J-S06041-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                                 :                   PENNSYLVANIA
                                 :
             v.                  :
                                 :
                                 :
    JEROME MOUZON,               :
                                 :
                 Appellant       :                 No. 107 EDA 2017
                                 :

                 Appeal from the PCRA Order February 25, 2015
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0402031-1998,
              CP-51-CR-0404131-1998, CP-51-CR-0409152-1998

BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                           FILED APRIL 13, 2018

       Jerome Mouzon (“Mouzon”) appeals, pro se, from the Order dismissing

his second Petition for relief filed pursuant to the Post Conviction Relief Act

(“PCRA”). See 42 Pa.C.S.A. §§ 9541-9546.1 We affirm.

       The PCRA court set forth the relevant procedural history as follows:

             On December 22, 1998, [] Mouzon … was convicted by a
       jury sitting before the Honorable Ricardo Jackson of eight counts
____________________________________________


1 Although Mouzon styled his Petition for a Writ of Habeas Corpus, the PCRA
court properly treated it as a Petition filed pursuant to the PCRA. See 42
Pa.C.S.A. § 9542 (providing that “[t]he 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 exists when
this subchapter takes effect, including habeas corpus.”); see also
Commonwealth v. Turner, 80 A.3d 754, 770 (Pa. 2013) (noting that the
PCRA subsumes the remedy of habeas corpus where the PCRA provides a
remedy for the claim). In his Petition, Mouzon challenges the legality of his
sentence. Because the PCRA provides a remedy for Mouzon’s claims, the PCRA
court properly treated the Petition as filed under the PCRA.
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     of robbery, eight counts of possession of an instrument of crime,
     and seven counts of criminal conspiracy. On June 23, 1999, he
     was sentenced to an aggregate term of 72 1/2 to 145 years’
     imprisonment. [Mouzon] appealed, and on May 23, 2011, the
     Superior Court affirmed the judgment of sentence.           [See
     Commonwealth v. Mouzon, 778 A.2d 1245 (Pa. Super. 2001)
     (unpublished memorandum).] The Pennsylvania Supreme Court
     granted review and reversed; it then remanded the case to the
     Superior Court to consider the merits of [Mouzon’s] challenge to
     the discretionary aspects of his sentence. [See Commonwealth
     v. Mouzon, 812 A.2d 617 (Pa. 2002).] On July 1, 2003, the
     Superior Court once again affirmed the judgment of sentence.
     [See Commonwealth v. Mouzon, 828 A.2d 1126 (Pa. Super.
     2003).]

            On March 11, 2004, [Mouzon] filed his first pro se [PCRA]
     [P]etition. Emily Cherniak, Esquire[,] was appointed, and she filed
     an [A]mended [P]etition. On June 28, 2006, this [P]etition was
     dismissed. … [T]he Superior Court affirmed the dismissal on June
     6, 2007[, and t]he Pennsylvania Supreme Court denied his
     [P]etition for allowance of appeal on November 14, 20[0]7. [See
     Commonwealth v. Mouzon, 931 A.2d 49 (Pa. Super. 2007)
     (unpublished memorandum), appeal denied, 936 A.2d 40 (Pa.
     2007).]

            [On December 12, 2013, Mouzon filed a Petition for Writ of
     Habeas Corpus at CP-51-CR-0404131-1998, arguing that the
     Department of Corrections lacked legal authority for his detention
     based upon the lack of a written sentencing order. No action was
     taken on this Petition.] On June 23, 2014, [Mouzon filed another
     Petition for Writ of Habeas Corpus, the instant Petition, at all of
     the case numbers, raising a wholly separate claim. The PCRA
     court treated this Petition as Mouzon’s second PCRA Petition.]
     Pursuant to Pennsylvania Rule of Criminal Procedure 907,
     [Mouzon] was served with notice of the court’s intention to dismiss
     his PCRA [P]etition on December 19, 2014, and his [P]etition was
     dismissed thereafter on February 25, 2015. [Mouzon] did not file
     an appeal. However, on January 29, 2016, [Mouzon] filed a PCRA
     [P]etition requesting reinstatement of his appellate rights to
     appeal from the court’s February 25, 2015 Order. After review,
     the PCRA court issued an [O]rder on December 8, 2016 granting
     [Mouzon’s] [P]etition and reinstated his appellate rights nunc pro
     tunc. [Mouzon] filed a timely appeal [of the February 25, 2015
     Order] on December 28, 2016.

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PCRA Court Opinion, 2/14/17, at 1-2 (footnotes omitted).

      Mouzon raises the following questions for our review:

      A. Whether [Mouzon’s] sentence is a nullity as the mandatory
         sentencing statute[s] in Pennsylvania have been ruled facially
         unconstitutional?

      B. Whether the [PCRA] court abused its discretion in dismissing
         [Mouzon’s] Petition … since he is confined absent a Sentencing
         Order required by 42 Pa.C.S.A. § 9764(a)(8)?

Brief for Appellant at 3.

               We review an order dismissing a petition under the PCRA in
      the light most favorable to the prevailing party at the PCRA level.
      This review is limited to the findings of the PCRA court and the
      evidence of the record. We will not disturb a PCRA court’s ruling
      if it is supported by evidence and is free of legal error.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

      Under the PCRA, a defendant must file any PCRA petition within one

year of the date the judgment of sentence becomes final. See 42 Pa.C.S.A.

§ 9545(b)(1). 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, or the expiration of

time for seeking the review.” Id. § 9545(b)(3).

      Here, Mouzon’s sentence became final in August 2003, after the time to

seek review with our Supreme Court expired. See Pa.R.A.P. 1113(a). Thus,

Mouzon’s June 23, 2014 Petition is facially untimely under the PCRA.




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       However, Pennsylvania courts may consider an untimely petition if the

appellant can explicitly plead and prove one of three exceptions set forth under

42 Pa.C.S.A. § 9545(b)(1)(i-iii). Any petition invoking one of these exceptions

“shall be filed within 60 days of the date the claim could have been presented.”

Id. § 9545(b)(2).

       Here,   Mouzon      invokes    the      newly-recognized   constitutional   right

exception, and argues that the United States Supreme Court’s decision in

Alleyne v. United States, 133 S. Ct. 2151 (2013), renders his sentence

illegal. Brief for Appellant at 7-11. However, Alleyne was decided on June

17, 2013. Mouzon filed the PCRA Petition on June 23, 2014, well over sixty

days after the date the claim could have been presented. See 42 Pa.C.S.A.

§ 9545(b)(2); see also Commonwealth v. Boyd, 923 A.2d 513, 517 (Pa.

Super. 2007) (stating that “[w]ith regard to [the newly-]recognized

constitutional right, this Court has held that the sixty-day period begins to run

upon the date of the underlying judicial decision.”).2

       Even if Mouzon had properly invoked the exception at section

9545(b)(1)(iii), the rule established in Alleyne does not apply retroactively.



____________________________________________


2 In his Petition, Mouzon also invokes Commonwealth v. Munday, 78 A.3d
661 (Pa. Super. 2013), as implicating the newly-recognized constitutional
right exception. However, this decision was not decided by the Pennsylvania
Supreme Court or the United States Supreme Court, and did not announce a
new constitutional right that applies retroactively as required by section
9545(b)(1)(iii). Further, Mouzon did not file his Petition within sixty days of
the Munday decision.

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J-S06041-18


See Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016)

(holding that “Alleyne does not apply retroactively to cases pending on

collateral review.”); see also Commonwealth v. Miller, 102 A.3d 988, 995

(Pa. Super. 2014) (stating that while Alleyne claims go to the legality of the

sentence, a court cannot review a legality claim where it does not have

jurisdiction).3    As a result, Mouzon failed to meet the third timeliness

exception.

       Mouzon also presents claims raised in his December 12, 2013 Petition

for Writ of Habeas Corpus. See Brief for Appellant at 14-17. However, as

noted above, no action was taken on this Petition, which was only filed at CP-

51-CR-0404131-1998. Mouzon filed the Petition at issue in this case at all of

the case numbers on June 23, 2014, raising only an Alleyne challenge in the

June 23, 2014 Petition, and not raising any claims regarding the absence of a

sentencing order. In the Rule 907 Notice and Mouzon’s Response, the PCRA

court and Mouzon only cited to his Alleyne challenge. The PCRA court, by an

Order entered on February 25, 2015, specifically denied Mouzon’s June 23,

2014 Petition. Furthermore, in his Petition seeking reinstatement of his direct


____________________________________________


3 We acknowledge the decision in Commonwealth v. DiMatteo, 177 A.3d
182, 191-92 (Pa. 2018), which held that where petitioner’s sentence was
rendered illegal by Alleyne prior to his judgment of sentence becoming final,
and he presented a legality challenge in a timely PCRA petition, he is entitled
to have his sentence remedied. In this case, Mouzon filed an untimely Petition
and his judgment of sentence was final at the time Alleyne was decided.



                                           -5-
J-S06041-18


appeal rights of the February 25, 2015 Order, Mouzon makes no mention of

his December 12, 2013 Petition or the claims therein. Thus, Mouzon’s current

appeal does not challenge the claims raised in his December 12, 2013

Petition.4

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/18




____________________________________________


4 We note that “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 constitutes a claim legitimately sounding in habeas corpus.” Joseph
v. Glunt, 96 A.3d 365, 368 (Pa. Super. 2014) (citation, brackets, and
quotation marks omitted). The Joseph Court addressed the DOC’s authority
to incarcerate a prisoner under section 9764, and determined that there is no
mandatory requirement that the DOC maintain or produce a written
sentencing order upon a request of an incarcerated person. See Joseph, 96
A.3d at 371 (stating that “[n]one 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.”). Further, section 9764 does not create any remedy or
cause of action for a prisoner based on the failure to provide a sentencing
order. Id. Here, the PCRA court noted that Judge Jackson entered a
sentencing Order on June 23, 1999, the sentence was accurately docketed,
and the Order was maintained by the clerk of court. See PCRA Court Opinion,
2/14/17, at 4.

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