J-S83004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
JEFFREY GIDDINGS,                        :
                                         :
                   Appellant             :    No. 1092 EDA 2017

               Appeal from the PCRA Order February 28, 2017
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No.: CP-51-CR-0514881-1991

BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                                FILED MAY 16, 2018

      Appellant, Jeffrey Giddings, appeals pro se from the February 28, 2017

Order entered in the Philadelphia County Court of Common Pleas dismissing

as untimely his fourth Petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546, and his Petition for Writ of Habeas

Corpus. We affirm.

      This Court previously set forth the underlying facts, so we will not

repeat them here. See Commonwealth v. Giddings, 640 A.2d 471 (Pa.

Super. 1994) (unpublished memorandum); Commonwealth v. Giddings,

832 A.2d 536 (Pa. Super. 2003).         In summary, on January 25, 1991,
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Appellant1 shot and killed Lawrence Hollerway during a robbery of a

Philadelphia delicatessen.

        After a bench trial, the Honorable David N. Savitt convicted Appellant

of First-Degree Murder, four counts of Robbery, Criminal Conspiracy, and

Possessing an Instrument of Crime.2 On October 21, 1992, the trial court

imposed the mandatory sentence of life imprisonment.3

        On January 28, 1994, this Court affirmed Appellant’s Judgment of

Sentence. Commonwealth v. Giddings, 640 A.2d 471 (Pa. Super. 1994)

(unpublished memorandum).               Appellant did not seek review by the

Pennsylvania Supreme Court.            Appellant’s Judgment of Sentence became

final on February 28, 1994, when his time for seeking review with the

Pennsylvania Supreme Court expired.4             See 42 Pa.C.S. § 9545(b)(3);

Pa.R.A.P. 1113.

        On February 6, 2002, Appellant filed a pro se PCRA Petition, his first,

in which he averred that his trial counsel was ineffective. The PCRA court

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1Appellant’s date of birth is December 5, 1971. At the time of the murder,
he was 19 years old.

2 18 Pa.C.S. § 2502(a); 18 Pa.C.S. § 3701; 18 Pa.C.S. § 903; and 18
Pa.C.S. § 907, respectively.

3  The trial court also imposed an aggregate term of 15 to 60 years’
incarceration to run consecutively. The certified record includes a copy of
the trial court’s October 21, 1992 sentencing order and related paperwork.

4   February 27, 1994, was a Sunday. See 1 Pa.C.S. § 1908.



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appointed counsel and eventually permitted counsel to withdraw pursuant to

Turner/Finley.5 On October 2, 2002, the PCRA court dismissed Appellant’s

PCRA Petition. This Court affirmed on July 30, 2003. Commonwealth v.

Giddings, 832 A.2d 536 (Pa. Super. 2003).

       Over the next several years, Appellant filed a second and third PCRA

Petition, each of which was dismissed as untimely.

       On July 17, 2013, Appellant filed a Petition for Writ of Habeas Corpus

arguing that he “is eligible for immediate relief from the unlawful restraint of

his liberty” because “there [] is no [s]entencing [o]rder … authorizing his

current incarceration render[ing] his detention unlawful[.]”6         Appellant

subsequently filed Amended Petitions on December 5, 2013, and October 17,

2014, and he appended several documents, including: (1) his April 12, 2013

“Standard Right-to-Know Request Form” seeking the “written Judgment of

Sentence Order from Philadelphia County signed by the sentencing judge[,]”

and (2) the Pennsylvania Department of Corrections’ “Agency Attestation of

Nonexistence of Records” stating that the requested records do not exist.



____________________________________________


5 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).

6 Appellant originally filed his July 17, 2013 Petition for Writ of Habeas
Corpus in the Civil Division of the Philadelphia County Court of Common
Pleas. On August 5, 2013, the Civil Division entered an Order transferring
Appellant’s Petition for Writ of Habeas Corpus to the Criminal Division.



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       On March 23, 2016, Appellant filed the instant pro se PCRA Petition

seeking to invoke Miller v. Alabama, 567 U.S. 460 (2012), and

Montgomery v. Louisiana, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016).7 On

February 28, 2017, the PCRA court dismissed the instant PCRA Petition

without a hearing after providing notice pursuant to Pa.R.Crim.P. 907.        In

the same Order, the court also denied Appellant’s Petition for Writ of Habeas

Corpus.

       Appellant timely filed a pro se Notice of Appeal. The PCRA court did

not order Appellant to file a Pa.R.A.P. 1925(b) Statement of Errors.         The

PCRA court filed a Pa.R.A.P. 1925(a) Opinion and opined that (1) Appellant’s

PCRA Petition was untimely, (2) no timeliness exception applied, and (3)

Appellant’s Petition for Writ of Habeas Corpus lacked merit.

       Appellant presents two issues for our review:

       [1.] Whether the trial court abused its discretion in dismissing
       the instant Petition for Writ of Habeas Corpus Ad Subjiciendum
       since Appellant is confined pursuant [sic] a [s]entencing [o]rder
       absent the statute under Pennsylvania law that the [j]udge
       received [s]tatutory [a]uthorization from to impose the
       sentence?

       [2.] Whether Appellant is entitled to Post Conviction Relief in the
       form of a new [s]entencing [h]earing as a result of after-

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7 In Miller, the U.S. Supreme Court held that it is unconstitutional for state
courts to impose an automatic life sentence without possibility of parole
upon a homicide defendant for a murder committed while the defendant was
a juvenile. The United States Supreme Court held in Montgomery that its
decision in Miller applies retroactively.



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      discovered mitigating evidence concerning recent finding i [sic]
      [b]rain [s]cience and [s]ocial [s]cience?

Appellant’s Brief at 3 (suggested answers omitted).

      We first address the issue presented in Appellant’s Petition for Writ of

Habeas Corpus and note the following general principles. We review a trial

court’s order denying a petition for writ of habeas corpus for an abuse of

discretion.     Rivera v. Pennsylvania Dep’t. of Corr., 837 A.2d 525, 528

(Pa. Super. 2003).

      The statutory remedy of habeas corpus empowers any judge of a court

of record to issue a writ “to inquire into the cause of detention.” 42 Pa.C.S.

§ 6502. Inherited from the common law, the ancient writ of habeas corpus

“lies to secure the immediate release of one who has been detained

unlawfully, in violation of due process.”   Commonwealth v. Wolfe, 605

A.2d 1271, 1272-73 (Pa. Super. 1992) (citations omitted).

      Traditionally, “the writ of habeas corpus has functioned only to test the

legality of the petitioner’s commitment and detention.”      Commonwealth

ex. rel. Bryant v. Hendrick, 280 A.2d 110, 112 (Pa. 1971).          Insofar as

habeas corpus is an extraordinary remedy, a prisoner may only invoke it

“when remedies in the ordinary course have been exhausted or are not

available[.]”    Wolfe, 605 A.2d at 1273.   Specifically, this Court has noted

the writ generally is unavailable to prisoners in custody serving a judgment

of sentence that has been affirmed on appeal due to “the presumption of

regularity [that] follows the judgment.” Id.

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      42 Pa.C.S. § 9764(b)(5) requires a sentencing court to provide to a

county correctional facility various items, including “[a] written, sealed

sentencing order from the county” within ten days of the entry of a

judgment of sentence.       Where the certified record includes a prisoner’s

sentencing order, that prisoner is not entitled to relief based on an alleged

violation of Section 9764.    Commonwealth v. Dozier, 99 A.3d 106, 115

(Pa. Super. 2014).      See also Joseph v. Glunt, 96 A.3d 365, 371 (Pa.

Super. 2014) (holding that it does not matter whether the sentencing order

is in the possession of any administrative or judicial body other than the

certified record retained by the court of common pleas).

      After citing various cases regarding a trial court’s sentencing authority,

Appellant fundamentally seeks relief for an alleged violation of 42 Pa.C.S. §

9764(b)(5).       Although difficult to ascertain its exact legal basis, his

argument seems to be that, because his request to the Department of

Corrections for a copy of his sentencing order has been rebuffed, the

sentencing order must not exist and, therefore, he is being held illegally.

      Regardless of whether Appellant was able to procure a copy of his

sentencing order from the Department of Corrections, our review confirms

that the certified record contains the October 21, 1992 sentencing Order

setting forth the Judgment of Sentence recited above. Insofar as Appellant

bases his argument on an assumption of the nonexistence of this Order, the

argument fails.


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      As in Joseph and Dozier, the certified record in this case confirms

and documents Appellant’s Judgment of Sentence. Furthermore, Appellant’s

Judgment of Sentence was affirmed on appeal. Therefore, we find no basis

for habeas corpus relief and the trial court properly exercised its discretion in

denying Appellant’s Petition for Writ of Habeas Corpus.

      In his second issue, Appellant presents a claim with respect to the trial

court’s dismissal of his PCRA Petition invoking Miller and Montgomery. We

review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its Order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014).

      Before addressing the merits of Appellant’s PCRA claims, we must first

determine whether we have jurisdiction to entertain the underlying PCRA

Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)

(explaining that the timeliness of a PCRA Petition is a jurisdictional

requisite).

      Under the PCRA, any Petition “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final[.]” 42 Pa.C.S. § 9545(b)(1). A Judgment of Sentence becomes final

“at the conclusion of direct review, including discretionary review in the

Supreme Court of the United States and the Supreme Court of Pennsylvania,

or at the expiration of time for seeking the review.”            42 Pa.C.S. §

9545(b)(3). The PCRA’s timeliness requirements are jurisdictional in nature,


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and a court may not address the merits of the issues raised if the PCRA

petition was not timely filed. Commonwealth v. Albrecht, 994 A.2d 1091,

1093 (Pa. 2010).

       Here, Appellant’s Judgment of Sentence became final on February 28,

1994, when his time for seeking review with the Pennsylvania Supreme

Court expired. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 1113 (allowing thirty

days to file a Petition for Allowance of Appeal).8 Because Appellant filed the

instant Petition more than 22 years after his Judgment of Sentence became

final, the PCRA court properly concluded that Appellant’s Petition is facially

untimely. PCRA Court Opinion, dated 2/28/17, at 2.

       Pennsylvania courts may consider an untimely PCRA petition, however,

if the appellant pleads and proves one of the three exceptions set forth in 42

Pa.C.S. § 9545(b).       Here, in citing the “brain science” discussed in Miller

and Montgomery, Appellant first attempts to invoke the timeliness

exception under Section 9545(b)(1)(ii), which provides that a petitioner may

seek relief when “the facts upon which the claim is predicated were unknown



____________________________________________


8 Appellant’s Judgment of Sentence became final before the effective date of
the 1995 amendments to the PCRA, which included a grace period of one
year for petitioners like Appellant. See Commonwealth v. Thomas, 718
A.2d 326, 329 (Pa. Super. 1998). However, the grace period applied only to
PCRA petitions filed by January 16, 1997. Id. See also 42 Pa.C.S. §
9545(b)(1). Appellant filed this PCRA Petition on March 23, 2016, more than
19 years after the PCRA deadline.



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to the petitioner and could not have been ascertained by the exercise of due

diligence[.]” 42 Pa.C.S. § 9545(b)(1)(ii).

       Our Supreme Court has expressly held that “subsequent decisional law

does not amount to a new ‘fact’ under [S]ection 9545(b)(1)(ii)[.]”

Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011).                 Given this

binding precedent, Appellant’s first argument merits no relief.9

       Appellant also attempts to invoke the timeliness exception under

Section 9545(b)(1)(iii), which provides that a petitioner may seek relief

when there 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)(iii). Relying on research discussed

in Miller and Montgomery, Appellant essentially argues that he is entitled

to relief because, as a nineteen-year-old offender, he is similarly situated as

a juvenile homicide defendant given that “his biological process was not


____________________________________________


9 Moreover, in a summary argument with no citations, Appellant avers that
the “brain science” discussed in Miller and Montgomery is the “after-
discovered evidence” that applies in his case. Appellant’s Brief at 14. The
same principle in Watts, 23 A.3d at 987, applies to the new information
contained within the judicial decision upon which Appellant relies.
Additionally, Appellant failed to plead and prove that he filed the instant
Petition within 60 days of the publication of that research discussed in Miller
and Montgomery. These studies were published years before those judicial
decisions and Appellant does not successfully demonstrate why he could not
have discovered these facts any earlier when they were available.



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complete until 12/5/96, when he turned 25 years old[.]” Appellant’s Brief at

14.

      This Court has twice rejected nearly identical arguments for purposes

of invoking the timeliness exception at Section 9545(b)(1)(iii).        See

Commonwealth v. Cintora, 69 A.3d 759, 764 (Pa. Super. 2013) (holding

(1) petitioners who were older than eighteen at the time they committed

murder are not within the ambit of the Miller decision and therefore may

not rely on that decision to bring themselves within the time-bar exception

in Section 9545(b)(1)(iii); and (2) “contention that a newly-recognized

constitutional right should be extended to others does not render [a]

petition [seeking such an expansion of the right] timely pursuant to section

9545(b)(1)(iii).”) (emphasis in original), abrogated in part by Montgomery,

supra.   See also Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.

Super. 2016) (same, while acknowledging that Cintora’s additional holding,

that Miller had not been applied retroactively, was “no longer good law”

after Montgomery).

      Appellant was 19 years old, and therefore not a juvenile, when he

murdered Lawrence Hollerway on January 25, 1991.          Thus, Miller and

Montgomery are inapplicable to Appellant.      Accordingly, the PCRA court

properly concluded that Appellant failed to plead and prove any of the

timeliness exceptions provided in 42 Pa.C.S. § 9545(b)(1), and properly

dismissed Appellant’s Petition as untimely. See PCRA Court Opinion at 3-4.


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      The record supports the PCRA court’s findings and its Order is

otherwise free of legal error. Accordingly, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/16/18




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