J-S54040-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                           Appellee

                      v.

KENDALE WISE

                           Appellant                 No. 182 MDA 2014


              Appeal from the Order Entered December 27, 2013
               In the Court of Common Pleas of Dauphin County
               Criminal Division at No: CP-22-CR-0001114-2001


BEFORE: LAZARUS, MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                     FILED NOVEMBER 05, 2014

      Appellant, Kendale Wise, appeals from the December 27, 2013 order

dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”),

42 Pa.C.S.A. §§ 9541-46. Also pending is an application for habeas corpus

relief filed with this court. We affirm the PCRA court’s order and deny the

application for relief.

      Appellant is serving a 15 to 30 year sentence for attempted homicide

following his conviction at the conclusion of a September 12, 2001 jury trial.

This Court affirmed the judgment of sentence on March 26, 2003. Appellant

filed a timely first PCRA petition on February 6, 2004.      The PCRA court

dismissed that petition on October 27, 2004 and this Court affirmed on

January 23, 2006.
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          Appellant sought a second round of collateral review with a series of

pro se filings beginning in November of 2010. The PCRA court entered its

final order dismissing Appellant’s second PCRA petition on February 10,

2011.       This Court affirmed on February 15, 2012.       While the appeal of

Appellant’s second PCRA petition was pending, he commenced another

series of pro se filings.          On February 1, 2012, the PCRA court filed a

“clarification order” in which it explained to Appellant that his prior PCRA

petitions had been dismissed and that he had no basis for seeking collateral

relief.     Appellant appealed the February 1, 2012 order, and this Court

dismissed that appeal on April 2, 2012.         Appellant filed yet another PCRA

petition on May 21, 2012, which the PCRA court dismissed on June 22, 2012.

This Court quashed Appellant’s appeal from the June 22, 2012 order on

December 13, 2012.

          The   instant   action   commenced    on   December   12,   2013,   with

Appellant’s purported habeas corpus petition. Appellant argues he is entitled

to habeas corpus relief because he was deprived of his right to counsel

during trial. He argues that a habeas corpus petition is his only means of

obtaining relief, finally conceding that he cannot obtain PCRA relief because

of the PCRA’s jurisdictional timeliness requirements.




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       The substance of Appellant’s claim is that his trial counsel did not file

an entry of appearance.1 Thus, Appellant claims he was deprived of his right

to counsel, even though counsel did represent him throughout the trial and

direct appeal process.        Appellant raised the same claim in his untimely

November 2010 PCRA petition.

       We conclude the PCRA court properly treated Appellant’s claim as an

untimely PCRA petition and dismissed it. The PCRA subsumes all forms of

collateral relief, including habeas corpus, so long as a remedy is available

under the PCRA.        Commonwealth v. West, 938 A.2d 1034, 1044 (Pa.

2007). Appellant’s assertion that he was deprived of his constitutional right

to counsel is cognizable under the PCRA.         42 Pa.C.S.A. § 9543(a)(2)(i)

(providing that a petitioner is eligible for relief where the conviction resulted

from 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”). To the

extent Appellant asserts his counsel was ineffective for failing to file an entry


____________________________________________


1
   Pa.R.Crim.P. 120(A)(1) requires retained counsel to file an entry of
appearance with the clerk of courts promptly after retention. Pa.R.Crim.P.
120(A)(1).   Rule 120(A)(2), however, provides that where counsel is
appointed, the filing of the appointment constitutes counsel’s entry of
appearance. Pa.R.Crim.P. 120(A)(2).      The docket does not reflect an
appointment or an entry of appearance by privately retained counsel.



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of appearance, that claim also is cognizable under the PCRA.            See 42

Pa.C.S.A. § 9543(a)(2)(ii).

      Since Appellant’s purported habeas corpus petition is actually a PCRA

petition, it must comply with the PCRA’s timeliness requirements:

      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.A.   § 9545(b).      Section   9545’s   timeliness   provisions   are

jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).

      Appellant’s judgment of sentence became final in April of 2003, as he

did not seek Supreme Court review of this Court’s March 26, 2003

memorandum affirming his judgment of sentence.           Appellant’s petition is

facially untimely, and he does not assert the applicability of any timeliness

exception.   In fact, he concedes they do not.       The PCRA court properly


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treated Appellant’s habeas corpus petition a PCRA petition and dismissed for

lack of jurisdiction.2

       Order affirmed. Application denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/5/2014




____________________________________________


2
  Appellant also filed a purported application for habeas corpus relief in this
Court on August 7, 2014. We deny that application for the reasons stated in
the main text.



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