J-S17008-18

                             2018 PA Super 159


COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

DEVIN ROUSE,

                         Appellant                   No. 653 EDA 2017


         Appeal from the PCRA Court Order Entered January 13, 2017
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0713202-2002


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

OPINION BY BENDER, P.J.E.:                            FILED JUNE 08, 2018

      Appellant, Devin Rouse, appeals from the order denying his petition for

a writ of habeas corpus (“Habeas Petition”), which the lower court treated as

an untimely petition filed pursuant the Post-Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. After careful review, we affirm.

      The facts underlying Appellant’s 2005 conviction for second-degree

murder, robbery, carrying a firearm without a license, and possessing an

instrument of crime are not germane to this appeal. After Appellant filed a

direct appeal, this Court affirmed his judgment of sentence on April 13, 2006,

and our Supreme Court subsequently denied his petition for allowance of

appeal from our decision.   Commonwealth v. Rouse, 902 A.2d 981 (Pa.

Super. 2006) (unpublished memorandum), appeal denied, 909 A.2d 304 (Pa.

2006).
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        Appellant filed his first PCRA petition on October 10, 2007, and

appointed counsel filed an amended petition on his behalf on September 26,

2008. The PCRA court dismissed that petition without a hearing on March 5,

2009.      This Court vacated that order, and remanded for an evidentiary

hearing.     Commonwealth v. Rouse, 38 A.3d 925 (Pa. Super. 2011)

(unpublished memorandum).             That hearing occurred on January 27, 2014.

Subsequently, the PCRA court granted Appellant’s PCRA petition, ordering a

new trial. The Commonwealth appealed. On January 12, 2016, this Court

reversed the PCRA court’s order, and our Supreme Court denied Appellant’s

petition for allowance of appeal from that decision.          Commonwealth v.

Rouse, 136 A.3d 1029 (Pa. Super. 2016) (unpublished memorandum), appeal

denied, 169 A.3d 30 (Pa. 2017).

        The instant matter began when Appellant filed his pro se Habeas Petition

on September 13, 2016. Therein, he claimed that the sentencing statute for

second-degree murder, 18 Pa.C.S. § 1102(b), is void for vagueness, in

violation of his due process rights under the Constitution of the United States

and/or of this Commonwealth.1            Appellant also specifically averred in his
____________________________________________


1Section 1102(b) mandates that “a person who has been convicted of murder
of the second degree … shall be sentenced to a term of life imprisonment.”
Appellant claims that Section 1102(b) is void for vagueness because it fails to
give adequate notice that a sentence of life imprisonment is, in fact, life
imprisonment without the possibility of parole. See Appellant’s Habeas
Petition, 9/13/16, at 3 (unnumbered pages); but see Castle v.
Commonwealth, Pennsylvania Bd. of Probation and Parole, 554 A.2d
625, 628 (Pa. Cmwlth. 1989) (holding that Section 1102(b) imposes a



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Habeas Petition that his claim was not cognizable under the PCRA. Habeas

Petition at 1-2.

       The trial court, concluding that Appellant’s claim asserted the illegality

of his sentence, treated his Habeas Petition as a PCRA petition subject to the

PCRA’s timeliness provisions. Trial Court Opinion (“TCO”), 5/5/17, at 3-4. On

that basis, the PCRA court determined that Appellant’s petition was untimely,

and that none of the PCRA’s timeliness exceptions applied.          As such, on

November 10, 2016, the court issued notice, pursuant to Pa.R.Crim.P. 907,

that it intended to dismiss Appellant’s Habeas Petition without a hearing.

Appellant did not file a response. On January 13, 2017, the trial court entered

an order dismissing Appellant’s Habeas Petition.

       Appellant filed a timely notice of appeal. Appellant did not file, and the

PCRA court did not order him to file, a Pa.R.A.P. 1925(b) statement. The trial

court issued its Rule 1925(a) opinion on May 5, 2017.

       Appellant now presents the following question for our review:

       Did the lower court err in construing Appellant's state habeas
       corpus petition as a 2nd PCRA petition (and thereby time-barring
       it), when the PCRA statutes do not clearly state whether the issue
       presented is cognizable under the PCRA; whereas the writ of state
       habeas corpus may be sought to inquire into the cause of
       detention "under any pretense whatsoever[?"]

Appellant’s Brief at 5.

____________________________________________


minimum term of incarceration of life imprisonment, thereby prohibiting the
Board of Probation and Parole from considering parole for individuals convicted
of second-degree murder). Appellant acknowledges the Castle decision, but
claims it was wrongfully decided.

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      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error.        Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the

timeliness of Appellant’s Habeas Petition, which was construed by the lower

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

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

judgment of sentence becomes final, unless one of the following exceptions

set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (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



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            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).

      Instantly, Appellant makes no argument that his Habeas Petition is

timely under Section 9545(b)(1). Instead, he claims that the PCRA court erred

by construing his Habeas Petition as a PCRA petition. Specifically, he asserts

that his void-for-vagueness claim, directed at the sentencing provision for

second-degree murder applied in his case, is not cognizable under the PCRA

statute and, therefore, that the statute’s timeliness provisions do not apply to

his Habeas Petition. For the following reasons, we agree.

      Section 9542 provides, in pertinent part, that:

      This subchapter provides for an action by which persons convicted
      of crimes they did not commit and persons serving illegal
      sentences may obtain collateral relief. The action established in
      this subchapter shall be the sole means of obtaining
      collateral relief and encompasses all other common law and
      statutory remedies for the same purpose that exist when this
      subchapter takes effect, including habeas corpus….

42 Pa.C.S. § 9542 (emphasis added).         Appellant correctly notes that this

provision exists in tension with the eligibility-for-relief provisions of the PCRA

statute. Section 9543 provides, in pertinent part, as follows:

      (a) General rule.--To be eligible for relief under this subchapter,
      the petitioner must plead and prove by a preponderance of the
      evidence all of the following:

         (1) That the petitioner has been convicted of a crime under
         the laws of this Commonwealth and is at the time relief is
         granted:

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           (i) currently serving a sentence of imprisonment,
           probation or parole for the crime;

           (ii) awaiting execution of a sentence of death for the
           crime; or

           (iii) serving a sentence which must expire before the
           person may commence serving the disputed sentence.

        (2) That the conviction or sentence resulted from one or
        more of the following:

           (i) A violation of the Constitution of this
           Commonwealth or the Constitution or laws of the
           United States which, in the circumstances of the
           particular case, so undermined the truth-determining
           process that no reliable adjudication of guilt or
           innocence could have taken place.

           (ii) Ineffective assistance of counsel which, in the
           circumstances of the particular case, so undermined
           the truth-determining process that no reliable
           adjudication of guilt or innocence could have taken
           place.

           (iii) A plea of guilty unlawfully induced where the
           circumstances make it likely that the inducement
           caused the petitioner to plead guilty and the petitioner
           is innocent.

           (iv) The improper obstruction by government officials
           of the petitioner's right of appeal where a meritorious
           appealable issue existed and was properly preserved
           in the trial court.
                                        …
           (vi) The unavailability at the time of trial of
           exculpatory evidence that has subsequently become
           available and would have changed the outcome of the
           trial if it had been introduced.

           (vii) The imposition of a sentence greater than
           the lawful maximum.

           (viii) A proceeding in a tribunal without jurisdiction.

42 Pa.C.S. § 9543(a) (emphasis added).


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      There is no dispute that the Appellant’s Habeas Petition satisfies Section

9543(a)(1), as Appellant is currently serving a sentence of imprisonment.

However, the only provisions of Section 9543(a)(2) that might arguably

pertain to sentencing claims which, like the one presented by Appellant in his

Habeas Petition, do not also pertain to matters of underlying guilt or

innocence, are Sections 9543(a)(2)(vii) and (viii).            As the jurisdiction of

trial/sentencing   court   is   not    in   question,   that   leaves   only   Section

9543(a)(2)(vii), which permits relief under the PCRA statute for claims

involving the “imposition of a sentence greater than the lawful maximum.” 42

Pa.C.S. § 9543(a)(2)(vii). Appellant asserts that the void-for-vagueness claim

set forth in the Habeas Petition (essentially a due process claim), does not

posit that his sentence exceeds the lawful maximum for second-degree

murder and, therefore, is not a claim that is eligible for relief under the PCRA

statute.

      The trial court does not indicate in its opinion why it construed

Appellant’s void-for-vagueness argument as an illegal-sentencing claim that

is cognizable under the PCRA. Instead, the court baldly states, without citing

any pertinent authority and without offering any analysis, that “Appellant’s

issue is cognizable under the PCRA.”               TCO at 3-4.          Likewise, the

Commonwealth argues that: “Essentially, [Appellant] claims that he received

a sentence greater than the lawful maximum; an issue which is squarely

cognizable under the PCRA.”           Commonwealth’s Brief at 5.        However, the

Commonwealth also provides no support for this assertion in its brief.

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       Appellant does not explicitly claim that his sentence exceeds the lawful

maximum, nor is his claim easily construed as such. Instead, he contends

that—in crafting the sentencing statute for second-degree murder—the

legislature failed to give adequate or reasonable notice of the penalty for that

offense, especially in light of other sentencing provisions, such as the

minimum/maximum rule.2 If anything, Appellant is challenging the minimum

sentence imposed (that is, that no minimum sentence was imposed); he does

not claim that his sentence exceeded the lawful maximum.

       Nor does Appellant’s claim fall within the well-recognized categories of

illegal sentencing issues that are cognizable under the PCRA under applicable

case law.

       The phrase ‘illegal sentence’ is a term of art in Pennsylvania Courts
       that is applied to three narrow categories of cases. Those
       categories are: “(1) claims that the sentence fell ‘outside of the
       legal parameters prescribed by the applicable statute’; (2) claims
       involving merger/double jeopardy; and (3) claims implicating the
       rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348,
       147 L.Ed.2d 435 (2000).”

Commonwealth v. Munday, 78 A.3d 661, 664 (Pa. Super. 2013) (citations

omitted). The latter category includes claims that arise under the progeny of

Apprendi, including Alleyne v. United States, 570 U.S. 99 (2013).

Additionally, “[t]his Court has also held that claims pertaining to the Eighth

Amendment's Cruel and Unusual Punishment Clause also pertain to the
____________________________________________


2 When imposing a sentence of “total confinement,” 42 Pa.C.S. § 9756(a),
“[t]he court shall impose a minimum sentence of confinement which shall not
exceed one-half of the maximum sentence imposed[,]” 42 Pa.C.S. §
9756(b)(1) (emphasis added).

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legality of the sentence.” Commonwealth v. Lawrence, 99 A.3d 116, 122

(Pa. Super. 2014). None of these categories apply to Appellant’s issue, which

is grounded in due process concerns.

     Lawrence is instructive here. In that case, the appellant challenged

the constitutionality of the sentencing provision for juveniles convicted of

murder, 18 Pa.C.S. § 1102.1, arguing, inter alia, that the statute violated

equal protection and ex post facto principles. Lawrence, 99 A.3d at 118. In

order to escape waiver concerns, the appellant argued that his claims

implicated the legality of his sentence.    However, the Lawrence Court

determined those issues were not illegal-sentencing claims, despite the fact

that they targeted a sentencing statute. The Court reasoned that:

            In our view, there is a meaningful difference between the
     remaining two arguments [the a]ppellant raises in this case and
     issues pertaining to the Eighth Amendment, merger, Apprendi
     and Alleyne. The Eighth Amendment, merger, Apprendi, and
     even Alleyne all directly circumscribe the trial court's sentencing
     process and sentencing authority. Stated another way, the goal
     of the Cruel and Unusual Punishment Clause, the merger doctrine,
     Apprendi and Alleyne is to protect defendants from the
     imposition of punishments by trial judges that are
     unconstitutional, imposed through unconstitutional processes, or
     are a “greater punishment than the legislature intended.”
     [Commonwealth v.] Andrews, [768 A.2d 309, 313 (Pa. 2001)].
     However, as is relevant in this case, the Equal Protection Clause
     and the Ex Post Facto Clauses serve to restrict legislative power.
     [The a]ppellant does not argue that the trial court did not follow
     Section 1102.1's mandate or text in carrying out its traditional
     sentencing function. Nor does Appellant argue that any part of
     the sentencing process was unconstitutional.          Rather, [the
     a]ppellant argues that the General Assembly passed a statute
     that, in his view, unconstitutionally treats some juveniles
     differently than others, and retroactively changes the punishment
     for the crime after it was committed. These arguments do not

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      address the same concerns as the Eighth Amendment, the merger
      doctrine, Apprendi and Alleyne. Because [the a]ppellant's Equal
      Protection and Ex Post Facto Clause arguments directly seek
      protection from legislatures, not judges, we hold that these
      arguments fall into the category of “a sentencing issue that
      presents a legal question [rather than a claim that the] sentence
      [is] illegal.” Commonwealth v. Cartrette, 83 A.3d 1030, 1036
      n.5 (Pa. Super. 2013) (en banc) (citation omitted).

Lawrence, 99 A.3d at 123–24 (some internal citations omitted, emphasis in

original).

      Likewise, here, Appellant’s void-for-vagueness claim is a sentencing

issue that presents a legal question that is qualitatively distinct from the

categories of illegal sentences recognized by our courts. It does not challenge

the sentencing court’s authority or actions insomuch as it challenges the

legislature’s ostensible failure to provide adequate notice of the penalty for

second-degree murder.

      However, Appellant’s void-for-vagueness claim, just like all claims (but

for the three categories of illegal-sentencing claims, see Munday, supra), is

subject to waiver. “Habeas corpus is an extraordinary remedy and is available

after other remedies have been exhausted or ineffectual or nonexistent. It

will not issue if another remedy exists and is available.” Commonwealth ex

rel. Johnson v. Bookbinder, 247 A.2d 644, 646 (Pa. Super. 1968).             As

Appellant’s claim could have been raised at his sentencing hearing, or in a

post-sentence motion, he failed to exhaust all available remedies before

resorting to habeas corpus.    Accordingly, we deem his claim waived and,

therefore, affirm the trial court’s order dismissing his petition on that basis.



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“To the extent our legal reasoning differs from the trial court’s, we note that

as an appellate court, we may affirm on any legal basis supported by the

certified record.” Commonwealth v. Williams, 125 A.3d 425, 433 n.8 (Pa.

Super. 2015).

      Thus, in sum, because Appellant’s claim does not challenge the

imposition of a sentence in excess of the lawful maximum, it does not fall

under the purview of Section 9543(a)(2)(vii). And, to the extent that Section

9543(a)(2)(vii) encompasses all illegal-sentencing issues, Appellant’s claim

does not implicate any category of illegal sentences previously recognized by

Pennsylvania Courts. Moreover, because Appellant’s constitutional challenge

to Section 1102(b) does not implicate his guilt or innocence for the underlying

offense, his void-for-vagueness claim cannot arise under the typical provision

used to address constitutional errors, Section 9543(a)(2)(i). Nevertheless,

because Appellant could have challenged the constitutionality of Section

1102(b) at sentencing or in a post-sentence motion, he has failed to exhaust

all available remedies before seeking relief under habeas corpus.        Thus,

Appellant effectively waived the issue raised in the Habeas petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/18




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