J-S32018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    RICKY J. FRITCHMAN                         :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL D. OVERMYER                        :   No. 354 EDA 2019

             Appeal from the Judgment Entered January 11, 2019
     In the Court of Common Pleas of Northampton County Civil Division at
                         No(s): C-48-CV-2016-8234


BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.

MEMORANDUM BY NICHOLS, J.:                         FILED SEPTEMBER 09, 2019

        Appellant Ricky J. Fritchman appeals pro se from the order denying his

petition for writ of habeas corpus. Appellant argues the trial court erred in

finding only one of his claims cognizable under the Post Conviction Relief Act1

(PCRA), and that his remaining claims were waived. We affirm.

        The trial court summarized the procedural history of this case as follows:

        On July 20, 1988, a jury found [Appellant] guilty of second degree
        murder. On August 3, 1988, [Appellant] was sentenced to a
        mandatory term of life imprisonment by the Honorable Robert A.
        Freedberg. [Appellant] filed post-sentence motions, which were
        denied by Judge Freedberg on April 11, 1990. On May 3, 1990,
        [Appellant] appealed his sentence to the Pennsylvania Superior
        Court, and the Court affirmed the judgment of sentence on May
        31, 1991.       The Supreme Court of Pennsylvania denied
        [Appellant’s] petition for allowance of appeal on March 19, 1992.

        Since then, [Appellant] has filed several petitions for post-
        conviction collateral relief [under the PCRA]. [Appellant’s] fourth
____________________________________________


1   42 Pa.C.S. §§ 9541-9546.
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      and most recent PCRA petition was dismissed by the Honorable
      Emil A. Giordano on January 4, 2013, and [Appellant] did not file
      an appeal . . . .


Trial Ct. Order, 1/11/19, at 1-2.

      On September 20, 2016, the trial court docketed Appellant’s pro se

praecipe for writ of habeas corpus and an “affidavit and declaration in support

of petition.” The affidavit included a 115-page habeas petition (the September

2016 petition). In the September 2016 petition, Appellant asserted (1) the

statutes under which he was prosecuted and imprisoned were illegal because

the 1968 Pennsylvania Constitution did not contain a savings clause; (2) the

1968 Pennsylvania Constitution itself was unconstitutional; (3) the court rules

and rules of criminal procedure violated the separation of powers doctrine; (4)

the trial court lacked subject matter jurisdiction; (5) his constitutional rights

to have a jury authorize the maximum sentence were violated; and (6) the

criminal complaint and information were defective.

      The docket shows the trial court and the Commonwealth took no action

between October and December of 2016. Appellant, however, filed various

pro se notices and motions seeking a default judgment based on the

September 2016 petition.

      In March 2017, Appellant then filed a pro se “notice of motion” seeking

leave to “cure the existing inappropriate filing,” that is, his September 20,

2016 praecipe and petition. The trial court took no action on the “notice of

motion.”




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       On August 13, 2018, Appellant moved to amend and refile his habeas

petition. On October 24, 2018, the trial court issued an order reassigning the

matter to the Honorable Anthony S. Beltrami for disposition.

       On October 30, 2018, the trial court docketed Appellant’s amended pro

se petition (the October 2018 petition).         In the October 2018 petition,

Appellant asserted that he was confined on an illegal sentence. See Oct. 2018

Pet., 10/30/18, at 2.          In support, Appellant claimed (1) the criminal

information and complaint were “so fatally defective that the charging

documents never charged him with what the jury found him guilty of”; (2) the

sentence for second-degree murder under 18 Pa.C.S. § 1102(b) was illegal

because 42 Pa.C.S. § 9721(a) did not authorize the imposition of a mandatory

sentence of imprisonment; (3) his conviction for second-degree murder was

improper because he was not convicted of a predicate felony; and (4) his life

sentence was not authorized because it was based on a defective verdict. Id.

at 2-3, 7-8. Additionally, Appellant argued his claims were properly raised in

a habeas petition because they were not cognizable under the PCRA. Id. at

3.

       On January 11, 2019, the trial court denied Appellant’s petition.2    The

trial court initially noted Appellant’s claim that the criminal complaint and

____________________________________________


2 The trial court filed Appellant’s habeas petition under a civil docket, and the
record for Appellant’s criminal case was not included in the certified record
transmitted in this appeal. We emphasize that Appellant bore the burden of
ensuring the certified record contained all materials necessary for appellate



                                           -3-
J-S32018-19



information were defective was cognizable under the PCRA.3            See Order,

1/11/19, at 1 n.1. The trial court concluded Appellant’s remaining claims did

not fall under the PCRA, noting

       [Appellant] argues that the sentence he received is unlawful
       because it did not include a minimum term of imprisonment.
       Though this issue appears to pertain to the legality of [Appellant’s]
       sentence, it is not cognizable under the PCRA and may be disposed
       of as a petition for a writ of habeas corpus. See Commonwealth
       v. Rouse, 191 A.3d 1, 5 (Pa. Super. 2018) (holding challenges to
       “the minimum sentence imposed” or arguments that “no minimum
       sentence was imposed” are not cognizable claims under the
       PCRA); see also Commonwealth v. Lewis, 718 A.2d 1262,
       1265 (Pa. Super. 1998) (holding argument that no mandatory
       minimum sentence was imposed is not cognizable under the
       PCRA). [Appellant] also argues that the Commonwealth failed to
       meet its burden to prove beyond a reasonable doubt that a felony
       occurred during the commission of the murder. This argument is
       a challenge to [Appellant’s] verdict, and it does not challenge the
       legality of the sentence. Thus, the court is not required to treat it
       as a PCRA issue. See Joseph v. Glunt, 96 A.3d 365, 368-69 (Pa.
       Super. 2014) (holding issues that do not pertain to the legality of
       a sentence may be treated as petitions for a writ of habeas
       corpus).


Order, 1/11/19, at 2-3. Nonetheless, the trial court concluded that Appellant

waived his remaining claims “because he did not raise them after the jury

delivered its verdict, at his sentencing hearing, or in any of his post-sentence


____________________________________________


review. See Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super.
2008). Nevertheless, the absence of the full criminal record does not impede
meaningful consideration in this appeal.

3 The trial court transferred Appellant’s PCRA claim to Appellant’s criminal
docket for consideration as a fifth PCRA petition and issued a Pa.R.Crim.P. 907
notice of its intent to dismiss that claim. Order, CR-246-1988, 1/11/19. The
criminal docket reveals that Appellant subsequently withdrew the PCRA claim.

                                           -4-
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motions.” Id. at 3. The trial court added that “even if the issues had not

been waived, they are without merit.” Id.

     On January 24, 2019, the trial court docketed Appellant’s timely notice

of appeal.    Appellant’s filed a timely court-ordered Pa.R.A.P. 1925(b)

statement raising the following errors complained of on appeal:

     1.) Was the [trial court] prejudicial to Appellant when it ordered a
     summary dismissal because the Respondent was properly served,
     [Appellant] complied with all necessary civil rules, and the
     Respondent clearly defaulted?

     2.) Was summary dismissal improper because [A]ppellant has
     already served an improperly imposed 30 year imprisonment?

     3.) The [trial court] should have allowed [Appellant] a chance to
     respond before dismissing the case.

     4.) In was clearly incorrect for the [trial court] to determine that
     the issues raised by Appellant in [the October 2018 petition] “have
     been waived . . . .” Because the issues Appellant were raising
     were clearly challenging the illegality of his sentence which is a
     non-waivable matter . . . .

     5.) In Appellant’s [October 2018 petition] it states, “despite all
     other allegations raised in the [September 2016 petition], the one
     of the utmost and initial importance is that [Appellant] is
     incarcerated, and has been incarcerated for over 30 years for the
     conviction of 2nd degree murder, without ever be[ing] charged
     with, or convicted of a felony in the same action at law. For the
     [trial court] to construe this as an argument that the
     Commonwealth failed to meet the admission of evidence . . . [i]s
     so misguided and so incorrect as to ‘shock’ one[’]s sense of
     justice.

     6.) On Wednesday August 3, 1988, Appellant was sentenced at
     246 of 1988 . . . in accordance with an amendment to the
     Pennsylvania Rules of Criminal Procedure at that time. [D]ue to
     the aforesaid, the sentence imposed was a mandatory sentence .
     . . It is clear in Pennsylvania that the “Sentencing Code” is
     separated from the “Crimes Code.” Pursuant to Pennsylvania’s


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J-S32018-19


       Sentencing Code (as it existed in 1988), it becomes clear that a
       Pennsylvania judge must impose one or more of the alternatives
       provided in [42 Pa.C.S. § 9721(a)(1)-(7)]. The only “exception”
       to this law that existed at that time was, “except where a
       mandatory minimum sentence is otherwise provided by law. . . .
       It is clear that Appellant’s sentence was not in accordance with
       this statute for it was not a “Mandatory minimum” sentence and
       it authorized “imprisonment,” which is not one of the alternatives
       authorized under [42 Pa.C.S. § 9721(a)(1)-(7)].

       7.) Appellant was charged by information of [18 Pa.C.S. § 2501—
       Criminal Homicide]. He was charged with no other charges. This
       charge was held over for trial. The jury was sent to deliberate on
       a charge of First Degree Murder and returned with a finding of
       “Not Guilty.” The [trial court] incorrectly sent the jury back to
       deliberate on the charge of ‘Second Degree Murder,’ and they
       returned with a finding of “Guilty.” The issue with this is, in
       Pennsylvania[,] the judge should have gone from first degree to
       third degree because there was no felony on the information. For
       the jury to return with a guilty finding on Second degree and
       Appellant to be held for over 30 years on a conviction of Second
       degree without a felony ever being char[g]ed is against any
       second degree statute even imposed on second degree in
       Pennsylvania. Appellant’s sentence is illegal and this writ must
       issue.


Appellant’s Rule 1925(b) Statement, 2/8/19, at 1-3 (citations omitted)

(emphasis in original).4 The trial court issued a Rule 1925(a) opinion.

       Appellant raises the following questions, which we have reordered as

follows:

       [1.] [W]as [A]ppellant illegally found guilty of 18 Pa.C.S. §
       2502(b) Murder of the Second Degree and sentenced under §
       1102(b) to Life Imprisonment because [A]ppellant was never
       charged with nor was there any criminal affidavit stating that

____________________________________________


4 As discussed below in footnote 5, we conclude Appellant’s Rule 1925(b)
statement narrows the particular claims on which we will focus our discussion
of the arguments raised in this appeal.

                                           -6-
J-S32018-19


      [A]ppellant was a principle [sic] or an accomplice in the
      perpetration of a felony?

      [2.] When [A]ppellant challenged that Second Degree Murder
      statutorily requires that one commits a homicide during the
      commission of a felony, further requiring one to be charged with
      a felony in the very least; did the [the trial court] incorrectly
      construe this as an argument that the Commonwealth failed to
      meet its burden to prove beyond a reasonable doubt that a felony
      occurred during the commission of the murder, so challenging
      [A]ppellant’s verdict, and not the legality of his sentence or the
      statutory authorization of the statute of which he is confined,
      thereby establishing such a [burden of proof] argument cannot be
      raised in a petition for a writ of habeas corpus?

      [3.] [W]as summary dismissal of [A]ppellant’s Petition for Writ of
      Habeas Corpus improper when [A]ppellant requested Default
      Judgment be ordered against [Appellant] for failing to answer
      because issue(s) raised in Habeas Corpus action were prima facie
      sufficient to establish to establish [the] existence, validity, and
      creditability of a non-frivolous question to the legality of
      [A]ppellant’s sentence and is not waived, despite [A]ppellant’s
      failure to raise it before the trial court?

Appellant’s Brief at 17.

      Appellant’s arguments on appeal are interrelated, and we summarize

them together.    First, Appellant asserts that the PCRA did not provide a

remedy for any of his claims. See id. at 18. Second, Appellant contends that

he did not waive his claims because he exhausted all available remedies,

including filing several PCRA petitions. Id. at 24. Relatedly, Appellant asserts

that his claims could not be waived because they are non-waivable challenges

to the legality of his sentence.    Id. at 24-25 (citing Commonwealth v.

Foster, 17 A.3d 332 (Pa. 2011)). Third, Appellant argues that the trial court

failed to address all of his claims and erred in summarily dismissing his petition

without further proceedings. Id. at 23-24. The remainder of Appellant’s brief

                                      -7-
J-S32018-19



discusses the merits of his claims, in that he was improperly charged and

convicted of second-degree murder and his sentence was not an authorized

sentencing alternative under 42 Pa.C.S. § 9721(a).

      When reviewing the denial of a claim for habeas relief,

      [o]ur standard of review of a trial court’s order denying a petition
      for writ of habeas corpus is limited to abuse of discretion. Thus,
      we may reverse the court’s order where the court has misapplied
      the law or exercised its discretion in a manner lacking reason. As
      in all matters on appeal, the appellant bears the burden of
      persuasion to demonstrate his entitlement to the relief he
      requests.


Rivera v. Pa. Dep’t of Corr., 837 A.2d 525, 528 (Pa. Super. 2003) (citations

omitted). This Court “may affirm on any legal basis supported by the certified

record.” Rouse, 191 A.3d at 7 (citation omitted).

      Initially, we must determine whether Appellant’s claims were cognizable

under the PCRA. This determination presents a question of law over which

our standard of review is de novo and our scope of review plenary.

Commonwealth v. Montgomery, 181 A.3d 359, 367 (Pa. Super. 2018) (en

banc), appeal denied, 190 A.3d 1134 (Pa. 2018).

      By way of background, it is well settled that

      [a] petition for a writ of habeas corpus “lies to correct void or
      illegal sentences or an illegal detention, or where the record shows
      a trial or sentence or plea so fundamentally unfair as to amount
      to a denial of due process or other constitutional rights, or where
      for other reasons the interests of justice imperatively required it.”
      Pursuant to [42 Pa.C.S. § 6502], “[a]ny judge . . . may issue the
      writ of habeas corpus to inquire into the cause of detention of any
      person or for any other lawful purpose.” The writ, if issued, directs
      the restraining authority to produce the person and state the “true
      cause of the detention.”

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Chadwick v. Caulfield, 834 A.2d 562, 566 (Pa. Super. 2003) (citations

omitted).

     The Pennsylvania General Assembly enacted the PCRA “to be the sole

means of achieving post-conviction relief.” Commonwealth v. Taylor, 65

A.3d 462, 465 (Pa. Super. 2013) (citation omitted). Section 9542 states that

the PCRA

     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 and coram nobis.


42 Pa.C.S. § 9542; accord 42 Pa.C.S. § 6503(b) (stating that “[w]here a

person is restrained by virtue of sentence after conviction for a criminal

offense, the writ of habeas corpus shall not be available if a remedy may be

had by post-conviction hearing proceedings authorized by law”).

     Section 9543 defines the eligibility requirements for the PCRA and

provides that a petitioner may seek relief under the PCRA for “a conviction or

sentence” that 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.

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                                    *     *      *

         (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)(2)(i)-(ii), (vii)-(viii).

      Additionally, a PCRA petitioner must demonstrate that “the allegation of

error has not been previously litigated or waived” and “the failure to litigate

the issue prior to or during trial, during unitary review or on direct appeal

could not have been the result of any rational, strategic or tactical decision by

counsel.” Id. § 9543(a)(3)-(4). “[A]n issue is waived if the petitioner could

have raised it but failed to do so before trial, at trial, during unitary review,

on appeal or in a prior state postconviction proceeding.”          Id. § 9544(b).

Generally, direct appeal claims that a petitioner failed to raise on appeal are

waived for purposes of the PCRA. See Commonwealth v. Brown, 872 A.2d

1139, 1145 (Pa. 2005).

      The Pennsylvania Supreme Court has held that

      the scope of the PCRA eligibility requirements should not be
      narrowly confined to its specifically enumerated areas of review.
      Such narrow construction would be inconsistent with the
      legislative intent to channel post-conviction claims into the PCRA’s
      framework, and would instead create a bifurcated system of post-
      conviction review where some post-conviction claims are
      cognizable under the PCRA while others are not.


Commonwealth v. Hackett, 956 A.2d 978, 986 (Pa. 2008).




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       Furthermore, “[t]he PCRA contains a jurisdictional time-bar, which is

subject to limited statutory exceptions.” Commonwealth v. Fennell, 180

A.3d 778, 781 (Pa. Super. 2018), appeal denied, 192 A.3d 1111 (Pa. 2018);

see also 42 Pa.C.S. § 9545. We have explained that

       [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. Phrased differently, a defendant cannot escape the PCRA
       time-bar by titling his petition or motion as a writ of habeas
       corpus.


Taylor, 65 A.3d at 466.

       As to claims challenging the legality of a sentence, this Court has stated

that

       “[a] court may entertain a challenge to the legality of the sentence
       so long as the court has jurisdiction to hear the claim. In the PCRA
       context, jurisdiction is tied to the filing of a timely PCRA petition.”
       “A sentence is illegal where a statute bars the court from imposing
       that sentence” or where the sentence subjects a defendant to
       double jeopardy. “[A]lthough legality of sentence is always
       subject to review within the PCRA, claims must still first satisfy
       the PCRA’s time limits or one of the exceptions thereto.”


Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super. 2007) (citations

omitted).

       However, “[c]areful consideration should be paid to determining when

a claim pertains to an illegal sentence or if it is more accurately considered a

waivable issue that presents a legal question.” Commonwealth v. Tobin,

89 A.3d 663, 669 (Pa. Super. 2014).

          The phrase ‘illegal sentence’ is a term of art in Pennsylvania
          Courts that is applied to three narrow categories of cases.

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         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 . . . (2000).”

      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 legality of the sentence.”


Commonwealth v. Smith, 194 A.3d 126, 137 (Pa. Super. 2018), appeal

denied, 208 A.3d 64 (Pa. 2019) (some citations omitted).

      In sum, a petitioner must bring a claim under the PCRA if “the PCRA

provides a remedy for such a claim” under 42 Pa.C.S. § 9543(a).

Commonwealth v. Fahy, 737 A.2d 214, 224 (Pa. 1999). The fact that the

claim cannot be considered under the PCRA because it was previously

litigated, waived, or untimely “does not alter the PCRA’s coverage or make

habeas corpus an alternative basis for relief.” Id.

      Even if a claim is not cognizable under the PCRA, it is well settled that

“[h]abeas 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.” See Rouse, 191 A.3d at 6. A

habeas petition is not a substitute for a direct appeal.     See Com. ex rel.

Ashmon v. Banmiller, 137 A.2d 236, 238 (Pa. 1958); Com. ex rel. Smith

v. Cavell, 144 A.2d 505, 506 (Pa. Super. 1958). Therefore, challenges to a

conviction or sentence that could have been raised at trial or in a direct appeal

are waived for purposes of a habeas petition. See Com. ex rel. Brogan v.

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Banmiller, 136 A.2d 141, 142 (Pa. Super. 1957); accord Rouse, 191 A.3d

at 7.

        In Rouse, for example, the petitioner claimed that the General

Assembly failed to give adequate “notice of the penalty for that offense,

especially    in   light   of   other   sentencing   provisions,   such   as   the

minimum/maximum rule.” Rouse, 191 A.3d at 5. The Rouse Court noted

that

        because [the defendant’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, [the defendant’s] claim does not implicate any category of
        illegal sentences previously recognized by Pennsylvania Courts.


Id. at 7.

        Although the Rouse Court determined the claim was not cognizable

under the PCRA, the Court concluded no relief was due because the petitioner

waived the claim.      Id. at 6-7.      Specifically, the Court reasoned that the

petitioner’s claim failed to raise a non-waivable legality-of-sentencing issue.

Id. at 7.    The Court concluded that “because [the petitioner] could have

challenged the constitutionality of Section 1102(b) at sentencing or in a post-

sentence motion, he . . . failed to exhaust all available remedies before

seeking relief under habeas corpus.” Id. at 7.

        Mindful of the foregoing principles, we address Appellant’s first two

arguments that his claims were not cognizable under the PCRA and that the

trial court erred in finding his claims waived. See Appellant’s Brief at 18, 24-

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25. In so doing, we note that Appellant preserved the following claims for

review: (1) the trial court imposed an illegal sentence for second-degree

murder because the Commonwealth failed to charge him with or prove an

underlying felony and because the trial court erred in its instructions to the

jury; and (2) the Sentencing Code did not authorize a sentence of life

imprisonment.5 See Appellant’s Rule 1925(b) Statement at ¶¶ 5-7.

       As to Appellant’s claim that his sentence was illegal because of defects

in his conviction, we conclude that no relief is due. Appellant asserts errors

based on the elements of the offense, the charging documents, and the trial

court’s instructions to the jury, all of which could have been raised at trial or

in a direct appeal.6 Com. ex rel. Smith, 144 A.2d at 506; accord Rouse,


____________________________________________


5 Appellant raised numerous other claims in his September 2016 and October
2018 petitions. However, Appellant’s Rule 1925(b) statement was limited to
the claims set forth above.       See Appellant’s Rule 1925(b) Statement.
Moreover, in his brief, Appellant argues that two claims were meritorious, but
does not meaningfully discuss the other claims that he raised in his petitions.
See Appellant’s Brief at 14-23. Therefore, Appellant has waived the claims
he did not identify in his Rule 1925(b) statement or argue in his brief. See
Pa.R.A.P. 1925(b), 2119(a); Commonwealth v. Johnson, 107 A.3d 52, 69
n.7 (Pa. 2014); Commonwealth v. Clayton, 816 A.2d 217, 221 (Pa. 2002).

6  Even if Appellant’s trial or direct appeal counsel did not preserve these
allegations of error, Appellant had an opportunity to raise ineffective
assistance of counsel claims in a timely PCRA petition. See 42 Pa.C.S. §
9543(a)(2)(i)-(ii), (3)-(4). Additionally, because we do not have the complete
criminal record in this case, we cannot assess whether Appellant previously
litigated these allegations in his direct appeal. See Commonwealth v.
Fritchman, 1268 PHL 90, 2-3 (Pa. Super. filed May 31, 1991) (unpublished
mem.) (indicating that Appellant raised twenty-six issues in his direct appeal
and affirming on the basis of the trial court opinion without reciting those
issues).

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191 A.3d at 7. Although Appellant attempts to frame this issue as an illegal

sentencing challenge, his underlying assertions do not fall within the

recognized categories of non-waivable sentencing claims. See Rouse, 191

A.3d at 7; Tobin, 89 A.3d at 669.        Therefore, to the extent Appellant’s

assertions were not waived under the PCRA, we agree with the trial court that

Appellant waived this claim for the purpose of a habeas petition. See Rouse,

191 A.3d at 7. But cf. 42 Pa.C.S. § 9544(b); Brown, 872 A.2d at 1145;

Fahy, 737 A.2d at 224.

      As to Appellant’s claim that 42 Pa.C.S. § 9721(a) did not authorize the

imposition of a mandatory sentence of life imprisonment, we initially note

Appellant’s arguments were ambiguous.          On one hand, it appears that

Appellant asserted that 42 Pa.C.S. § 9721(a) did not permit the trial court to

impose a mandatory sentence of “imprisonment.”          However, such a claim

would go to the statutory authority of the trial court to impose a life sentence.

See Fowler, 930 A.2d at 592. Therefore, this claim could have been raised

in a timely PCRA petition and could not be raised in a habeas petition. See

id.; accord Commonwealth v. Stultz, 114 A.3d 865, 884 (Pa. Super. 2015)

(addressing a similar claim in an appeal from the denial of a timely PCRA

petition).

      On the other hand, as suggested by the trial court, Appellant’s claim

could also be construed as a challenge to the trial court’s failure to impose a

minimum sentence or a constitutional challenge to 18 Pa.C.S. § 1102(b). See

Order, 1/11/19, at 2-3. Although this Court has held that such claims could

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raise legal errors that are not cognizable under the PCRA, they still do not

constitute non-waivable sentencing claims.         See Rouse, 191 A.3d at 7.

Accordingly, the trial court properly concluded such claims were waived for

the purpose of a habeas petition. See id.

          Therefore, having reviewed the record and the relevant law, we find no

reversible error or abuse of discretion in the trial court’s overall conclusion

that Appellant’s underlying claims were either cognizable under the PCRA or

waived for the purpose of the instant habeas petition. See id.; Rivera, 837

A.2d at 528. As such, Appellant’s first two arguments on appeal merit no

relief.

          In his third argument, Appellant asserts that the trial court failed to

address all of the claims he raised in his petitions and erred in summarily

dismissing of his petition without a response from the Commonwealth.

Appellant’s Brief at 19. However, a habeas petition “may be denied summarily

and without a hearing where it fails to allege facts making out a prima facie

case for the issuance of the writ.”       Balsamo v. Mazurkiewicz, 611 A.2d

1250, 1253 (Pa. Super. 1992) (citations omitted). “A hearing is not required

when there is no issue of fact to be decided or when the facts averred by

relator, even if believed, are insufficient to warrant granting the writ of habeas

corpus.”      Commonwealth v. Judge, 916 A.2d 511, 521 n.13 (Pa. 2007)

(citation omitted).

          Here, as discussed above, the trial court properly concluded Appellant’s

non-PCRA claims were waived based on his failure to exhaust all available

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remedies. Therefore, the trial court was not required to hold a hearing. See

id. Accordingly, we find no abuse of discretion by the trial court in denying

his habeas petition without a hearing. Id.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/19




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