J-S51020-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA


                       v.

EDWARD GRAZIANO

                            Appellant                     No. 2260 EDA 2016


                   Appeal from the PCRA Order June 15, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1017851-1991


BEFORE: BOWES, J., SHOGAN, J., AND STEVENS, P.J.E.,*

MEMORANDUM BY BOWES, J.:                                FILED JANUARY 05, 2018

       Edward     Graziano     appeals    from   the   order   jointly   disposing   of

Appellant’s fourth PCRA petition, which the PCRA court determined was

untimely, and his motion for a writ of habeas corpus, which the court denied

on the merits.      We find that both petitions must be construed as PCRA

petitions, and therefore the court lacked jurisdiction to address the merits of

either petition.1 We therefore affirm.


____________________________________________


1 The parties have not raised any issue respecting the court’s decision to
dispose of several matters in one overarching order. We note that an en
banc panel of this Court has heard argument in Commonwealth v.
Montgomery, 938 WDA 2016, which squarely presents the issue of how a
PCRA court should handle serial PCRA petitions when no appeal is pending.
It is clear that Appellant’s PCRA claims are untimely, and, in any event, his
(Footnote Continued Next Page)


* Former Justice specially assigned to the Superior Court.
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      We succinctly summarized the facts leading to Appellant’s conviction

for, inter alia, first-degree homicide, in a prior decision. “Appellant shot the

victim, Dominic Capocci, in the forehead outside of a Philadelphia afterhours

club. Capocci died as a result of his injury. Graziano then fled to Florida,

where he was ultimately arrested.”              Commonwealth v. Graziano, 927

A.2d 651 (Pa.Super. 2007).

      This Court has previously decided three PCRA appeals, each time

affirming the denial of relief. See Commonwealth v. Graziano, 863 A.2d

1223 (Pa.Super. 2004) (unpublished memorandum) (first PCRA); Graziano,

supra (unpublished memorandum) (second PCRA); Commonwealth v.

Graziano, 4 A.3d 205 (Pa.Super. 2010) (unpublished memorandum) (third

PCRA).     The latter two decisions both determined that Appellant’s PCRA

petitions were untimely.2

      The instant appeal concerns Appellant’s fourth, fifth, sixth, and

seventh attempts at collateral relief.          The fourth petition was filed on July

22,   2010,     and    raised    the    claim     that   Appellant’s   sentence   was

(Footnote Continued) _______________________

arguments on appeal are limited to the habeas corpus matter, which the
PCRA court decided on the merits.

2  The first petition was timely. Appellant initially sought PCRA relief on
January 14, 1997. This Court remanded the matter in October of 2000,
finding that the PCRA court erroneously denied Appellant’s petition to amend
his PCRA. An evidentiary hearing was held, culminating in the 2004 appeal.




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unconstitutional pursuant to Graham v. Florida, 560 U.S. 48 (2010)

(juvenile offender may not be sentenced to life in prison without parole for

crimes not resulting in death). The PCRA court did not take any action on

this petition.    Approximately two years later, Appellant filed a document

titled “Supplement to Original Post Conviction Petition”, in which he raised

an allegation that PCRA counsel failed to provide effective assistance during

his first PCRA petition. This supplemental petition invoked Martinez v.

Ryan, 566 U.S. 1 (2012), which dealt with the issue of federal habeas

petitioners overcoming procedural defaults occurring in state court due to

ineffective assistance of state collateral counsel.

       Appellant next filed, on August 15, 2012, another document styled as

a supplement to the original PCRA petition, this time seeking relief under

Miller v. Alabama, 567 U.S. 460 (2012), which barred the imposition of a

mandatory sentence of life imprisonment for juvenile offenders. The PCRA

court did not grant an order permitting amendment, and instead appeared to

treat the three petitions as comprising one PCRA petition with three separate

claims.3   For all three petitions, Appellant cited 42 Pa.C.S. § 9545(b)(iii),

____________________________________________


3 As discussed in n.1, supra, the law is unsettled as to how serial PCRA
petitions should be treated at the court of common pleas level when no
appeal is pending. Since Appellant has abandoned any claims regarding
these three petitions, we need not discuss the analytical difficulties posed by
the joint disposition of three distinct attempts to invoke an exception to the
time bar, each of which was subject to additional requirements.



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which applies where the Supreme Courts of Pennsylvania or the United

States have recognized a new constitutional right as applying retroactively,

as the pertinent exception to the one-year time bar.

      In addition to these three petitions, all of which were filed in the

Criminal Division of the Court of Common Pleas, Appellant filed a petition for

a writ of habeas corpus in the Civil Division of the Court of Common Pleas on

April 11, 2013, against Michael Harlow, the Superintendent of SCI Albion.

This petition set forth five separate claims, all alleging that Appellant was

unlawfully detained due to a flaw in Appellant’s judgment of sentence. By

order dated April 13, 2013, the Honorable Arnold L. New transferred the

petition to the Criminal Division of the Court of Common Pleas. Thus, the

PCRA court had four separate requests for relief before it: (1) a PCRA

petition invoking Graham; (2) a PCRA petition invoking Martinez; (3) a

PCRA petition invoking Miller; and (4) the transferred petition for a writ of

habeas corpus.

      On April 5, 2016, the PCRA court issued a lengthy notice of intent to

dismiss the petition, which addressed all three of Appellant’s newly-

recognized constitutional rights claims/petitions, and also indicated an intent

to dispose of the transferred habeas corpus petition.       Appellant did not

respond to the notice, and, on June 15, 2016, the PCRA court entered an

order denying relief.




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      Appellant filed a timely notice of appeal, and the court issued an

opinion without requiring a Pa.R.A.P. 1925(b) concise statement.           The

opinion, like the notice of intent to dismiss, discusses the merits of

Appellant’s habeas corpus petition. The opinion concludes:

      This court has once again evaluated untimely, meritless
      collateral petitions filed by Mr. Graziano. Petitioner failed to
      demonstrate that his PCRA petition fell within the purview of
      subsection 9545(b)(1)(iii). Petitioner’s alternative challenge
      to the legality of his detention, although reviewed outside
      the framework of the PCRA, was nevertheless meritless.
      Accordingly, for the reasons stated herein, the decision of the
      court dismissing the PCRA petition and denying habeas corpus
      relief should be affirmed.

PCRA Court Opinion, 11/03/16, at 7 (emphasis added).

      Appellant now poses the following questions for our review.

            I. Is the habeas court's denial of the issuance of
      Appellant's petition for writ of habeas corpus to inquire into the
      cause of his detention, a misapplication of law, since it is based
      upon a misinterpretation of the claim Appellant actually
      presented?

      II. Is Appellant's confinement unlawful where the trial court
      failed to enter a final judgment of conviction on jury verdict on
      offenses serving as cause for Appellant's detention, as required
      by law in order to turn a jury verdict into an appealable or
      enforceable conviction, in violation of the constitutions and laws
      of Pennsylvania and the United States?

Appellant’s brief at 4.

      It is well-settled that all PCRA petitions must be filed within one year

of the date a defendant's judgment of sentence becomes final, unless an

exception applies. 42 Pa.C.S. § 9545(b)(1). The time bar is jurisdictional in



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nature; therefore, “when a PCRA petition is untimely, neither this Court nor

the trial court has jurisdiction over the petition.” Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014) (citation and quotation marks omitted).

Timeliness presents a question of law, which we review de novo and our

scope of review is plenary.        Commonwealth v. Hudson, 156 A.3d 1194,

1197 (Pa.Super. 2017).

       Appellant’s brief is limited to the PCRA court’s treatment of his habeas

corpus claims and he has therefore abandoned any argument pertaining to

his Graham, Martinez, and Miller claims.4         We therefore focus on the

PCRA court’s discussion of the habeas corpus claims.

       Before addressing Appellant’s argument, we find it helpful to review

the PCRA court’s analysis of the habeas corpus petition. The opinion states:

       C. Petitioner was not entitled to habeas corpus relief due to the
       Department of Corrections' lack of a written sentencing order.

       The PCRA court did however evaluate Petitioner's claim that the
       Department of Corrections ("DOC") lacked legal authority for his
       continued detention due to the lack of a written sentencing
       order, in contravention of 42 Pa. Cons. Stat. § 9764(a)(8) and
       37 Pa. Code § 91.3. See Joseph v. Glunt, 96 A.3d 365 (Pa.
       Super. 2014) (concluding that the PCRA did not subsume an
       illegal sentence claim based on the inability of the DOC to
       produce a written sentencing order). Upon review, the Honorable
       Ricardo C. Jackson entered a sentencing order in this matter on
       September 10, 1993. Additionally, upon reviewing the criminal
____________________________________________


4 We note that these claims would not have afforded relief in any event, for
the reasons set forth within the PCRA court’s opinion, as Appellant was not a
juvenile when he committed the instant crimes.



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     docket through the Common Pleas Case Management System,
     Petitioner's sentence was accurately docketed by the Clerk of
     Courts of this court. The Superior Court has held that even when
     the DOC lacks possession of a written sentencing order, it has
     continuing authority to detain a prisoner. Id. at 372.

PCRA Court Opinion, 11/03/16, at 6-7.

     Appellant asserts that the PCRA court misconstrued his claim.         He

maintains that the PCRA court

     erroneously conclud[ed] that Appellant was challenging the
     Pennsylvania Department of Corrections (“DOC”) statutory
     authority to confine him without a written sentencing order, in
     contravention of 42 Pa.C.S.A. § 9764, and 37 Pa.Code § 91.3.

     However, contrary to the habeas court’s erroneous conclusion
     and misapplication of law, the certified record confirms that
     nowhere in Appellant’s amended writ of habeas corpus petition
     does he challenge the DOC’s authority to confine him under 42
     Pa.C.S.A. § 9764, and/or 37 Pa.Code § 91.3.          In fact,
     Appellant essentially argued that his incarceration is
     unlawful because the trial court failed to officially convict
     him of any of the offenses serving as cause for his
     detention . . . in violation of the Due Process Clause and
     Separation of Powers Doctrine under the Constitutions
     and laws of Pennsylvania and the United States.

Appellant’s brief at 10 (emphasis added).

     On    this   point,   we   agree   with   Appellant;   the   PCRA   court

misapprehended the nature of his claim. However, that error is immaterial,

as it is clear that Appellant’s actual claim was subject to the PCRA, and was

therefore untimely.

     We begin by examining the legal authority relied upon by the PCRA

court, Joseph v. Glunt, 96 A.3d 365 (Pa.Super. 2014).         The PCRA court



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determined that Glunt mandated a review of Appellant’s claim on the

merits. We disagree.

      As indicated by the caption, the defendant in Glunt was Steven Glunt,

the Superintendent of the facility housing Woodens Joseph.           Joseph’s

petition asserted that his sentence was illegal “because the DOC does not

have a written copy of the sentencing order[.]” Id. at 368. We determined

that his claim was not subject to the PCRA, citing Brown v. Pennsylvania

Dept. of Corrections, 81 A.3d 814 (Pa. 2013) (per curiam), which vacated

an order of the Commonwealth Court and remanded for transfer to the

Philadelphia County Court of Common Pleas. The claim in Brown was that

the inmate’s confinement was illegal because the facility failed “to produce a

written sentencing order related to the judgment of sentence entered

against him[.]”   Id. at 814.   In remanding the matter for transfer to the

Court of Common Pleas, the Brown Court noted that “[M]atters sounding in

habeas corpus lie in the jurisdiction and venue of the court of record from

which the order of detention came.” Id. at 815.

      Presumably, the Civil Division relied upon Brown in correctly ordering

transfer to the Criminal Division, as that is the venue where the sentencing

order was entered. The PCRA court, however, concluded that the claim in

the instant case was, as in Glunt, that the DOC did not possess a written

copy of the sentencing order, and, therefore, not subject to the PCRA.

However, the statements in Brown, and Glunt’s interpretation thereof, do

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not hold that these claims are not actually subject to the PCRA.          Our

reasoning follows.

       First, Brown is a per curiam reversal, with limited precedential

significance.5 More importantly, Brown simply did not speak to the question

of whether the PCRA subsumed Brown’s claim. It is not inconsistent to state

on the one hand that a claim may sound in habeas corpus and, on the other,

that the PCRA subsumes the habeas corpus claim notwithstanding; indeed,

the latter point is explicitly codified by the PCRA statute.     “The action

established in this subchapter shall be the sole means of obtaining collateral

relief and encompasses all other common law and statutory remedies for the

same purpose that exist when this subchapter takes effect, including habeas

corpus and coram nobis.” 42 Pa.C.S. § 9542.


____________________________________________


5   In Commonwealth v. Tilghman, 673 A.2d 898, 904 (Pa. 1996), our
Supreme Court stated that per curiam orders, whether reversing or
affirming, “signifies this Court's agreement or disagreement with the lower
tribunal's final disposition of the matter on appeal to us. An order of per
curiam affirmance or reversal becomes the law of the case.”              In
Commonwealth v. Thompson, 985 A.2d 928, 937–38 (Pa. 2009), the
Court stated, “The rationale for declining to deem per curiam decisions
precedential is both simple and compelling. Such orders do not set out the
facts and procedure of the case nor do they afford the bench and bar the
benefit of the Court's rationale.” While Brown set forth limited reasoning,
we rely upon its citations to Commonwealth ex rel. Bryant v. Hendrick,
280 A.2d 110, 112 (Pa. 1971) and Warren v. DOC, 616 A.2d 140, 142
(Pa.Cmwlth. 1992) for the point of law that such claims sound in habeas
corpus.




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       Second, the fact that Glunt viewed the claim as falling outside of the

PCRA is irrelevant, as the inmate in Glunt had filed suit in the Civil Division,

and named the Superintendent as defendant and challenged the authority of

that person to hold him.6         The essence of a writ of habeas corpus is to

secure release from confinement.               “The writ of habeas corpus has been

called the ‘great writ.’ It is an ancient writ, inherited from the English

common law, and lies to secure the immediate release of one who is

detained unlawfully.”       Commonwealth v. Morman, 541 A.2d 356, 358

(Pa.Super. 1988).        In Glunt, the appellant requested that we order his

release. “Consequently, [Joseph] claims that the DOC's inability to produce

a copy of this sentencing report constitutes a fatal failure that should result

in his immediate release.” Glunt, supra at 370.

       Herein, however, we are reviewing an appeal from the Criminal

Division, and Appellant explicitly states that he is not challenging the

authority of the DOC to hold him.               “[T]he certified record confirms that

nowhere in Appellant’s amended writ of habeas corpus petition does he

____________________________________________


6 Glunt did not discuss whether the matter should have been remanded for
transfer to the Criminal Division. Discussing the PCRA in the context of an
appeal from the Civil Division is misguided, as the Civil Division could not
have ordered relief due to some purported defect in the judgment of
sentence, i.e., the actual conviction from the Criminal Division. To that end,
subsequent case law has made plain that when a claim implicates the
underlying judgment of sentence, that claim must be brought under the
PCRA. See Commonwealth v. Descardes, 136 A.3d 493, 501 (Pa. 2016).



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challenge the DOC’s authority to confine him[.]”          Appellant’s brief at 10.

Hence, Glunt is inapplicable, and the PCRA court erroneously concluded

otherwise.

       Simply put, Glunt addressed only whether the named defendant was

required to release the prisoner, whereas here the question is whether the

conviction was legally flawed.         Obviously, those points are related as the

source of the DOC’s power to confine Appellant relies upon a lawful

conviction. However, the fact remains that any underlying challenge to the

conviction itself must be brought under the PCRA.            Thus, the pertinent

question is whether the PCRA subsumed Appellant’s claim, and, in this case,

the answer is yes. Appellant’s habeas petition raised sundry constitutional

theories, all contending that the lack of a valid written judgment of sentence

was “in violation of the Due Process Clause and Separation of Powers

Doctrine under the Constitutions and laws of Pennsylvania and the United

States.” Appellant’s brief at 10. “In fact, Appellant essentially argued that

his incarceration is unlawful because the trial court failed to officially

convict him of any of the offenses serving as cause for his detention[.]”

Id. (emphasis added).7 The PCRA clearly encompasses this claim. See 42

____________________________________________


7 For the sake of completeness, we note that Appellant does not dispute the
jury’s verdict or the process which resulted in that verdict; rather, he claims
that the verdict itself must be validly “signed and sealed . . . to make a
conviction official, appealable[,] or enforceable.” Appellant’s brief at 11. All
(Footnote Continued Next Page)


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Pa.C.S. § 9543(a)(2)(i) (to be eligible for PCRA relief, the petitioner must

establish that his conviction or sentence resulted from, inter alia, “A violation

of the Constitution of this Commonwealth or the Constitution or laws of the

United States[.]”). Since the claims raised within the petition for a writ of

habeas corpus could be brought under the PCRA, it must be brought under

the PCRA. Commonwealth v. Descardes, 136 A.3d 493, 501 (Pa. 2016).

      Therefore, the PCRA court lacked jurisdiction to review this claim, as

Appellant did not plead, let alone satisfy, any exception to the time bar that

permitted review of his constitutional attacks.        Since the time bar is

jurisdictional in nature, neither the PCRA court nor this Court have

jurisdiction over the substantive claims raised. Accordingly, the PCRA court

erred by addressing the merits of the petition, but did not err in denying

relief. We therefore affirm on the alternative jurisdictional basis.

      Order affirmed.

      President Judge Emeritus Stevens joins the memorandum.

      Judge Shogan concurs in the result.




(Footnote Continued) _______________________

of his claims are purely technical complaints about how the jury’s verdict
must be recorded and entered upon the record, some of which rely upon
statutes enacted long after the jury’s verdict.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/18




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