J-S63008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES ALBERT HOLLAND                       :
                                               :
                       Appellant               :   No. 1601 WDA 2017

                Appeal from the PCRA Order September 28, 2017
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0003142-1976


BEFORE:      OTT, J., MURRAY, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                              FILED NOVEMBER 28, 2018

        James Albert Holland appeals, pro se, from the order entered September

28, 2017, in the Allegheny County Court of Common Pleas, dismissing his

petition for writ of mandamus, which the court construed to be an untimely

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 Holland seeks relief from the judgment of sentence of 10 to 20

years’ imprisonment, imposed on December 20, 1976, following his jury

conviction of robbery, theft and recklessly endangering another person

(“REAP”).2 On appeal, Holland contends the trial court violated his rights when


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   Former Justice specially assigned to the Superior Court.

1   42 Pa.C.S. §§ 9541-9546.

2   See 18 Pa.C.S. §§ 3701, 3921, and 2705, respectively.
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it failed to quash his indictment, and the PCRA court erred when it construed

his mandamus petition to be an untimely PCRA petition. We affirm.

       The pertinent facts and procedural history are as follows. On October

29, 1976, a jury found Holland guilty of robbery, theft, and REAP.         On

December 20, 1976, the court sentenced him to an aggregate term of 10 to

20 years’ imprisonment. He filed a direct appeal to this Court. However, while

the appeal was pending, Holland escaped from prison and became a fugitive.

Consequently, this Court quashed his direct appeal on November 1, 1978.

See Commonwealth v. Albert,3 393 A.2d 991 (Pa. Super. 1978).

       It is unclear from the certified record provided to us when Holland was

apprehended. However, in a prior appeal, a panel of this Court explained:

       On September 19, 1980, Holland was sentenced to one to two
       years in prison on an escape conviction. This sentence was to run
       concurrent to the sentence imposed [in the present case]. On
       November 20, 1981, Holland was sentenced to two and one-half
       to five years in prison for possessing a weapon or implement of
       escape. This sentence was to run consecutive to Holland’s prior
       sentences, for an aggregate sentence of twelve and one-half to
       twenty-five years in prison.1

       __________
       1 We note that Holland was sentenced to twelve to thirty years in
       prison in 1959. Holland was paroled in 1971; however, his
       convictions in 1976 resulted in a revocation of his parole and
       Holland was sentenced to the balance of his 1959 sentence.
       Accordingly, Holland did not begin serving the above
       aggregate sentence until April 14, 1996.
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3 The caption in Holland’s prior appeals identify him as “James Albert, a/k/a
James Holland.” See Albert, supra. However, in this appeal, he refers to
himself as “James Albert Holland.”


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Commonwealth v. Albert, 987 A.2d 808 (Pa. Super. 2009) (unpublished

memorandum at 1-2), appeal denied, 991 A.2d 309 (Pa. 2010).

        On February 2, 1987, Holland filed a petition for collateral relief under

the Post Conviction Hearing Act, the predecessor to the PCRA. The trial court

denied relief, this Court affirmed on appeal, and the Pennsylvania Supreme

Court denied Holland’s petition for allowance of appeal. See Commonwealth

v. Albert, 551 A.2d 592 (Pa. Super. 1988) (unpublished memorandum),

appeal denied, 558 A.2d 530 (Pa. 1989). Thereafter, Holland sought relief

under the now-repealed 61 P.S. § 81, requesting modification of his sentence

due to a medical condition. Counsel was appointed, and filed an amended

petition on November 15, 2007, which the trial court denied.          This Court

subsequently affirmed the trial court’s ruling, and the Pennsylvania Supreme

Court denied Holland’s petition for allowance of appeal. See Albert, supra,

987 A.2d 808.

        On May 10, 2017, Holland filed a pro se petition for writ of mandamus.4

He alleged his indictment was “totally defective” because the complainant,

Edward Koeach, did not appear “before the justice of the peace’s hearing,”

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4   The Pennsylvania Supreme Court has explained:

        A proceeding in mandamus is an extraordinary action at common
        law, designed to compel performance of a ministerial act or
        mandatory duty where there exists a clear legal right in the
        plaintiff, a corresponding duty in the defendant, and want of any
        other adequate and appropriate remedy.

Coady v. Vaughn, 770 A.2d 287, 289 (Pa. 2001).

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which Holland waived, or before the indicting grand jury. Petition for Writ of

Mandamus, 5/10/17, at 2. Moreover, he claimed his “accuser” identified him

during an improper show-up at the jail under a ruse that Holland was meeting

with his attorney. Id. at 1. Holland also asserted another witness, William

Moore, who was not named in the indictment, testified against him at trial as

a victim of the crime. See id. Therefore, Holland insisted he was denied

procedural due process. See id. at 3. On August 10, 2017, the PCRA court

issued notice of its intent to treat the request for relief as a PCRA, and dismiss

it without first conducting an evidentiary hearing pursuant to Pa.R.Crim.P.

907. Holland did not file a response to the court’s Rule 907 notice, and on

September 28, 2017, the PCRA court dismissed the petition as patently

frivolous. This timely appeal followed.5

       Holland raises two issues in his brief, which we will consider in reverse

order. First, he contends the PCRA court erred in converting his petition for

writ of mandamus to a PCRA petition, rather than a state habeas petition,6 so

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5We note the PCRA court’s order dismissing the petition was entered on the
docket on October 2, 2017. Therefore, Holland’s notice of appeal, filed on
October 31, 2017, was timely.

      On November 14, 2017, the trial court ordered Holland to filed a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Holland complied with the court’s directive, and filed a concise statement on
December 11, 2017.

6 Holland appears to concede a petition for writ of mandamus was not the
proper vehicle for him to obtain the relief he seeks. See Holland’s Brief at 7-
9.


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that he would not be subject to the PCRA’s time limitations. See Holland’s

Brief at 7-9. Furthermore, he argues his grand jury indictment should have

been quashed by the trial court because (1) the complainant’s name was not

“endorsed on the indictment,” and (2) Holland was subject to an improper

show-up while in prison. Holland’s Brief at 5.

       Preliminarily, we note Holland’s claim that the court improperly treated

his request for relief as a PCRA petition, was not included in either his

Pa.R.A.P. 1925(b) concise statement, or the statement of questions section of

his brief. Rather, in both documents he raised the following two issues: (1)

his rights were violated when “the trial court failed to quash the indictment[;]”

and (2) the PCRA court erred “when it refused to vacate [his] judgment of

sentence[.]” Concise Statement of Errors on this Appeal, 12/11/2017, at 1-

2; Holland’s Brief at 2.        Accordingly, Holland’s contention that the court

improperly reframed his request for relief as a PCRA petition is waived.7 See

Commonwealth v. Garland, 63 A.3d 339, 342 (Pa. Super. 2013).

       Next, Holland insists the PCRA court erred in failing to grant him relief

regarding his claim that the trial court should have quashed his indictment.

See Holland’s Brief at 7. Our review of an order denying PCRA relief is “limited

to a determination of whether the record supports the PCRA court’s factual


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7 We emphasize, also, Holland did not respond to the PCRA court’s Rule 907
notice, filed on August 10, 2017, when the court informed him it was treating
his petition for writ of mandamus as a PCRA petition. See Notice of Intent to
Dismiss, 8/10/2017.

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findings    and    whether     its   legal     conclusions   are   free   from   error.”

Commonwealth v. Williams, 141 A.3d 440, 452 (Pa. 2016).

       Here, the PCRA court found Holland’s petition was untimely filed, and

Holland failed to plead or prove the applicability of any one of the

time-for-filing exceptions set forth in 42 Pa.C.S. § 9545(b)(1). See Trial Court

Opinion, 2/13/2018, at 1-2. We agree.

       The requirement that a PCRA petition must be filed within one year of

the date the underlying judgment becomes final “is mandatory and

jurisdictional in nature.” Commonwealth v. Taylor, 67 A.3d 1245, 1248

(Pa. 2013), cert. denied, 134 S.Ct. 2695 (U.S. 2014).               “The court cannot

ignore a petition’s untimeliness and reach the merits of the petition.” Id.

       A PCRA petition must be filed within one year of the date the underlying

judgment becomes final. See 42 Pa.C.S. § 9545(b)(1). Holland’s judgment

of sentence was final on December 1, 1977, thirty days after this Court

quashed his direct appeal, and he failed to petition the Pennsylvania Supreme

Court for review. Therefore, he had until December 1, 1978, to file a timely

PCRA petition,8 and the one filed herein on May 10, 2017, is manifestly

untimely.


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8We recognize the 1995 amendments to the PCRA provided a one-year grace
period for a petitioner to file a first petition, when his judgment of sentence
was final before the effective date of the amendment, that is, January 16,
1996. See Commonwealth v. Albrecht, 994 A.2d 1091, 1093 n.2 (Pa.
2010). The present petition, however, was Holland’s second, and, in any
event, was filed more than 20 years later.

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       Nevertheless, an untimely petition may still be considered if “the petition

alleges and the petitioner proves” one of the time-for-filing exceptions set

forth in Section 9545(b)(1).         See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).   Here,

Holland did not address the applicability of a timing exception in either his

petition, or his appellate brief. Accordingly, we agree with the trial court’s

assessment that Holland’s petition if manifestly untimely, and Holland is

entitled to no relief.9

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/28/2018




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9 We note, too, it appears Holland is no longer serving a sentence for the
conviction he is challenging. The PCRA requires a petitioner prove that at the
time relief is granted, he is “currently serving a sentence of imprisonment,
probation or parole for the crime[.]” 42 Pa.C.S. § 9543(a)(1)(i) (emphasis
supplied). In a prior appeal, a panel of this Court explained that Holland began
serving his sentence for the present offenses on April 14, 1996. See Albert,
supra, 987 A.2d 808 (unpublished memorandum at 2 n.1). Although that
prior decision aggregated the sentences imposed for his later convictions of
escape in 1980, and possessing a weapon or implement of escape in 1981,
the twenty-year maximum sentence for the present offenses would have
expired on April 14, 2016.

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