J-S44016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

ANTHONY FELICIANO

                         Appellant                    No. 2737 EDA 2015


           Appeal from the PCRA Order entered August 24, 2015
              In the Court of Common Pleas of Lehigh County
             Criminal Division at No: CP-39-CR-0002321-2008


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                          FILED AUGUST 24, 2016

      Appellant, Anthony Feliciano, appeals pro se from the August 24, 2015

order entered in the Court of Common Pleas of Lehigh County, denying his

petition for collateral relief pursuant to the Post Conviction Relief Act (PCRA),

42 Pa.C.S.A. §§ 9541-9546. We affirm.

      In a prior appeal, we summarized the factual and procedural

background as follows:

      On June 10, 2009, Appellant pled guilty to one count of
      possession with the intent to deliver. At the time of the plea,
      counsel for Appellant and the Commonwealth agreed to a
      minimum sentence not less than the bottom of the standard
      range and to waive the mandatory minimum for the offense. On
      July 15, 2009, Appellant was sentenced to eight to twenty
      years[’] imprisonment.

      Appellant filed a motion for reconsideration of sentence on July
      24, 2009, which was denied. He did not file a direct appeal. On
      June 25, 2010, Appellant filed a timely pro se petition for PCRA
      relief, counsel was appointed, and counsel filed an amended
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      petition and a second amended petition on Appellant’s behalf. In
      the latter, Appellant alleged that his guilty plea was unlawfully
      induced by the Commonwealth’s representation that it would
      recommend that the sentence run concurrent to any sentence of
      back time he would receive for his state parole violation.

      [Following a hearing, the PCRA court denied relief]. This Court
      affirmed the decision of the PCRA court on June 29, 2011.
      Commonwealth v. Feliciano, [No. 3477 EDA 2010,
      unpublished memorandum, (Pa. Super. filed June 29, 2010)].

      On January 13, 2014, Appellant filed a pro se motion for
      clarification of intended sentences in which he reiterated the
      same claim the sentences were to run concurrently and asked
      the trial court to clarify that for the Board of Corrections. The
      court denied the motion on January 14, 2014, and Appellant
      appealed to this Court on January 29, 2014. [We affirmed the
      denial. See Commonwealth v. Feliciano, No. 359 EDA 2014,
      unpublished memorandum (Pa. Super. filed July 7, 2015)].

      On July 10, 2014, despite the pending appeal, Appellant filed the
      within petition for writ of habeas corpus. The trial court treated
      the petition as a PCRA petition and issued Rule 907 notice of
      intent to dismiss on July 22, 2014, due to untimeliness.
      Appellant filed a response on August 11, 2014, and by order of
      August 19, 2014, the court found that Appellant’s response
      merely reiterated the same assertions previously raised and
      rejected in his first PCRA petition, i.e., that June 10, 2009 guilty
      plea was illegally induced. Appellant also alleged that Alleyne
      v. United States, 133 S. Ct. 2151 (2013), announced a new
      constitutional right and that it should be retroactively applied.
      The PCRA court denied relief and dismissed the petition as
      untimely on August 19, 2014.

Commonwealth v. Feliciano, 2725 EDA 2014, unpublished memorandum

at 1-3 (Pa. Super. filed July 7, 2015) (footnotes omitted).

      Appellant appealed to this Court. Upon review, we concluded:

      Although we agree with the PCRA court’s conclusion that the []
      habeas petition is an untimely PCRA, we note that Appellant filed
      the [] petition in the trial court while this case was already on
      appeal to this Court.      The appeal of the clarification order

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        operated to divest the trial court of jurisdiction to rule. Absent
        jurisdiction, the order [denying relief] is a legal nullity.

Id. at 4-5 (citation omitted).

        Accordingly, we vacated the order dismissing the habeas corpus/PCRA

petition.     In the meantime, the appeal of the clarification order was

completed, and the PCRA court’s denial of relief is now ripe for decision.

        Before we address the merits of Appellant’s issues,1 we must

determine whether we can entertain the instant appeal.           Appellant argues

his petition qualifies for the timeliness exception set forth in § 9545(b)(1)(iii)

“based upon newly confirmed U.S. constitutional rights, as confirmed by the

[Pennsylvania] Supreme Court decision” in Commonwealth v. Hopkins,

117 A.3d 247 (Pa. 2015).            Appellant’s Brief at 7.   In Appellant’s view,

Hopkins rendered null and void, ab initio, all prosecutions and judgments

obtained through mandatory minimum/maximum sentence statutes. Id. at

____________________________________________


1
    Appellant raised the following issues for our review:

        1. Did the Pennsylvania Legislature impose illegal              and
           unconstitutional statutes as relied upon the lower court?

        2. Did the lower court have jurisdiction and authority to correct
           its’ [sic] on-record errors in its’ [sic] judgments and orders;
           [sic] even in the face of a pending appeal?

        3. Was Appellant entitled to habeas corpus due process and
           relief?

Appellant’s Brief at 6.




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9. In his case, Appellant argues, he involuntarily entered into a guilty plea

based on a statute Hopkins rendered unconstitutional.             Id.     Accordingly,

Appellant argues, all “the lower court proceedings, orders and judgments []

were and are legal nullities, ab initio[.]” Id. at 8. Appellant also appears to

challenge      the     PCRA      court’s       treatment   of   his     “Motion    for

Reinstatement/Renewal Petition for Writ of Habeas Corpus” as a PCRA

petition. Id. at 7.

       We discern several flaws in Appellant’s argument.              In Hopkins, the

Pennsylvania Supreme Court held that 18 Pa.C.S.A. § 6317, which required

a mandatory minimum sentence if certain controlled substances crimes

occurred within 1,000 feet of a school, was unconstitutional under Alleyne.

Hopkins was decided on direct appeal, and did not mandate its application

to post-conviction proceedings. Thus, reliance on Hopkins is misplaced.

       Even if the Supreme Court had said so, Appellant failed to explain how

Hopkins would be relevant here, since his case does not concern Section

6317.2 Indeed, Appellant was not even sentenced to a mandatory minimum

sentence. Trial Court Order, 9/24/15, at 1 n.1.



____________________________________________


2
 Appellant entered a negotiated guilty plea to possession with the intent to
deliver, 35 P.S. § 780-113(A)(30), and was sentenced to eight to twenty
years’ imprisonment. Trial Court Order, 9/24/15, at 1 n.1; Trial Court
Order, 8/24/15, at 1.




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       Finally, it should be noted that Hopkins is an application of Alleyne.

Alleyne, however, is not applicable to the instant matter because

Appellant’s case was at the collateral stage when Alleyne was decided (June

23, 2013), and Alleyne does not apply retroactively to cases on collateral

review.      See Commonwealth v. Washington, 2016 WL 3909088, at *8

(Pa. July 19, 2016) (“We hold that Alleyne does not apply retroactively to

cases pending on collateral review[.]”; Commonwealth v. Miller, 102 A.3d

988, 995 (Pa. Super. 2014) (“[N]either our Supreme Court, nor the United

States Supreme Court has held that Alleyne is to be applied retroactively to

cases in which the judgment of sentence had become final.”). “If [Alleyne]

does not apply retroactively, then a case extending [Alleyne] should not

apply retroactively.” Walker v. United States, 810 F.3d 568, 575 (8th Cir.

2016).       Accordingly, Appellant cannot rely on Hopkins to overcome the

PCRA’s jurisdictional time bar.

       Because Appellant’s facially untimely petition fails to invoke a valid

exception to the timeliness requirements of the PCRA, and because Hopkins

does not apply retroactively on collateral review, Appellant is not entitled to

relief. Therefore, the PCRA court properly dismissed Appellant’s PCRA

petition.3

____________________________________________


3
  On the merits, the instant petition is “nothing more than a rehash of
[Appellant]’s first PCRA petition arguing that his plea was involuntary.”
Feliciano, No. 359 EDA 2014, at 6. It should be noted that the PCRA court
(Footnote Continued Next Page)


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      Next, Appellant argues that the PCRA court erred in treating his

motion as a PCRA petition, that his request for habeas corpus relief is

constitutionally guaranteed and cannot be suspended by the PCRA, and that

the legislature lacks the constitutional power to limit the availability of

habeas corpus. See Appellant’s Brief at 10-12. These very same arguments

were raised and rejected in Commonwealth v Peterkin, 722 A.2d 638 (Pa.

1998). It is well-established that the PCRA subsumes the remedy of habeas

corpus with respect to remedies offered under the PCRA. Therefore, to the

extent the relief sought falls within the purview of the PCRA, the remedy

requested must meet the PCRA requirements.                Here, Appellant essentially

alleges violations of the constitution and of law that undermine the truth-

determining    process,      which     are   claims   cognizable   under   the   PCRA.

Accordingly, no writ of habeas corpus remedy is “available as to these

claims, for [Appellant] had a remedy at the PCRA, and his claim that he was

improperly denied the right to file a petition for habeas corpus is without




                       _______________________
(Footnote Continued)

denied Appellant relief on his first PCRA petition, and this Court affirmed on
appeal. Feliciano, 3477 EDA 2010. The merits of the instant petition were,
therefore, previously litigated, and rejected. Accordingly, no relief is due.
See 42 Pa.C.S.A. §§ 9544(a), 9543(a)(3). We also note that in the petition
giving rise to this appeal Appellant argued that his petition was timely in
light of Alleyne. On appeal, Appellant changes his theory for relief. On
appeal, timeliness is now achieved through Hopkins. As noted above, it
does not matter whether Appellant relies on Alleyne or Hopkins. Neither
provides support to his timeliness argument.



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merit.”   Id. at 640-41.    Because Appellant failed to raise the underlying

issues in a timely PCRA petition, no relief is due.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/2016




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