directed at the Appellant equate
         to there being no actual sentence being imposed?

Appellant’s Brief at vii (full capitalization omitted).

      Appellant insists that his confinement is illegal. Appellant maintains that

there was no written sentencing order authorizing his confinement.

Alternatively, Appellant asserts that the trial court failed to write the

sentencing statute, section 1102(a), on any of his court documents, including

the bill of information. According to Appellant, the absence of such notations

means no actual sentence was imposed.

      At the outset, we note that a claim that a defendant is confined by the

Pennsylvania Department of Corrections (“DOC”) without a copy of the written

sentencing order is cognizable under the habeas corpus statute.         See 42

Pa.C.S. §§ 6501-6505; Joseph v. Glunt, 96 A.3d 365, 369-71 (Pa. Super.

2014).

      However, a claim that a sentence is illegal is cognizable under the PCRA

and cannot be considered under the habeas corpus statute.                    See

Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011) (holding

petitioner’s claims that a sentencing order failed to specify which authority

would supervise the petitioner’s probation should have been brought under

the PCRA); see also 42 Pa.C.S. §§ 6503(b), 9542 (discussing scope of the

PCRA).




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      If a claim is cognizable under the PCRA, then the petitioner must

demonstrate that the claim has been timely presented. Commonwealth v.

Fahy, 737 A.2d 214, 223 (Pa. 1999) (“Although legality of sentence is always

subject to review within the PCRA, claims must still first satisfy the PCRA’s

time limits or one of the exceptions thereto.”). “If the petition is determined

to be untimely, and no exception has been pled and proven, the petition must

be dismissed without a hearing because Pennsylvania courts are without

jurisdiction to consider the merits of the petition.” Jackson, 30 A.3d at 519

(citation and quotation marks omitted).

      To the extent Appellant contends that he is being confined without a

written sentencing order, we agree with the trial court that this issue could be

cognizable under the habeas corpus statute but was previously litigated and

frivolous. See Abney, 80 EDA 2016 at 3-4; see also Commonwealth v.

Isabell, 467 A.2d 1287, 1292 (Pa. 1983) (construing written sentence

endorsed on bill of information); Commonwealth v. Williams, 636 A.2d 183,

184 n.2 (Pa. Super. 1993) (en banc) (relying on written endorsement of

sentence on back of information that was dated the same day of the

sentencing hearing).    Accordingly, we discern no basis to disturb the trial

court’s dismissal of this claim.

      To the extent Appellant now argues the trial court failed to cite to section

1102(a) on various documents, including the bill of information, or that the

sentencing order was not a final order, Appellant did not raise these issues

before the trial court or in his Rule 1925(b) statement. Therefore, these issues

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are waived. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal”); Pa.R.A.P.

1925(b)(4)(vii) (“Issues not included in the [s]tatement . . . are waived”);

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998).

       Even if Appellant had preserved these issues, we would conclude they

were cognizable under the PCRA. See 42 Pa.C.S. § 9543(a)(2)(i). Because

Appellant did not establish that his petition was timely filed under 42 Pa.C.S.

§ 9545(b), we lack jurisdiction to consider the merits of this claim. 4   See

Fahy, 737 A.2d at 223.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/18




____________________________________________


4 We note that Appellant has abandoned his claim that his sentence was illegal
because section 1102(a) was held unconstitutional in 1978. We agree with the
trial court that this claim should have been dismissed as an untimely PCRA
claim. However, we disapprove of the court’s suggestion that it could consider
the merits because Appellant also raised a claim under the habeas corpus
statute. See Jackson, 30 A.3d at 519.


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