J-S46026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KARIM ALI SHAMDIS-DEEN

                            Appellant                No. 3390 EDA 2015


                 Appeal from the PCRA Order October 13, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0002717-2006


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                                 FILED JULY 06, 2016

        Karim Ali Shamdis-Deen1 appeals pro se from the order entered

October 13, 2015, in the Court of Common Pleas of Delaware County, that

dismissed his pro se petition for writ of habeas corpus, which the court

construed as a third petition filed pursuant to the Pennsylvania Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541–9546.        Shamdis-Deen

claims the PCRA court erred in (1) dismissing his petition for writ of habeas

corpus as an untimely PCRA petition, and (2) dismissing his petition

challenging the legality of his mandatory minimum sentence imposed


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 Shamdis-Deen’s surname also appears in the certified record as Shamsid-
Deen and Shamsid-Dean.
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pursuant to 42 Pa.C.S. § 9714 (“Second and subsequent offenses”).2              For

the following reasons, we affirm.



____________________________________________


2
    Section 9714 provides, in relevant part, as follows:

        (a) Mandatory sentence.--

        (1) Any person who is convicted in any court of this
        Commonwealth of a crime of violence shall, if at the time of the
        commission of the current offense the person had previously
        been convicted of a crime of violence, be sentenced to a
        minimum sentence of at least ten years of total confinement,
        notwithstanding any other provision of this title or other statute
        to the contrary.

                                          ***
        (d) Proof at sentencing.-- Provisions of this section shall not be
        an element of the crime and notice thereof to the defendant
        shall not be required prior to conviction, but reasonable notice of
        the Commonwealth's intention to proceed under this section
        shall be provided after conviction and before sentencing. The
        applicability of this section shall be determined at sentencing.
        The sentencing court, prior to imposing sentence on an offender
        under subsection (a), shall have a complete record of the
        previous convictions of the offender, copies of which shall be
        furnished to the offender. If the offender or the attorney for the
        Commonwealth contests the accuracy of the record, the court
        shall schedule a hearing and direct the offender and the attorney
        for the Commonwealth to submit            evidence regarding the
        previous convictions of the offender. The court shall then
        determine, by a preponderance of the evidence, the previous
        convictions of the offender and, if this section is applicable, shall
        impose sentence in accordance with this section. . . .


42 Pa.C.S. § 9714(a)(1), (d).           See also 42 Pa.C.S. § 9714(g) (defining
“crime of violence”).




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        The facts underlying this appeal are fully recounted in this Court’s

decision that was filed in connection with Shamdis-Deen’s direct appeal.

See Commonwealth v. Shamdis-Deen, 964 A.2d 445 (Pa. Super. 2008)

(unpublished memorandum), appeal denied, 966 A.2d 571 (Pa. 2009).

Furthermore, the PCRA court has fully detailed the procedural history of this

case. See PCRA Opinion, 2/23/2016, at 1–7. Therefore, we only state that

on November 9, 2007, Shamdis-Deen was convicted by a jury of robbery.3

On December 10, 2007, pursuant to 42 Pa.C.S. § 9714 (“Sentences for

Second and Subsequent Offenses”), the trial court sentenced Shamdis-Deen

to a mandatory term of 10 to 20 years’ incarceration, to be served

consecutively to another sentence Shamdis-Deen was then serving.                  On

direct appeal, this Court affirmed the judgment of sentence, and the

Pennsylvania Supreme Court denied allowance of appeal.               See Shamdis-

Deen, supra. Shamdis-Deen then filed two unsuccessful PCRA petitions.

        On September 23, 2015, Shamdis-Deen filed the pro se petition for

writ of habeas corpus that underlies this appeal. In his petition, Shamdis-

Deen      asserted     the     Pennsylvania      Supreme   Court’s     decision   in

Commonwealth v. Butler, 760 A.2d 384 (Pa. 2000) “should have the

effect of voiding the entirety of [42 Pa.C.S.] § 9714.”          Shamdis-Deen’s

Petition, 9/23/2015, at ¶¶6–18. He also asserted that his sentence is illegal


____________________________________________


3
    See 18 Pa.C.S. § 3701(a)(1)(ii).



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because the second strike statute under which he was sentenced, 42 Pa.C.S.

§ 9714, constitutes unconstitutional ex post facto legislation. In this regard,

Shamdid-Deen argued Section 9714 factored in prior convictions, like his,

that occurred before the legislation was passed. See id. at 19–31. Finally,

Shamdis-Deen asserted Section 9714 was unconstitutional because it did not

provide for a factual determination of the prior conviction and the facts of

the prior conviction. Id. at 32–36.

      The PCRA court treated Shamdis-Deen’s petition as a petition pursuant

to the PCRA and, on September 30, 2015, issued Pa.R.Crim.P. 907 notice of

intent to dismiss, finding, inter alia, that the petition was untimely.    See

Notice of Intent to Dismiss Without a Hearing, 9/30/2015, at 3–5 n.3

(explaining petition was untimely and therefore the PCRA court lacked

necessary jurisdiction). On October 6, 2015, Shamdis-Deen filed a response

to the Rule 907 notice, and on October 13, 2015, the PCRA court dismissed

the petition. Shamdis-Deen then filed this timely appeal, and complied with

the court’s order to file a Pa.R.A.P. 1925(b) statement.     On February 23,

2016, the Honorable Kevin Kelly filed a 30-page opinion in support of his

dismissal order. The PCRA judge explained in detail his determinations that

the petition was untimely and the PCRA court lacked jurisdiction and,

further, addressed the merits of Shamdis-Deen’s claims.

      Our standard of review of the denial of a PCRA petition is well settled:

         The standard of review for an order denying post-
         conviction relief is limited to whether the record supports
         the PCRA court’s determination, and whether that

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         decision is free of legal error. The PCRA court’s findings
         will not be disturbed unless there is no support for the
         findings in the certified record.

Commonwealth v. Walters, ___ A.3d ___, ___ [2016 PA Super 42] (Pa.

Super. 2016) (citation omitted).

      We first address Shamdis-Deen’s claim that the PCRA court erred in

treating his writ of habeas corpus as a PCRA petition. Shamdis-Deen argues

that if he is precluded by the time constraints of the PCRA from raising his

claim, he is entitled to habeas corpus relief. See Shamdis-Deen’s Answer to

Court’s Notice of Intention to Dismiss, 10/6/2015, at 2, ¶¶8–9; Shamdis-

Deen’s Brief, at 11–13.    We disagree.     Even though titled a petition for

habeas corpus, the petition is, in fact, a PCRA petition, alleging illegality of

sentence, which was not filed within the one-year time limitation contained

within the PCRA.

      The PCRA clearly states it is “the sole means of obtaining collateral

relief and encompasses all other common law and statutory remedies …,

including habeas corpus and coram nobis.” 42 Pa.C.S. § 9542. This Court

has explained:

      It is well-settled that the PCRA is intended to be the sole means
      of achieving post-conviction relief. 42 Pa.C.S. § 9542;
      Commonwealth v. Haun, 613 Pa. 97, 32 A.3d 697 (Pa. 2011).
      Unless the PCRA could not provide for a potential remedy, the
      PCRA statute subsumes the writ of habeas corpus. Fahy, supra
      at 223-224; Commonwealth v. Chester, 557 Pa. 358, 733
      A.2d 1242 (Pa. 1999). Issues that are cognizable under the
      PCRA must be raised in a timely PCRA petition and cannot be
      raised in a habeas corpus petition. See Commonwealth v.
      Peterkin, 554 Pa. 547, 722 A.2d 638 (Pa. 1998); see also

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       Commonwealth v. Deaner, 2001 PA Super 191, 779 A.2d 578
       (Pa.Super. 2001) (a collateral petition that raises an issue that
       the PCRA statute could remedy is to be considered a PCRA
       petition). Phrased differently, a defendant cannot escape
       the PCRA time-bar by titling his petition or motion as a
       writ of habeas corpus.

Commonwealth v. Taylor, 65 A.3d 462, 465–466 (Pa. Super. 2013)

(emphasis added). See also Commonwealth v. Pagan, 864 A.2d 1231,

1233 (Pa. Super. 2004) (“if the underlying substantive claim is one that

could potentially be remedied under the PCRA, that claim is exclusive to

the PCRA”) (emphasis added), cert. denied, 546 U.S. 909 (2005).            Here,

Shamdis-Deen challenges the legality of his sentence. The PCRA specifically

“provides for an action by which … persons serving illegal sentences may

obtain collateral relief.” 42 Pa.C.S. § 9542. Thus, contrary to Shamdis-

Deen’s contention, his claim presents a cognizable PCRA claim, and he

cannot seek relief outside the PCRA.

       Turning to the requirements of the PCRA, we note initially that

Shamdis-Deen’s claim that his sentence is a legal “nullity”4 does not allow

him to evade the PCRA’s timeliness requirements. In Commonwealth v.

Fahy, 737 A.2d 214 (Pa. 1999), the Pennsylvania Supreme Court rejected

this contention. The Fahy Court stated, “[a]lthough legality of sentence is

always subject to review within the PCRA, claims must still first satisfy the
____________________________________________


4
  Shamdis-Deen’s Petition, 9/23/2015, at ¶¶42–47. See also Shamdis-
Deen’s Answer to the Court’s Notice of Intention to Dismiss, 10/6/2015, at
2, ¶¶3–7, 10.



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PCRA’s time limits or one of the exceptions thereto.” Fahy, supra at 223

(citation omitted).      Consequently, Shamdis-Deen cannot evade the PCRA

timeliness requirements based on a claim of an illegal sentence.

        Under the PCRA, any PCRA 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). Here, on October 10, 2008, this Court

affirmed Shamdis-Deen’s judgment of sentence, and on February 26, 2009,

the Pennsylvania Supreme Court denied allowance of appeal.              The PCRA

court correctly determined that Shamdis-Deen’s judgment of sentence

became final on May 27, 2009, when the 90-day period for filing a petition

for writ of certiorari to the United States Supreme Court expired.5 See 42

Pa.C.S. § 9545(b)(3). See also U.S.Sup.Ct.R. 13. Therefore, the time for

Shamdis-Deen to file for collateral relief expired on May 27, 2010. See 42

Pa.C.S. § 9545(b)(1), supra.              Accordingly, the present petition, filed

September 23, 2015, is patently untimely.

        Nevertheless, we may consider an untimely PCRA petition if the

petitioner pleads and proves one of the PCRA’s three exceptions:

(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;

____________________________________________


5
    See PCRA Court Opinion, 2/23/2016, at 13.



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(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-iii). Furthermore, any petition involving 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).

        Examining Shamdis-Deen’s petition in light of the statutory exceptions

stated above, our review confirms Judge Kelly’s determination that Shamdis-

Deen “has failed to plead facts, that if proven, satisfy the material

exceptions to the Post Conviction Relief Act’s otherwise one (1) year filing

requisite. 42 Pa.C.S. § 9545(b)(1)(i)-(iii).” PCRA Court Opinion, 2/23/2016,

at 14. Therefore, we conclude the PCRA court properly dismissed Shamdis-

Deen’s petition.6     Accordingly, we affirm.


____________________________________________


6
  The PCRA court, in addition to its jurisdictional analysis, extensively
addressed the Shamdis-Deen’s substantive claims “assuming arguendo this
court has the jurisdiction requisite to adjudicating Defendant Shamdis-
Deen’s collateral petition.” PCRA Court Opinion, 2/23/2016, at 15. See id.
at 15–30.     However, as we have concluded the PCRA court properly
determined as a threshold issue that the petition was untimely and no
exception was alleged, the PCRA court lacked jurisdiction to consider the
merits of Shamdis-Deen’s claims, and this Court likewise lacks jurisdiction to
review those claims.

(Footnote Continued Next Page)


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      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2016




                       _______________________
(Footnote Continued)

      Nevertheless, with regard to Shamdis-Deen’s claim that the second
strike statute, 42 Pa.C.S. § 9714, is unconstitutional because it does not
provide for a jury determination of the facts of the prior conviction of a crime
of violence, we note that Shamdis-Deen had pleaded guilty in 1995 to
voluntary manslaughter, which is a “crime of violence” under Section
9714(g).     See 42 Pa.C.S. § 9714(g); N.T., 12/10/2007 (Sentencing
Hearing). We further note this Court has rejected the argument that a
sentence imposed pursuant to Section 9714 is illegal based upon Alleyne v.
United States, 133 S. Ct. 2151 (2013). See Commonwealth v. Reid, 117
A.3d 777, 785 (Pa. Super. 2015). See also Commonwealth v. Bragg,
133 A.3d 328, 332–333 (Pa. Super. 2016). The United States Supreme
Court held in Alleyne that “[a]ny fact that, by law, increases the penalty for
a crime is an ‘element’ that must be submitted to the jury and found beyond
a reasonable      doubt.” Alleyne, 133 S. Ct. at 2155. However, Alleyne
recognized a narrow exception for prior convictions. Id. at 2160 n.1. See
Bragg, supra; Reid, supra. Therefore, Shamdis-Deen’s argument would
fail.



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