J-S47003-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KENNY WATSON,                                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellant

                    v.

LAWRENCE MAHALLY, SUPERINTENDENT
OF SCI DALLAS, AND DISTRICT
ATTORNEY DANIEL A. BARRETT,

                          Appellees                 No. 1813 MDA 2015


              Appeal from the Order Entered September 1, 2015
              In the Court of Common Pleas of Bradford County
                     Civil Division at No(s): 2015 IR 0031


BEFORE: SHOGAN, LAZARUS, and JENKINS, JJ.

MEMORANDUM BY SHOGAN, J.:                     FILED SEPTEMBER 12, 2016

     Appellant, Kenny Watson, appeals from the order denying as untimely

his second petition for relief filed under the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm.

     Appellant was convicted by a Bradford County jury of criminal

conspiracy to commit aggravated assault, criminal conspiracy to commit

kidnapping, persons not to own or possess a firearm, tampering with or

fabricating physical evidence, unlawful restraint, aggravated assault, and

false imprisonment.      On October 17, 2002, Appellant was sentenced to an

aggregate term of imprisonment of ten years, one month to twenty-one

years.
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       Preliminarily, we note that our disposition of this case does not compel

a detailed account of the factual history of Appellant’s crimes. However, this

Court, in affirming the judgment of sentence in Appellant’s direct appeal,

stated in pertinent part as follows:

              Generally, the evidence at trial, consisting of eyewitness
          testimony, established that in the afternoon of April 17,
          2001, an argument developed between Jason Ryans and
          the Watson brothers at Appellant’s home in Wilkes-Barre,
          Pennsylvania.[1] The Watsons believed that Ryans had
          stolen a handgun and a safe containing marijuana and
          money. During the argument, Appellant punched Ryans.
          In an ensuing struggle, James Watson grabbed a knife and
          inflicted multiple wounds to Ryans’s hands and arms.
          Ryans was also punched and kicked repeatedly by the
          Watsons. The Watsons then bound the wrists of Ryans,
          either for the purpose of stopping his bleeding or to
          prevent his escape, or both. Ryans was then placed in a
          vehicle and transported to a rural area near the Village of
          Camptown in Bradford County. There, Ryans was taken
          from the vehicle and shot twice in the back of the head by
          James Watson. Ryans apparently died immediately.

             The evidence against James Watson and Appellant
          diverged with respect to their criminal culpability following
          the altercation in Wilkes-Barre. After Ryans was bound,
          the Watsons then informed others at the house that they
          would be taking Ryans to a hospital, but would seek a rural
          hospital. The evidence revealed that [James Watson] was
          in fact simply looking for a secluded place to murder
          Ryans, but the evidence also suggested that Appellant,
          among others, was duped into accompanying James
          Watson to Bradford County. The jury at least had a
          reasonable doubt as to Appellant’s complicity in any plan
          to kill Ryans, for it acquitted him of all charges of homicide
          and conspiracy to commit homicide. Appellant’s counsel
          admitted to the jury that his client was guilty of assault,
____________________________________________


1
    We note that Wilkes-Barre is in Luzerne County.



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        but denied his involvement in any action or plan intended
        to kill Ryans.

Commonwealth v. Watson, 860 A.2d 1137, 553 MDA 2003 (Pa. Super.

filed August 20, 2004) (unpublished memorandum at 2).             This Court

affirmed the judgment of sentence. Id. Appellant’s petition for allowance of

appeal was denied on January 20, 2005. Commonwealth v. Watson, 868

A.2d 1200, 882 MAL 2004 (Pa. filed January 20, 2005).

     Appellant filed a PCRA petition on June 9, 2005, challenging, inter alia,

Bradford County’s jurisdiction regarding criminal acts that occurred in

Luzerne County. The first PCRA court denied the petition on June 23, 2006,

and determined that Bradford County had jurisdiction because the criminal

conduct was from a single criminal episode. This Court affirmed the denial

of Appellant’s first PCRA petition, finding all of the issues waived due to

Appellant’s failure to comply with Pa.R.A.P. 1925.      Commonwealth v.

Watson, 953 A.2d 607, 1253 MDA 2006 (Pa. Super. filed March 7, 2008)

(unpublished memorandum).

     On May 21, 2015, Appellant, pro se, filed the instant petition for writ

of habeas corpus, which the Bradford County Court of Common Pleas treated

as an untimely petition pursuant to the PCRA.       The court dismissed the

petition on September 1, 2015, and Appellant filed a timely notice of appeal

on September 29, 2015. The common pleas court did not order Appellant to

file a statement pursuant to Pa.R.A.P. 1925.

     Appellant raises the following issues for our review:

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      1. Whether the lower [c]ourt abused it’s [sic] discretion when it
      dismissed the Petitioner’s Writ of Habeas Corpus Action when
      jurisdiction is lacking?

      2. Whether the Court of Common Pleas of Bradford County
      Pennsylvania lacked subject matter jurisdiction and personal
      jurisdiction in this case?

Appellant’s Brief at 3.

      When reviewing the propriety of an order denying PCRA relief, this

Court is limited to determining whether the evidence of record supports the

conclusions of the PCRA court and whether the ruling is free of legal error.

Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa. 2016). The PCRA

court’s findings will not be disturbed unless there is no support for them in

the certified record. Commonwealth v. Lippert, 85 A.3d 1095, 1100 (Pa.

Super. 2014).    “The PCRA court may dismiss a petition without a hearing

when the court is satisfied ‘that there are no genuine issues concerning any

material fact, the defendant is not entitled to post-conviction collateral relief,

and no legitimate purpose would be served by any further proceedings.’

Pa.R.Crim.P. 909(B)(2).”     Commonwealth v. Johnson, 139 A.3d 1257,

1273 (Pa. 2016).

      Initially, we conclude that the PCRA court accurately considered

Appellant’s petition to be a PCRA petition. The scope of the PCRA is defined

as follows:

      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

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      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 and coram nobis. This subchapter is not
      intended to limit the availability of remedies in the trial court or
      on direct appeal from the judgment of sentence, to provide a
      means for raising issues waived in prior proceedings or to
      provide relief from collateral consequences of a criminal
      conviction.

42 Pa.C.S. § 9542 (emphasis added).

      Our Supreme Court has construed the above language “as manifesting

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

appellant may collaterally challenge his conviction.”     Commonwealth v.

Descardes, 136 A.3d 493, 498 (Pa. 2016).          Where a defendant’s claims

“are cognizable under the PCRA, the common law and statutory remedies

now subsumed by the PCRA are not separately available to the defendant.”

Commonwealth v. Hall, 771 A.2d 1232, 1235 (Pa. 2001) (citations

omitted).   Thus, it is well settled that any collateral petition raising issues

with respect to remedies offered under the PCRA will be considered to be a

PCRA petition. Commonwealth v. Deaner, 779 A.2d 578, 580 (Pa. Super.

2001).

      The question then is whether the particular issue raised by Appellant is

a claim that was available to him under the PCRA. The PCRA provides as

follows:




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                         § 9543. Eligibility for relief

      (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:

                                      * * *

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

                                    * * *

            (viii) A proceeding in a tribunal without jurisdiction.

42 Pa.C.S. § 9543(a)(2)(viii).

      In the instant case, Appellant challenges the jurisdiction of the

Bradford County Court of Common Pleas to preside over the charges that

originated in Luzerne County and culminated with a homicide in Bradford

County. Upon review of the relevant law and Appellant’s petition, we agree

that the PCRA court properly considered Appellant’s petition for habeas

corpus to be a PCRA petition.

      As noted, the PCRA court dismissed the petition as untimely. A PCRA

petition must be filed within one year of the date that the judgment of

sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time requirement is

mandatory and jurisdictional in nature, and the court may not ignore it in

order to reach the merits of the petition. Commonwealth v. Hernandez,

79 A.3d 649, 651 (Pa. Super. 2013).        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,

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

§ 9545(b)(3).

       In the case sub judice, Appellant was sentenced on October 17, 2002.

This Court affirmed the judgment of sentence on August 20, 2004, and our

Supreme Court denied Appellant’s petition for allowance of appeal on

January 20, 2005. Appellant did not seek a writ of certiorari in the United

States Supreme Court. Therefore, Appellant’s judgment of sentence became

final on April 20, 2005, when the ninety-day period for Appellant to file a

petition for a writ of certiorari expired.       42 Pa.C.S. § 9545(b)(3); U.S.

Sup.Ct.R. 13 (instructing that petition for writ of certiorari is deemed timely

when it is filed within ninety days after denial of petition for allowance of

appeal). Thus, the instant PCRA petition is patently untimely.

       An untimely petition may be received when the petition alleges and

the petitioner proves, that any of the three limited exceptions to the time for

filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii), is

met.2 “However, the PCRA limits the reach of the exceptions by providing




____________________________________________


2
    The exceptions to the timeliness requirement are:

       (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;

(Footnote Continued Next Page)


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that a petition invoking any of the exceptions must be filed within 60 days of

the date the claim first could have been presented.”          Commonwealth v.

Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citing Commonwealth v.

Leggett, 16 A.3d 1144, 1146 (Pa. Super. 2011), and 42 Pa.C.S.

§ 9545(b)(2)).

      Our review of the record reveals that Appellant failed to allege or

prove to the PCRA court that any of the exceptions apply. Thus, the court of

common pleas was without jurisdiction to grant relief in this matter, and it

properly dismissed Appellant’s PCRA petition as untimely.

      We likewise conclude that Appellant has failed to assert on appeal to

this Court that any of the exceptions apply or that the petition was

presented within the applicable sixty-day time frame. Moreover, our review

of Appellant’s contention that the Bradford County Court lacked jurisdiction

over his criminal acts in Luzerne County does not fall within any of the

exceptions to the timeliness rule.          Thus, because Appellant’s second PCRA
                       _______________________
(Footnote Continued)

      (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), (ii), and (iii).




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petition was untimely and no exceptions apply, the PCRA court lacked

jurisdiction   to   address   Appellant’s   claim   and   grant   relief.   See

Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding

that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we

lack the authority to address the merits of any substantive claims raised in

the PCRA petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267

(Pa. 2007) (“[J]urisdictional time limits go to a court’s right or competency

to adjudicate a controversy.”).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/2016




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