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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ANDRE M. ADAMS,                              :    IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                          Appellant          :
                                             :
                     v.                      :
                                             :
STACY PARKS MILLER, CENTRE                   :           No. 767 MDA 2015
COUNTY DISTRICT ATTORNEY AND                 :
ROBERT GILMORE                               :


                  Appeal from the Order Entered April 10, 2015,
                 in the Court of Common Pleas of Centre County
                           Civil Division at No. 14-4779


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED NOVEMBER 06, 2015

        Andre M. Adams appeals from the order of April 10, 2015, denying his

petition for writ of habeas corpus. We affirm.

        On January 10, 2013, following a jury trial, appellant was found guilty

of 38 charges at two separate dockets.            At No. CP-14-CR-1228-2012,

appellant was convicted of 16 counts of possession of a controlled substance

with intent to deliver (“PWID”), one count of criminal conspiracy, and one

count    of   criminal    use   of   a   communication    facility   (“CUCF”).   At

No. CP-14-CR-355-2012, appellant was convicted of 14 counts of PWID, and

6 counts of CUCF.          Commonwealth v. Adams, No. 808 MDA 2014,

unpublished memorandum at 2 (Pa.Super. filed June 17, 2015).                     On

February 12, 2013, appellant received an aggregate sentence of 79 to


* Former Justice specially assigned to the Superior Court.
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158 years’ imprisonment on the two dockets. Id. On direct appeal to this

court, on June 17, 2015, we vacated appellant’s judgment of sentence and

remanded     for   re-sentencing,   finding   that   appellant’s   sentence   was

unconstitutional, and illegal, pursuant to Alleyne v. United States,

U.S.     , 133 S.Ct. 2151 (2013) (holding that facts that increase mandatory

minimum sentences must be submitted to the jury and must be found

beyond a reasonable doubt). Id. at 8, citing Commonwealth v. Cardwell,

105 A.3d 748, 751 (Pa.Super. 2014), appeal denied, 121 A.3d 494 (Pa.

2015) (applying Alleyne and recognizing that the mandatory minimum

sentences associated with the weight of narcotics possessed by a drug

dealer pursuant to 18 Pa.C.S.A. § 7508 are unconstitutional).1

       Meanwhile, during the pendency of his direct appeal, appellant filed

the instant habeas petition, alleging that the criminal statutes he was found

guilty of violating are unconstitutional due to the lack of an enacting clause.

The trial court described the procedural posture of this matter as follows:

                  While the appeal to the Superior Court was
            pending, [appellant] filed the present motion before
            the Court, which is captioned Petition for Writ of
            Habeas Corpus Sub Jiciendum, which was filed on
            December 24, 2014. Based upon the Court’s review
            of the documentation filed by [appellant] as well as
            his argument in court this morning, it is [appellant]’s
            sole position that because there is no Enacting
            Clause in the Pennsylvania Crimes Code, the

1
  According to the Commonwealth, Office of Attorney General, appellant was
re-sentenced on August 25, 2015, to 45 to 90 years’ imprisonment.
(Commonwealth’s brief at 4.)       An appeal from the August 25, 2015
judgment of sentence is currently pending at No. 1695 MDA 2015.


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              sentencing judge had no jurisdiction to try the
              charges set forth in the two informations filed by the
              District Attorney of Centre County and/or the
              Attorney General of Pennsylvania. This Court does
              not believe that [appellant]’s position has any merit
              and does not believe it appropriate for a county trial
              judge    to  declare    the   entire Crimes Code
              unconstitutional.

Order, 4/17/15 at 1 (Docket #29). The trial court denied appellant’s petition

in open court on April 10, 2015, following a hearing, and also by order filed

April 17, 2015. (Id.) The trial court also noted that, “if the Petition for Writ

of Habeas Corpus were to be considered a petition under the Post-Conviction

Relief Act [(“PCRA”)2], the petition would have been dismissed as premature

in light of the fact that there is a present appeal before the Superior Court.”

(Id. at 2.)    Appellant filed a timely pro se notice of appeal on April 23,

2015.     Appellant was not ordered to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.

On May 18, 2015, the trial court issued a Rule 1925 statement, relying on its

previous order filed April 17, 2015, and directing the clerk to transmit the

existing record to this court. (Docket #38.)

                    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 (2011). Unless the PCRA could
              not provide for a potential remedy, the PCRA statute
              subsumes      the     writ   of    habeas     corpus.
              [Commonwealth v. Fahy, 737 A.2d 214, 223-224
              (Pa. 1999)]; Commonwealth v. Chester, 557 Pa.
              358, 733 A.2d 1242 (1999).           Issues that are

2
    42 Pa.C.S.A. §§ 9541-9546.


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          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 (1998); see
          also Commonwealth v. Deaner, 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).

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

          [T]he PCRA is the exclusive vehicle for obtaining
          post-conviction collateral relief. Commonwealth v.
          Bronshtein, 561 Pa. 611, 614 n. 3, 752 A.2d 868,
          869-70 n. 3 (2000). This is true regardless of the
          manner      in    which     the   petition is titled.
          Commonwealth v. Hutchins, 760 A.2d 50, 52 n. 1
          (Pa.Super. 2000).         Indeed, the PCRA statute
          specifically provides for such treatment:

               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.A. § 9542. Simply because the merits of
          the PCRA petition cannot be considered due to
          previous litigation, waiver, or an untimely filing,
          there is no alternative basis for relief outside the
          framework of the PCRA.            See generally,
          Commonwealth v. Fahy, 558 Pa. 313, 332, 737
          A.2d 214, 223-224 (1999) (citing Commonwealth
          v. Chester, 557 Pa. 358, 733 A.2d 1242 (1999)).

Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.Super. 2001).

          In Commonwealth v. Fowler, 930 A.2d 586
          (Pa.Super. 2007), the learned Judge, now Justice,
          McCaffery, collected cases and reiterated that all
          motions filed after a judgment of sentence is final


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            are to be construed as PCRA petitions. Id. at 591
            (citing Commonwealth v. Johnson, 803 A.2d
            1291, 1293 (Pa.Super. 2002)); Commonwealth v.
            Evans,    866     A.2d    442   (Pa.Super.   2005);
            Commonwealth v. Beck, 848 A.2d 987, 989
            (Pa.Super. 2004); Commonwealth v. Guthrie, 749
            A.2d 502, 503 (Pa.Super. 2000). More recently, in
            Commonwealth v. Jackson, 30 A.3d 516
            (Pa.Super. 2011), this Court held that a defendant’s
            motion to correct his illegal sentence was properly
            addressed as a PCRA petition, stating broadly, “any
            petition filed after the judgment of sentence
            becomes final will be treated as a PCRA petition.”
            Id. at 521 (quoting Johnson, supra).

Taylor, 65 A.3d at 466.     See also Commonwealth v. Stout, 978 A.2d

984, 987 (Pa.Super. 2009) (PCRA, not petition for habeas corpus, provided

prisoner with remedy for allegations that court lacked jurisdiction and

authority to prosecute him).

      Appellant’s allegations, including the enacting clause argument, are

cognizable under the PCRA.     Because appellant’s appeal at No. 808 MDA

2014 was still pending, however, his judgment had never become final for

purposes of a PCRA petition.      42 Pa.C.S.A. § 9545(b)(3) (providing “a

judgment becomes final at the conclusion of direct review . . . or at the

expiration of time for seeking the review”).    Appellant cannot file a PCRA

petition before his judgment becomes final, so the court lacked authority to

decide appellant’s PCRA petition. 42 Pa.C.S.A. § 9545(b) (any PCRA petition

“shall be filed within one year of the date the judgment becomes final” with

certain exceptions permitting a later filing). In fact, appellant’s judgment of

sentence is still not final, as he has taken another direct appeal from


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re-sentencing. As stated above, the trial court recognized that if appellant’s

habeas petition is considered a PCRA petition, it is premature.        While the

trial court ultimately dismissed appellant’s petition on the merits, “we may

affirm a PCRA court’s decision on any grounds if the record supports it.”

Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.Super. 2014) (quotation

marks and citation omitted).3

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/6/2015




3
  We note that a PCRA petitioner has a rule-based right to counsel for a first
PCRA. See Stout, 978 A.2d at 988 (“our finding above that appellant’s
habeas corpus petition is the functional equivalent of a petition under the
PCRA raises issues regarding the right to legal representation. Generally
speaking, an indigent petitioner is entitled to the appointment of counsel on
his first post-conviction attack of his conviction.”) (citations omitted). This is
true even where the petition is facially untimely. Id. Here, however,
appellant’s petition is premature, filed during the pendency of his direct
appeal and before judgment of sentence was final.


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