J-S15003-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

SHAWN SAUNDERS

                            Appellant                No. 2818 EDA 2016


                 Appeal from the PCRA Order August 15, 2016
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0001537-2000


BEFORE:      BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                             FILED MARCH 24, 2017

       Shawn Saunders appeals from the August 15, 2016 order denying his

sixth PCRA petition.1 We affirm.

       Based upon the following events, a jury convicted Appellant of second

degree murder, robbery, conspiracy, and possession of a unlicensed firearm.

On October 18, 1999, Appellant, Omar Davis, and David Burroughs traveled

together to Ninth and Lincoln Streets in Chester so that Davis could

purchase marijuana.         On the way, Appellant, who was armed with a gun,

____________________________________________


1
  In the August 15, 2016 order, the court denied a separate PCRA petition
that Appellant had filed. The appeal from the denial of that petition is also
pending before this panel. While the appeals are from the same order, that
order disposed of separate motions for post-conviction relief. Accordingly,
we have not consolidated them for review.
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informed his cohorts that he intended to rob the individual who was going to

sell Davis the controlled substance. When they arrived at their destination,

Appellant put on a ski cap and covered his face.        Appellant, Davis, and

Burroughs encountered Cleven Pender and Shammer Thomas. Davis rifled

through Thomas’ pockets, and Appellant told Pender to give him money.

When Pender started to back away, Appellant shot Pender in the chest,

killing him. Appellant was twenty-two years old when he murdered Pender.

     Appellant was convicted on March 9, 2001, and was sentenced to life

imprisonment.      On August 27, 2002, we affirmed, Commonwealth v.

Saunders, 809 A.2d 964 (Pa.Super. 2002) (unpublished memorandum),

and our Supreme Court denied allowance of appeal on December 2, 2003.

Commonwealth v. Saunders, 839 A.2d 352 (Pa. 2003). No further review

was sought.

     Appellant filed a timely PCRA petition on February 7, 2005, and

counsel was appointed.      Counsel was allowed to withdraw and relief was

denied.     Appellant did not appeal.   On August 14, 2009, Appellant filed a

second PCRA petition, which was dismissed as untimely.        On appeal, we

affirmed.    Commonwealth v. Saunders, 15 A.3d 538 (Pa.Super. 2010)

(unpublished memorandum).

     Appellant filed a third PCRA petition on March 15, 2012, claiming that

he was entitled to relief under Miller v. Alabama, 132 S.Ct. 2455 (2012),

wherein the United States Supreme Court held that it was unconstitutional,

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under the Eighth Amendment’s prohibition against cruel and unusual

punishment, to sentence a juvenile homicide offender to a mandatory term

of life imprisonment without parole.    Relief was denied, and we affirmed.

Commonwealth        v.   Saunders,     102   A.3d   519   (Pa.Super.     2014)

(unpublished memorandum). In this third Saunders decision, we concluded

that Appellant’s judgment of sentence became final on March 1, 2004, ninety

days after our Supreme Court denied review, and that Appellant had until

March 1, 2005, to present a timely PCRA petition.         We observed that

Appellant’s petition was not timely. We also held that the Miller decision did

not apply to him because he was an adult when he committed the murder in

question. See Commonwealth v. Cintora, 69 A.3d 759 (Pa.Super. 2013)

(Miller does not apply to homicide offenders who are eighteen years of age

or older when they committed the murder).

    Next, Appellant filed a motion arguing that the court had no authority to

impose its sentence and seeking facts regarding its decision.     The motion

was treated as a fourth PCRA petition and denied as untimely.       We once

again affirmed the denial of relief, agreeing that the motion was an untimely

PCRA petition. Commonwealth v. Saunders, 122 A.3d 1126 (Pa.Super.

2015) (unpublished memorandum).

     On April 11, 2016, Appellant filed his fifth PCRA petition.       He once

again invoked the Miller decision. On August 15, 2016, an order was issued

denying the fifth petition. The Court held that Appellant was not entitled to

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relief under Miller because he was an adult when he committed the murder

and because the matter was already litigated in Appellant’s fourth PCRA

petition.   Appellant appealed that decision, which is pending before this

panel at docket number 3132 EDA 2016.

      After Appellant filed his fifth PCRA petition, he presented the request

for relief at issue in this appeal.   Specifically, on May 23, 2016, Appellant

filed a petition for writ of habeas corpus in the civil division of the Court of

Common Pleas of Delaware County.          That motion was transferred to the

criminal division and filed in this action. The court treated the request for

relief as Appellant’s sixth PCRA petition, and, after issuing notice, dismissed

it. In the notice, the PCRA court opined that the petition was untimely and

the issues it contained were previously litigated.      This appeal followed.

Appellant raises these contentions:

           I. Whether the sentencing court erred in applying the Post
      -Conviction Relief Act ("PCRA ") Statute to Appellant's Petition
      For Writ of Habeas Corpus, then denying same as being
      untimely.

            Il. Whether the sentencing court erred in denying
      Appellant's Due Process Rights, and Right to appeal, where there
      are no disclosure of 'any' sentencing authorities and statutory
      authorization employed by the court to impose the sentence(s),
      and sentencing conditions upon Appellant.

                   (a) A Petitioner that qualify under the PCRA
             would be subjected to the pleading, proof, and
             timeliness requirements of the PCRA but claims for
             which there is no remedy under PCRA but which
             otherwise qualify for habeas corpus relief could be
             brought in a habeas petition that would not be

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             subject to the same pleadings, proof, and timeliness
             requirements applicable to PCRA claims.

                   (b) Where Appellant has a Right to Due
             Process of law, and Right to appeal, guaranteed by
             the U.S. Constitution and Pennsylvania Constitution,
             that mandates due notice and adequate disclosure
             concerning sentences and sentencing conditions that
             is imposed by the court.

Appellant’s brief at 4.

       Initially, we note that this Court reviews the “denial of PCRA relief to

determine whether the findings of the PCRA court are supported by the

record and free of legal error.” Commonwealth v. Roane, 142 A.3d 79, 86

(Pa. Super. 2016) (quoting Commonwealth v. Treiber, 121 A.3d 435, 444

(Pa. 2015)). Herein, Appellant claims that the sentencing court did not have

the authority to sentence him to life imprisonment and that it erred in

treating the habeas corpus petition as a PCRA petition and subject to the

one-year filing requirements outlined in 42 Pa.C.S. § 9545(b)(1) (“Any

petition under this subchapter, including a second or subsequent petition,

shall be filed within one year of the date the judgment becomes final[.]”).

       We affirm the PCRA court’s decision that Appellant’s petition for

habeas corpus relief must be considered a PCRA petition. “It is well-settled

that the PCRA is intended to be the sole means of achieving post-conviction

relief.”   Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa.Super. 2013)

(habeas corpus petition treated as a PCRA petition); see 42 Pa.C.S. § 9542

(The PCRA “shall be the sole means of obtaining collateral relief and

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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.”).     “Unless the PCRA could not provide for a

potential remedy, the PCRA statute subsumes the writ of habeas corpus.”

Taylor, supra at 465-66. Thus, if an issue is cognizable under the PCRA,

that issue “must be raised in a timely PCRA petition and cannot be raised in

a habeas corpus petition.” Id. at 466.    In other words, “a defendant cannot

escape the PCRA time-bar by titling his petition or motion as a writ of

habeas corpus.” Id. (footnote omitted).

     Appellant claims that there was no legal authorization for his sentence

and thus is challenging the legality of his sentence.    Legality-of-sentence

issues are cognizable under the PCRA and must be brought pursuant in a

timely PCRA. Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999)

(“Although legality of sentence is always subject to review within the PCRA,

[such a claim] must still first satisfy the PCRA's time limits or one of the

exceptions thereto.”)    Accordingly, the PCRA court properly treated

Appellant’s habeas corpus petition as a PCRA petition.          As we have

previously ruled, Appellant’s judgment of sentence became final on March 1,

2004, and he had until March 1, 2005, to file a timely petition. The present

petition is patently untimely. Although there are exceptions to the one-year

time bar of § 9545(b), Appellant has not invoked one.

     Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/24/2017




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