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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                    v.

FRANCISCO PEREZ

                         Appellant                 No. 130 MDA 2016


              Appeal from the PCRA Order December 31, 2015
               In the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0003313-2000



BEFORE: BOWES, PANELLA AND JENKINS, JJ.

MEMORANDUM BY BOWES, J.:                        FILED OCTOBER 19, 2016

      Francisco Perez appeals from the order entered December 31, 2015,

dismissing his petition for writ of habeas corpus as an untimely serial PCRA

petition. We affirm.

      The trial court summarized the relevant underlying factual and

procedural history as follows:

            In December 1999, Appellant drove to Atlantic City, New
      Jersey, in an attempt to purchase $ 5,000 worth of marijuana
      from Herbert Deibert. Appellant gave Deibert the money and
      Deibert drove off to retrieve the marijuana. Diebert never
      returned. Appellant never received the marijuana [and] the
      money was never returned to Appellant. On May 7, 2000,
      Deibert and a man named Ryan Miller were in a Berks County
      apartment preparing to smoke cocaine.      Appellant had an
      apartment across the street.    Witnesses observed Appellant
      running with a handgun into the building occupied by Deibert
      and Miller. Appellant entered the apartment and fired multiple
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      shots at Deibert and Miller. Appellant shot Miller in the calf and
      back and shot Deibert in the right leg and thigh. Appellant fled
      the area, but was apprehended later near a restaurant in
      Philadelphia.

             Following a jury trial held March 13, 2001, through March
      15, 2001, Appellant was found guilty [of numerous charges
      under two dockets, including attempted first degree murder and
      various weapons crimes].         Appellant was sentenced to an
      aggregate term of thirty-four and a half (34 ½) to seventy-three
      (73) years of incarceration. On April 16, 2001, Appellant filed a
      Notice of Appeal to the Superior Court. The judgments of
      sentence were affirmed in part and reversed in part on October
      3, 2002.       On December 2, 2003, the Supreme Court of
      Pennsylvania reversed the decision of the Superior Court [and
      affirmed the judgment of sentence]. Thereafter, Appellant filed
      a series of PCRA petitions, beginning on June 17, 2004. This
      petition, his seventh, was filed on September 8, 2015.

PCRA Court Opinion, 3/22/16, at 1-2. Appellant styled the instant petition

as a writ of habeas corpus.     He asserts, inter alia, the ineffectiveness of

counsel appointed to litigate his first PCRA petition. The court below treated

Appellant’s petition as a PCRA petition and issued a Pa.R.Crim.P. 907 notice

of its intent to dismiss the petition without a hearing.        The trial court

thereafter dismissed Appellant’s petition as untimely.      This timely appeal

followed. Appellant presents two issues for our review.

      1. Did the lower court err in treating Appellant’s Petition for Writ
         of Habeas Corpus Ad Subjiciendum as a petition pursuant to
         the Post-Conviction Collateral Relief Act?

      2. Was counsel for Appellant during initial PCRA proceedings
         ineffective for failing to raise an Apprendi challenge to the
         illegally imposed sentence of twenty (20) to forty (40) years
         as a result of Appellant’s conviction for attempted first degree
         murder?



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Appellant’s brief at 3.

      Initially, we find that the PCRA court properly treated Appellant’s

habeas motion as a PCRA petition.           Under established Pennsylvania

precedent, “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); Commonwealth v. Descardes, 136 A.3d 493, 498 (Pa. 2016)

(“This Court has construed [42 Pa.C.S. § 9542] as manifesting the

legislature’s intent that the PCRA be the sole means by which an appellant

may collaterally challenge his conviction.”). Thus, “[u]nless the PCRA could

not provide for a potential remedy, the PCRA statute subsumes the writ of

habeas corpus.”     Taylor, supra at 465-466 (citing Commonwealth v.

Fahy, 737 A.2d 214 (Pa. 1999); Commonwealth v. Chester, 733 A.2d

1242 (Pa. 1999)).     Furthermore, “[i]ssues that are cognizable under the

PCRA must be raised in a timely PCRA petition and cannot be raised in a

habeas corpus petition. Taylor, supra. at 466; Descardes, supra at 501

(“where a claim is cognizable under the PCRA, the PCRA is the only method

of obtaining collateral review.”).   Finally, “a defendant cannot escape the

PCRA time-bar by titling his petition or motion as a writ of habeas corpus.”

Id.

      A claim is cognizable under the PCRA if it challenges the petitioner’s

conviction, sentence, or the effectiveness of counsel during the plea process,

trial, appeal or PCRA review. 42 Pa.C.S. § 9543. The Court announced in

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Commonwealth ex rel. Dadario v. Goldberg, 773 A.2d 126, 129-130

(Pa. 2001), that § 9543(a)(2)(ii) of the PCRA permits “all constitutionally-

cognizable claims of ineffective assistance of counsel to be raised in a PCRA

petition.”

      Appellant contends that the trial court erred in treating his habeas

corpus petition as a PCRA petition.              He asserts that, since there is no

constitutional right to counsel for a PCRA proceeding, his claim of ineffective

assistance was not premised upon a violation of the Sixth Amendment of the

United States Constitution, or Article I, Section 9 of the Pennsylvania

Constitution. Appellant concludes, pursuant to Dadario, supra, that since

his claim does not raise constitutional grounds for effective assistance of

counsel, it is not cognizable under the PCRA. We disagree.

      The due process clause of the Fourteenth Amendment guarantees

state criminal defendants certain procedural safeguards.                 Once a post-

conviction procedure is provided by a state, that procedure is required to

meet basic and fundamental due process requirements. Commonwealth v.

Burkett, 5 A.3d 1260, 1276 (Pa.Super. 2010). Although there is no

constitutional mandate that a state provide counsel for an initial PCRA

petition,    the    Pennsylvania   rules    of    criminal   procedure    require   the

appointment of such counsel for a first PCRA petition and for ensuing PCRA

petitions    when    justice   requires.     See     Pa.R.Crim.P.   904(E).     Under

Pa.R.Crim.P. 904(F)(2) and Burkett, supra, when counsel is appointed in a

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PCRA proceeding, counsel must be effective pursuant to the constitutional

guarantees enumerated in the due process clause. Thus, Appellant’s claim is

cognizable under the PCRA. Dadario, supra.

      Having found that Appellant’s petition was cognizable under the PCRA,

we turn to determining whether it is properly before us. We observe that an

untimely PCRA petition renders Pennsylvania courts without jurisdiction to

afford relief.   Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super.

2013).   “The question of whether a petition is timely raises a question of

law. Where the petitioner raises questions of law, our standard of review is

de novo and our scope of review is plenary.” Id. (citations omitted).

      The PCRA specifies that all PCRA petitions must be filed within one

year of the date on which the judgment of sentence became final, unless

one of the statutory exceptions set forth in 42 Pa.C.S. § 9545(b)(1) applies.

The petitioner bears the burden to plead and prove that a statutory

exception applies. If the petition is found to be untimely, and the petitioner

has not pled and proven an exception, the petition must be dismissed

without a hearing because Pennsylvania courts are without jurisdiction to

consider the merits of the petition. Commonwealth v. Jackson, 30 A.3d

516, 519 (Pa.Super. 2011).

      Title 42 Pa.C.S. § 9545(b)(1) and (2) provide:

      (b) Time for filing petition. –




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            (1)   Any petition under this subchapter, including a
                  second or subsequent petition, shall be filed within
                  one year of the date the judgment of sentence
                  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.

            (2) Any petition invoking an exception provided in
            paragraph (1) shall be filed within 60 days of the date the
            claim could have been presented.

42 Pa.C.S. § 9545(b)(1) and (2).

      We previously found that Appellant’s judgment of sentence became

final on March 2, 2004, following the expiration of Appellant’s opportunity to

petition for review with the United States Supreme Court. Commonwealth

v. Perez, 974 A.2d 1189 (Pa.Super. 2009) (unpublished memorandum at

5).   Thus, Appellant had until March 2, 2005 to file a timely PCRA petition,

and the instant PCRA petition, filed on September 8, 2015, is facially



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untimely. Appellant has not invoked any of the statutory exceptions to the

time-bar. Accordingly, the PCRA court properly concluded that the petition

was untimely. Jackson, supra.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/19/2016




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