J-S64025-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA EX                 IN THE SUPERIOR COURT OF
REL. BRAD E. JONES                                    PENNSYLVANIA

                    v.

LOUIS FOLINO, WARDEN

APPEAL OF: BRAD E. JONES                             No. 560 WDA 2014


            Appeal from the PCRA Order Entered March 12, 2014
             In the Court of Common Pleas of Allegheny County
                         Criminal Division at No(s):
                          CP-02-CR-0000801-2002
                          CP-02-CR-0014284-2001
                               GD 13-013079


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY BENDER, P.J.E.:                  FILED NOVEMBER 18, 2014

      Appellant, Brad E. Jones, appeals pro se from the trial court’s March

12, 2014 order denying his “Writ of Habeas Corpus Ad Subjiciendum” (Writ

of Habeas Corpus). We affirm.

      On March 14, 2002, Appellant was convicted by a jury of third-degree

murder, corruption of minors, abuse of a corpse, carrying a firearm without

a license, and criminal conspiracy.      His convictions stemmed from his

shooting and killing Darrell Spencer, who had been Appellant’s friend, after a

night of drinking and taking drugs.        Appellant was sentenced to an

aggregate term of 21½ to 43 years’ incarceration. He filed a direct appeal,

which this Court dismissed on April 9, 2003, due to Appellant’s failure to file

a brief.
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      On March 25, 2004, Appellant filed a pro se petition for relief under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. Counsel was

appointed and filed an amended petition on Appellant’s behalf. That petition

was ultimately dismissed on September 20, 2004. Appellant appealed, and

after this Court affirmed, our Supreme Court denied his petition for

allowance of appeal. Commonwealth v. Jones, 883 A.2d 689 (Pa. Super.

2005) (unpublished memorandum), appeal denied, 897 A.2d 452 (Pa.

2006).   Appellant filed a second pro se PCRA petition on March 27, 2007,

which was denied on June 1, 2007.      Appellant did not file an appeal from

that order.

      On July 15, 2013, Appellant filed his pro se Writ of Habeas Corpus.

Therein, Appellant argued that he was being unlawfully detained because the

third-degree murder statute (18 Pa.C.S. § 2502) is unconstitutional and,

thus, the trial court did not have subject matter jurisdiction over his case.

The court treated this filing as a PCRA petition and issued a Pa.R.Crim.P. 907

notice of its intent to dismiss on February 20, 2014. Appellant filed a pro se

response, but on March 12, 2014, the PCRA court issued an order dismissing

Appellant’s petition. He filed a timely notice of appeal on March 24, 2014, as

well as a timely concise statement of errors complained of on appeal




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pursuant to Pa.R.A.P. 1925(b).1 Herein, he presents two questions for our

review, which we reproduce verbatim:

        I. Whether the portion of 42 Pa.C.S. §9541 et seq. where it
        states “the action (PCRA)… shall be the sole means of obtaining
        relief and encompasses all other common law…… remedies for
        the same purpose that exist….. including habeas corpus and
        other statutes purporting to do the same violate the U.S. and/or
        PA. Constitutions?

        II. Whether the United States Supreme Court’s Ruling in
        Alleyne[2] deprived the lower court of subject-matter
        jurisdiction, to apply 42 PA.C.S. §9712 in the appellant’s case,
        rendering his sentence illegal?

Appellant’s Brief at ii.

        First, Appellant argues that the court erred by treating his Writ of

Habeas Corpus as a PCRA petition. He basically contends – in a lengthy and

confusing discussion – “that the PCRA can not [sic] displace the common law

writ of Habeas Corpus.” Appellant’s Brief at 7 (citing Commonwealth ex.

rel. Levine v. Fair, 146 A.2d 834 (Pa. 1958) (finding that the Habeas

Corpus Act of 1937 did not displace the more extensive habeas corpus
____________________________________________


1
  We note that on March 13, 2014, Appellant filed another pro se document
entitled “Petition for Common Law Writ of Habeas Corpus Ad-Subjiciendum”
(Writ of Habeas Corpus II). Appellant claims in his appellate brief that he is
appealing from the denial of Writ of Habeas Corpus II, not from the denial of
his July 15, 2013 Writ of Habeas Corpus. However, in his pro se notice of
appeal, Appellant states that he is appealing from the March 12, 2014 order,
which denied his Writ of Habeas Corpus. Indeed, it does appear that the
trial court issued an order disposing of Appellant’s Writ of Habeas Corpus II.
Therefore, we consider this appeal as stemming from the denial of
Appellant’s Writ of Habeas Corpus.
2
    Alleyne v. United States, 133 S.Ct. 2151 (2013).



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remedy found at common law, which “may issue in all sorts of cases where it

is shown to the court that there is probable cause for believing that a person

is restrained of his liberty unlawfully or against the due course of law”).

      Appellant’s claim is meritless. This Court has stated:

      It is well-settled that the PCRA is intended to be the sole means
      of achieving post-conviction relief. 42 Pa.C.S. § 9542;
      Commonwealth v. Haun, 613 Pa. 97, 32 A.3d 697 (2011).
      Unless the PCRA could not provide for a potential remedy, the
      PCRA statute subsumes the writ of habeas corpus.
      [Commonwealth v.] Fahy, [737 A.2d 214,] 223–224
      [(Pa.1999)]; Commonwealth v. Chester, 557 Pa. 358, 733
      A.2d 1242 (1999). Issues that are cognizable under the PCRA
      must be raised in a timely PCRA petition and cannot be raised in
      a habeas corpus petition. See Commonwealth v. Peterkin,
      554 Pa. 547, 722 A.2d 638 (1998); see also Commonwealth
      v. Deaner, 779 A.2d 578 (Pa. Super. 2001) (a collateral petition
      that raises an issue that the PCRA statute could remedy is to be
      considered a PCRA petition). Phrased differently, a defendant
      cannot escape the PCRA time-bar by titling his petition or motion
      as a writ of habeas corpus.FN3

         FN3. The common law writ of habeas corpus has not been
         eliminated. In both Commonwealth v. West, 595 Pa.
         483, 938 A.2d 1034 (2007)[,] and Commonwealth v.
         Judge, 591 Pa. 126, 916 A.2d 511 (2007), our Supreme
         Court held that claims that fall outside the sphere of the
         PCRA can be advanced via a writ of habeas corpus.

Commonwealth v. Taylor, 65 A.3d 462, 465-466 (Pa. Super. 2013).

      Here, the claim raised in Appellant’s Writ of Habeas Corpus is

cognizable under the PCRA. Again, in that petition, Appellant argued that he

is being unlawfully detained because the third-degree murder statute under

which he was convicted is unconstitutional and, as such, the trial court did

not have subject matter jurisdiction over his case.              This claim is



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encompassed within 42 Pa.C.S. § 9543(a)(2)(viii) (stating a petitioner may

be eligible for PCRA relief if he proves that his conviction or sentence

resulted   from    “[a]   proceeding   in   a   tribunal   without   jurisdiction”).

Accordingly, the court properly treated Appellant’s Writ of Habeas Corpus as

a PCRA petition.

      We must next assess the timeliness of Appellant’s petition. Appellant’s

judgment of sentence became final on May 9, 2003, thirty days after this

Court dismissed his appeal from his judgment of sentence. See 42 Pa.C.S.

§ 9545(b)(3) (stating judgment of sentence becomes final at the conclusion

of direct review or the expiration of the time for seeking the review);

Pa.R.A.P. 1113(a) (stating “a petition for allowance of appeal shall be filed

with the Prothonotary of the Supreme Court within 30 days of the entry of

the order of the Superior Court sought to be reviewed”).              Accordingly,

Appellant had until May 9, 2004, to file a timely PCRA petition, making his

instant petition filed on July 15, 2013, patently untimely.

      The PCRA time limitations implicate our jurisdiction and may not be

altered or disregarded in order to address the merits of a petition.

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (stating

PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded to address the merits of the petition); Commonwealth v.

Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002) (holding the Superior

Court lacks jurisdiction to reach merits of an appeal from an untimely PCRA

petition). Under the PCRA, any petition for post-conviction relief, including a

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second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the exceptions set forth

in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. That section states, in relevant

part:

        (b) Time for filing petition.--

             (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, unless the petition
             alleges and the petitioner proves that:

                (i) the failure to raise the claim previously was the
                result of interference by government officials with
                the presentation of the claim in violation of the
                Constitution or laws of this Commonwealth or the
                Constitution or laws of the United States;

                (ii) the facts upon which the claim is predicated were
                unknown to the petitioner and could not have been
                ascertained by the exercise of due diligence; or

                (iii) the right asserted is a constitutional right that
                was recognized by the Supreme Court of the United
                States or the Supreme Court of Pennsylvania after
                the time period provided in this section and has been
                held by that court to apply retroactively.

42 Pa.C.S. § 9545(b)(1)(i)-(iii).      Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

        Appellant does not expressly state which timeliness exception he

satisfies.     Instead, he argues that the United States Supreme Court’s

decision in Alleyne renders his sentence illegal. In Alleyne, the Court held

that any fact that serves to aggravate the minimum sentence must be found



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by the fact-finder beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2160-

2161.     Here, Appellant contends that the court imposed a mandatory

minimum sentence under 42 Pa.C.S. § 9712.1, and the imposition of that

sentence violates the holding of Alleyne.

        We construe Appellant’s argument as an attempt to invoke the

exception set forth in section 9545(b)(1)(iii).      However, Appellant first

asserted his claim that Alleyne invalidates his sentence in his brief to this

Court, which was filed on July 3, 2014, over one year after the Alleyne

decision was issued on June 17, 2013. Accordingly, Appellant has failed to

comply with the 60-day requirement of section 9545(b)(2). Consequently,

Appellant’s petition is untimely and the PCRA court did not err in denying it.

        Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2014




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