J-S13008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

FRANCISCO ALGARIN,

                            Appellant                 No. 2212 EDA 2016

               Appeal from the PCRA Order Entered June 28, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0928871-1993


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY BENDER, P.J.E.:                         FILED MARCH 07, 2017

        Appellant, Francisco Algarin, appeals pro se from the post-conviction

court’s June 28, 2016 order denying, as untimely, his third petition filed

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541-9546. We

affirm.

        Briefly, in October of 1992, Appellant was arrested and charged with

various offenses, including murder, based on his act of shooting and killing

Mina Myers.      After Myers’ murder, Appellant “hired a man to physically

assault” a witness to whom Appellant had confessed, and “the man fulfilled

the contract by beating [that witness] with a metal rod.”           PCRA Court

Opinion (PCO), 10/19/16, at 3 (citations to the record omitted). Following a

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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jury trial in June of 1994, Appellant was convicted of first-degree murder,

conspiracy, aggravated assault, intimidation of a witness, and firearm

violations. “The jury deadlocked following a penalty phase hearing, so the

court imposed a sentence of life imprisonment on the murder conviction and

lesser consecutive terms of incarceration on the remaining charges on

October 26, 1994.”        Id. at 1.   Appellant filed a timely direct appeal and,

after this Court affirmed his judgment of sentence, our Supreme Court

denied   his   petition    for   allowance   of   appeal   on   August   12,   1997.

Commonwealth v. Algarin, 698 A.2d 104 (Pa. Super. 1997) (unpublished

memorandum), appeal denied, 701 A.2d 574 (Pa. 1997).

      The PCRA court summarized the ensuing procedural history of

Appellant’s case as follows:

             In August of 1998, [Appellant] filed his first PCRA petition,
      pro se.     Counsel was appointed and subsequently filed a
      Turner/Finley no-merit letter.3 The PCRA court denied the
      petition and permitted counsel to withdraw. The Superior Court
      affirmed the PCRA court’s order on November 10, 1999.4 The
      Pennsylvania Supreme Court denied allocatur on April 4, 2000.5
         3
           Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
         and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
         1988) (en banc).
         4
          Commonwealth v. Algarin, 748 A.2d 1248 (Pa. Super.
         1999) (unpublished memorandum).
         5
             Commonwealth v. Algarin, 757 A.2d 927 (Pa. 2000).

           On March 16, 2006, [Appellant] filed his second pro se
      PCRA petition.    The PCRA court dismissed the petition as
      untimely on May 29, 2006. The Superior Court affirmed the
      PCRA court’s order on April 20, 2007.6



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         6
          Commonwealth v. Algarin, 928 A.2d 1117 (Pa. Super.
         2007) (unpublished memorandum).

             On December 8, 2015, [Appellant] filed the current pro se
      collateral petition captioned as a habeas corpus petition.
      [Appellant’s] supplemental petition for habeas corpus relief, filed
      February 10, 2016, was reviewed jointly.              Pursuant to
      Pennsylvania Rule of Criminal Procedure 907, [Appellant] was
      served with notice of the court’s intention to dismiss his PCRA
      petition on April 19, 2016. [Appellant] filed a response to the
      court’s Rule 907 notice on April 29, 2016. The [PCRA] court
      dismissed [Appellant’s] petition as untimely and denied habeas
      corpus relief on June 28, 2016. [Appellant] timely filed the
      instant notice of appeal to the Superior Court on July 6, 2016.

PCO at 2 (one footnote omitted).

      While the PCRA court did not order Appellant to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal, it filed a Rule

1925(a) opinion on October 19, 2016. Herein, Appellant raises the following

three issues for our review, which we have reordered for ease of disposition:

      A. Whether the [PCRA] court abused its discretion in dismissing
      Appellant’s Petition for Writ of Habeas Corpus Ad Subjiciendum
      where the verdict [for] First Degree Murder … was in error in
      that the [c]ourt did not have jurisdiction of the matter, where
      the Criminal Information filed in this action were [sic] fatally
      defective since it failed to recite all of the essential elements of
      the offense and failed to inform Appellant of the precise charge
      he was required to defend against at trail [sic]?

      B. Whether the Pennsylvania Penal Statute 18 Pa.C.S. § 1102(a)
      violates due process, is unconstitutional, and void under the
      vagueness doctrine?

      C. Whether the [PCRA] court abused its discretion in dismissing
      Appellant’s Petition for Writ of Habeas Corpus Ad Subjiciendum
      since he is confined absent a Sentencing Order required by 42
      Pa.C.S. § 9764(a)(8)?

Appellant’s Brief at 3.



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      Preliminarily, we must review the court’s decision to treat Appellant’s

first two claims as being cognizable under the PCRA, despite that Appellant

raised them in a petition for writ of habeas corpus.             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 (2011).
      Unless the PCRA could not provide for a potential remedy, the
      PCRA statute subsumes the writ of habeas corpus. Issues 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.

Commonwealth v. Taylor, 65 A.3d 462, 465–66 (Pa. Super. 2013)

(internal citations and footnote omitted).

      Here, in Appellant’s first issue, he contends “that because the criminal

information charging him was deficient, subject matter jurisdiction never

vested in the trial court.” PCO at 3; see also Appellant’s Brief at 8-10. The

court concluded that Appellant’s “challenge pertaining to the trial court’s

jurisdiction was cognizable      under     the   PCRA[,]”   citing 42   Pa.C.S. §

9543(a)(2)(viii) (providing that a claim that a conviction or sentence

resulted from “[a] proceeding in a tribunal without jurisdiction” is cognizable

under the PCRA). The court did not err in this decision. Based on section

9543(a)(2)(viii), it is clear that the PCRA affords relief for the type of claim

raised by Appellant in his first issue.

      The same is true for the second issue presented by Appellant, wherein

he argues “that he was sentenced pursuant to an unconstitutional statute,

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18 [Pa.C.S.] § 1102(a)….” PCO at 4. Again, we agree with the PCRA court’s

decision that this issue is cognizable under the PCRA, as it “implicate[s] the

legality   of    [Appellant’s]   sentence….”    Id.   (citing   42   Pa.C.S.   §

9543(a)(2)(vii)); see also 42 Pa.C.S. § 9542 (stating that the PCRA

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

obtain collateral relief”); Commonwealth v. Hockenberry, 689 A.2d 283,

288 (Pa. Super. 1997) (concluding that a challenge to the legality of a

sentence is cognizable under the PCRA).

      Accordingly, Appellant’s first two issues were properly treated as PCRA

claims by the court. Thus, in reviewing the court’s denial of those claims,

we assess whether the determination of the PCRA court is supported by the

evidence of record and is free of legal error. Commonwealth v. Ragan,

923 A.2d 1169, 1170 (Pa. 2007).           We must begin by addressing the

timeliness of Appellant’s petition, because the PCRA time limitations

implicate our jurisdiction and may not be altered or disregarded in order to

address the merits of a petition.     Commonwealth v. Bennett, 930 A.2d

1264, 1267 (Pa. 2007) (stating PCRA time limitations implicate our

jurisdiction and may not be altered or disregarded to address the merits of

the petition).     Under the PCRA, any petition for post-conviction relief,

including a second or subsequent one, must be filed within one year of the

date the judgment of sentence becomes final, unless one of the following

exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:

      (b) Time for filing petition.--

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         (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. § 9545(b)(1)(i)-(iii).   Any petition attempting to invoke 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).

      Here, Appellant’s judgment of sentence became final in November of

1997, making his instant petition filed in December of 2015 patently

untimely.   Thus, for this Court to have jurisdiction to review the merits of

Appellant’s first two issues, he must prove that they meet an exception to

the timeliness requirements set forth in 42 Pa.C.S. § 9545(b). Appellant has

completely failed to satisfy this burden. In his principal brief to this Court,

Appellant does not mention, let alone plead or prove the applicability of, any

timeliness exception. In his reply brief, he simply contends that his first two

issues are not subsumed under the PCRA and, thus, the timeliness

requirement does not apply to those claims. For the reasons stated supra,

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we disagree.    Because Appellant’s first two issues are cognizable PCRA

claims, and he has failed to plead or prove the applicability of any timeliness

exception, the PCRA court did not err in dismissing those two issues.

      In Appellant’s third claim, he contends that the Department of

Corrections (DOC) lacks legal authority to detain him because it “does not

possess a lawful court order signed by the sentencing court authorizing any

lawful restraint.” Appellant’s Brief at 11. Appellant claims that the DOC’s

failure to have a written sentencing order in his case violates 42 Pa.C.S. §

9764(a)(8) (stating that “[u]pon commitment of an inmate to the custody of

the [DOC], the sheriff or transporting authority shall provide to the

institution’s records officer or duty officer, … (8) [a] copy of the sentencing

order and any detainers filed against the inmate which the county has

notice”).

      Preliminarily, this Court has treated “a claim that a defendant’s

sentence is illegal due to the inability of the DOC to ‘produce a written

sentencing order related to [his] judgment of sentence’ [as] constitut[ing] a

claim legitimately sounding in habeas corpus.” Joseph v. Glunt, 96 A.3d

365, 368, 369 (Pa. Super. 2014). Accordingly, Appellant’s argument in this

regard is not subject to the PCRA’s one-year time limitation.




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        Nevertheless, we ascertain no abuse of discretion by the PCRA court in

rejecting Appellant’s petition for writ of habeas corpus premised on this

argument.1 In Joseph, the appellant contended,

        that the use of the word “shall” in section 9764 establishes a
        mandatory requirement that the DOC must satisfy in order to
        establish its jurisdiction to detain a prisoner. Consequently, [the
        appellant] claims that the DOC's inability to produce a copy of
        this sentencing report constitutes a fatal failure that should
        result in his immediate release.

Joseph, 96 A.3d at 370.

        In rejecting the appellant’s argument, the Joseph panel held that,

        [t]he language and structure of section 9764, viewed in context,
        make clear that the statute pertains not to the DOC's authority
        to detain a duly-sentenced prisoner, but, rather, sets forth the
        procedures and prerogatives associated with the transfer of an
        inmate from county to state detention. None of the provisions of
        section 9764 indicate an affirmative obligation on the part of the
        DOC to maintain and produce the documents enumerated in
        subsection 9764(a) upon the request of the incarcerated person.
        Moreover, section 9764 neither expressly vests, nor
        implies the vestiture, in a prisoner of any remedy for
        deviation from the procedures prescribed within.

____________________________________________


1
    We note that:

        Under Pennsylvania statute, habeas corpus is a civil remedy
        [that] lies solely for commitments under criminal process.
        Habeas corpus is an extraordinary remedy and may only be
        invoked when other remedies in the ordinary course have been
        exhausted or are not available. Our standard of review of a trial
        court's order denying a petition for [a] writ of habeas corpus is
        limited to [an] abuse of discretion.

Joseph, 96 A.3d at 369 (internal citations and quotation marks omitted).




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Id. at 371 (footnote omitted; emphasis added).        Thus, under Joseph,

Appellant is not entitled to any relief even if the DOC does not possess a

written copy of his sentencing order, as he claims.

      We note that Appellant attempts to distinguish his case from Joseph.

However, his confusing argument is unconvincing. It seems that Appellant’s

position is that, unlike in Joseph, the certified record in his case does not

demonstrate that “the authorization for [his] incarceration” came from a

judge, but that his sentence was only “certified by a clerk….”    Appellant’s

Brief at 13.   The record belies this contention, as it demonstrates that on

October 26, 1994, Appellant was sentenced by The Honorable Jane Cutler

Greenspan of the Court of Common Pleas of Philadelphia County.      Appellant

acknowledged this fact in his post-sentence motion filed shortly after his

sentence was imposed. See Appellant’s Post-Sentence Motion, 11/7/94, at

1 (“On October 26, 1994, Judge Greenspan resentenced [Appellant] to life

imprisonment as to murder and also imposed sentence as to other Bills on

which [Appellant] had been convicted.”). Accordingly, Appellant’s attempt to

distinguish his case from our decision in Joseph is unconvincing.    Rather,

we conclude that the PCRA court did not abuse its discretion by relying on

Joseph to reject Appellant’s argument that he is entitled to relief based on

the ostensible violation of section 9764(a)(8).



      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/7/2017




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