J-A10006-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KEVIN WILLIAMS A/K/A KIRBY STEWART              IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

JOHN KERESTES

                            Appellee                 No. 1407 MDA 2014


                 Appeal from the Order Entered August 8, 2014
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0004395-1999


BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                         FILED APRIL 24, 2015

        Appellant, Kevin Williams a/k/a Kirby Stewart, appeals pro se from the

order entered in the Lancaster County Court of Common Pleas, which

dismissed his pro se serial petition for collateral relief pursuant to the Post

Conviction Relief Act (“PCRA”),1 which Appellant styled as a “Praecipe for

Writ of Habeas Corpus ad Subjiciendum.” We affirm.

        The relevant facts and procedural history of this case are as follows.

On March 29, 2000, the court convicted Appellant of first-degree murder, in

connection with Appellant’s instruction to his associates to kill Victim in

retaliation for Victim’s theft of money and guns from a crack house

maintained by Appellant. The court sentenced Appellant on the day of his
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1
    42 Pa.C.S.A. §§ 9541-9546.
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conviction to life imprisonment. This Court affirmed Appellant’s judgment of

sentence on March 30, 2001, and our Supreme Court denied allowance of

appeal on August 20, 2001.          See Commonwealth v. Stewart, 777 A.2d

510 (Pa.Super. 2001), appeal denied, 566 Pa. 681, 784 A.2d 117 (2001).

From 2001-2012, Appellant unsuccessfully litigated multiple PCRA petitions.

       On December 26, 2013, Appellant filed the current pro se petition

(styled as a petition for habeas corpus relief), as a civil action in the

Lancaster County Court of Common Pleas. On February 10, 2014, the court

entered an order stating that Appellant’s current petition is actually a PCRA

petition and transferring the petition to the Clerk of Courts. On August 8,

2014, the court denied PCRA relief.2 Appellant timely filed a pro se notice of

appeal on August 21, 2014.           On September 11, 2014, the court ordered

Appellant to file a concise statement of errors complained of on appeal,

pursuant to Pa.R.A.P. 1925(b). Appellant timely filed his concise statement

on September 26, 2014; Appellant filed a supplemental concise statement


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2
   The record is unclear whether the court issued notice of its intent to
dismiss Appellant’s petition without a hearing, per Pa.R.Crim.P. 907.
Appellant has not raised this issue on appeal, so he waived any defect in
notice. See Commonwealth v. Taylor, 65 A.3d 462 (Pa.Super. 2013)
(explaining appellant’s failure to raise on appeal PCRA court’s failure to
provide Rule 907 notice results in waiver of claim). Moreover, failure to
issue Rule 907 notice is not reversible error where the petition is untimely.
Id. See also Commonwealth v. Pursell, 561 Pa. 214, 749 A.2d 911
(2000) (indicating court’s failure to provide notice of intent to dismiss
without hearing does not warrant remand, where petition fails in all
respects).


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on October 27, 2014.3

       Appellant raises the following issues for our review:

          DID THE [PCRA] COURT ERR IN ITS DECISION; KNOWING
          THAT PENNSYLVANIA’S [DEPARTMENT OF CORRECTIONS
          (“DOC”)], HAS NO SENTENCING ORDER, THUS VIOLATING
          STATUTORY PROVISION[S] AT 37 PA. CODES § 91.3[;] 42
          PA.C.S.A. § 9764, 42 PA.C.S.A. § 9762, TITLE 42
          PA.C.S.A. § 9764(A)(8)[.]

          DID THE [PCRA] COURT ERR IN ITS DECISION; KNOWING
          THAT APPELLANT’S “BILL OF INFORMATION” IS A
          GENERAL CHARGE OF 2501(a), THUS VIOLATING THE 14 TH
          AMENDMENT OF THE UNITED STATES CONSTITUTION,
          VIOLATING DUE-PROCESS, FAILING TO GIVE APPELLANT
          “NOTICE” OF WHAT CHARGES TO DEFEND AGAINST AND
          THUS FINDING APPELLANT GUILTY OF 2502(a) AFTER
          TRIAL.

          DID THE [PCRA] COURT ERR IN ITS DECISION; IN
          SUSPENDING THE WRIT OF HABEAS CORPUS, KNOWING
          THAT THE ISSUES RAISED ARE NOT COGNIZABLE UNDER
          THE [PCRA].

          DID THE [PCRA] COURT ERR IN ITS DECISION; KNOWING
          THAT APPELLANT WAS NEVER FORMALLY ARRAIGNED, ON
          A “CAPITAL OFFENSE” VIOLATED DUE-PROCESS [AND
          THE] 14TH AMENDMENT OF THE UNITED STATES
          CONSTITUTION….

          DID THE [PCRA] COURT ERR IN ITS DECISION; KNOWING
          THAT THE COMMONWEALTH NEVER GAVE “NOTICE OF
          AGGRAVATING       CIRCUMSTANCES”  VIOLATING   DUE
          PROCESS OF THE LAW [AND THE] 14TH AMENDMENT OF
          THE UNITED STATES CONSTITUTION, THUS VIOLATING
          PA.R.CRIM.P. 802.


____________________________________________


3
   Notwithstanding our disposition, we would in any event decline to consider
the issues raised in Appellant’s supplemental concise statement, which he
filed without leave of court.


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          DID THE [PCRA] COURT ERR IN ITS DECISION; KNOWING
          THAT THERE IS NO “STATUTORY AUTHORIZATION” FOR A
          SENTENCE, THEN THAT SENTENCE IS ILLEGAL AND MUST
          BE VACATED AS A MATTER OF LAW, AND THE SENTENCE
          IS SUBJECT TO BE CORRECTED.

          DID THE [PCRA] COURT ERR IN ITS DECISION; KNOWING
          THAT THE COMMONWEALTH IS IN VIOLATION OF ACT OF
          JULY 5, 2012, NO. 122 § 3, AND CODIFIED AT 12 PA.C.S.
          § 9763.

          DID THE [PCRA] COURT ERR IN ITS DECISION; KNOWING
          THE RETURN ON A WRIT IS 42 PA.C.S. § 6504, THUS
          VIOLATING IT WITHOUT A HEARING, IS ABUSE OF
          JUDICIARY MISCONDUCT.

          DID THE [PCRA] COURT ERR IN ITS DECISION; ON
          WHETHER THE SENTENCING COURT IMPOSED AN ILLEGAL
          SENTENCE IN VIOLATION OF [APPELLANT’S] SIXTH
          AMENDMENT RIGHTS BY INVOKING THE MANDATORY
          MINIMUM PROVISION OF 18 PA.C.S. § 6317, WHERE SUCH
          DETERMINATION WAS NOT DETERMINED OR FOUND TO
          BE PRESENT BY A JURY BEYOND A REASONABLE DOUBT.
          AND WHETHER A CHALLENGE TO A SENTENCE PURSUANT
          TO ALLEYNE V. UNITED STATES, ___ U.S. ___, 133
          S.CT. 2151, 186 L.ED.2D 314 (2013) IMPLICATES THE
          LEGALITY OF THE SENTENCE AND IS NON-WAIVABLE.

          DID THE [PCRA] COURT ERR IN ITS DECISION; KNOWING
          THAT THE PEOPLE INVOLVED IN [APPELLANT’S] CASE
          NEVER TOOK A[N] “OATH OF OFFICE” SO THEY WERE
          IMPERSONATING PUBLIC OFFICIALS, IN VIOLATION OF
          ARTICLE VI, SECTION (3) OF THE PENNSYLVANIA
          CONSTITUTION, WITHOUT [AN] OATH OF OFFICE.

          DID THE [PCRA] COURT ERR IN ITS DECISION; TO BASE
          ITS RATIONALE TO DENY [APPELLANT’S] WRIT OF HABEAS
          CORPUS AD SUBJICIENDUM, WAS INHERENTLY BIAS—THE
          [PRESIDENT] JUDGE, JUDGE, [DISTRICT ATTORNEY] &
          [ASSISTANT    DISTRICT    ATTORNEY],   HAVE    ALL
          BENEFITTED FROM APPELLANT’S INCARCERATION. THESE
          ACTORS WERE OPERATING UNDER THE GUISE OF FRAUD
          ON THE COURT.

(Appellant’s Brief at ii-iii).
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      Preliminarily,    we    observe   that       any   petition   for    post-conviction

collateral relief will generally be considered a PCRA petition, even if

captioned as a request for habeas corpus relief, if the petition raises issues

for which the relief sought is available under the PCRA.                   See generally

Commonwealth           v.    Fahy,    558    Pa.    313,    737     A.2d    214   (1999);

Commonwealth           v.   Lantzy,    558    Pa.    214,   736     A.2d    564   (1999);

Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638 (1998); 42

Pa.C.S.A. § 9542 (stating PCRA shall be sole means of obtaining collateral

relief and encompasses all other common law and statutory remedies for

same purpose). The writ of habeas corpus continues to exist as a separate

remedy only if the claim raised is not cognizable under the PCRA.

Peterkin, supra at 552, 722 A.2d at 640.                 See also Commonwealth v.

Beck, 848 A.2d 987 (Pa.Super. 2004) (explaining petition for writ of habeas

corpus will be deemed PCRA petition if it raises issues that are generally

cognizable under PCRA); Commonwealth v. Deaner, 779 A.2d 578, 580

(Pa.Super. 2001) (stating “any collateral petition raising issues with respect

to remedies offered under the PCRA will be considered a PCRA petition”).

When considering what types of claims fall within the ambit of the PCRA,

“the scope of the PCRA eligibility requirements should not be narrowly

confined to its specifically enumerated areas of review.”             Commonwealth

v. Hackett, 598 Pa. 350, 363, 956 A.2d 978, 986 (2008), cert. denied, 556

U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d 277 (2009).                          “Such narrow

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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.”       Id. (internal

citation omitted).   See also 42 Pa.C.S.A. § 9543(a)(2) (describing claims

eligible for relief under PCRA).

      Additionally, the timeliness of a PCRA petition is a jurisdictional

requisite. Taylor, supra. A PCRA petition must be filed within one year of

the date the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1).

A judgment is deemed 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 at the expiration of time for seeking

review.” 42 Pa.C.S.A. § 9545(b)(3). The three statutory exceptions to the

timeliness provisions in the PCRA allow for very limited circumstances under

which the late filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).

To invoke an exception, a petition must allege and the petitioner must

prove:

         (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


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         (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.A. § 9545(b)(1)(i)-(iii).     A petitioner asserting a timeliness

exception must file a petition within sixty days of the date the claim could

have been presented.    See 42 Pa.C.S.A. § 9545(b)(2).     “As such, when a

PCRA petition is not filed within one year of the expiration of direct review,

or not eligible for one of the three limited exceptions, or entitled to one of

the exceptions, but not filed within 60 days of the date that the claim could

have been first brought, the trial court has no power to address the

substantive merits of a petitioner’s PCRA claims.”       Commonwealth v.

Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783 (2000).

      Instantly, even with the number and phrasing of the issues presented

on appeal, Appellant’s chief complaint is that the Department of Corrections

lacks the original, signed sentencing order in Appellant’s case.    Appellant

insists that absent the original sentencing order, there is no statutory

authorization for his confinement, which renders his sentence illegal and

entitles him to immediate release. Despite his effort to distance his current

petition from the PCRA, Appellant’s petition poses claims directly related to

the PCRA statute; as presented, he challenges the legality of his conviction

and sentence.   See generally Commonwealth v. Fowler, 930 A.2d 586

(Pa.Super. 2007), appeal denied, 596 Pa. 715, 944 A.2d 756 (2008)

(holding any collateral attack on legality of sentence must be raised in PCRA
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petition); Guarrasi v. Scott, 25 A.3d 394, 402 (Pa.Cmwlth. 2011) (stating

plaintiff cannot use civil action to wage collateral attack on his criminal

proceedings). Thus, the trial court properly treated Appellant’s most recent

prayer for collateral relief as a PCRA petition.4      See Peterkin, supra;

Deaner, supra.


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4
  Appellant challenges the lack of the original sentencing order in his first,
sixth, seventh, and twelfth (not listed in his statement of questions
presented) issues on appeal. Appellant’s third and eighth issues on appeal
relate to Appellant’s general complaint that the court should not have
treated Appellant’s petition as a PCRA petition. Appellant incorporates this
argument into his twelfth issue as well. Appellant’s second and fourth issues
assert that the Commonwealth’s decision to charge Appellant with murder
generally was improper; Appellant avers the Commonwealth was required to
charge him with first-degree murder (instead of murder generally) if
Appellant could be convicted for that crime. Appellant attacks his conviction
based on this alleged error by the Commonwealth. These claims also
provide remedies available under the PCRA. See generally Hackett, supra
(explaining appellant’s collateral attack on underlying murder conviction falls
within ambit of PCRA). Moreover, Appellant already litigated these issues in
his first PCRA petition, so Appellant is ineligible for PCRA relief on his second
and fourth appellate issues. See 42 Pa.C.S.A. § 9543(a)(3) (stating that to
be eligible for PCRA relief, petitioner must plead and prove allegation of error
has not been previously litigated). Appellant’s fifth and ninth issues attack
the legality of his sentence, claiming (respectively) that the Commonwealth
failed to notify Appellant of aggravating circumstances in his case; and
imposed an improper mandatory minimum sentence. Thus, these claims fall
under the purview of the PCRA. See Peterkin, supra; Fowler, supra;
Deaner, supra. Finally, Appellant’s tenth and eleventh appellate issues
baldly assert, inter alia, that the judges, district attorneys, and assistant
district attorneys involved with his case violated their respective oaths of
office, conspired to violate Appellant’s due process rights, and impersonated
public officials. Appellant states he discovered these alleged improprieties in
2014. These claims likewise provide remedies available under the PCRA.
See generally 42 Pa.C.S.A. § 9543(a)(2)(i) (explaining PCRA provides relief
where petitioner pleads and proves that conviction or sentence resulted from
violation of Constitution of this Commonwealth or Constitution or laws of
(Footnote Continued Next Page)

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      Further, although challenges to the legality of a conviction and/or

sentence are subject to review within the PCRA, a petition asserting those

claims must still first satisfy the PCRA’s time limits or demonstrate the

application of a statutory timeliness exception.              Fowler, supra at 592.

Here, our Supreme Court denied allowance of appeal from the judgment of

sentence on August 20, 2001. Appellant did not seek further direct review.

Therefore, his judgment of sentence became final on November 18, 2001,

upon expiration of the time to file a petition for writ of certiorari with the

United States Supreme Court. See U.S.Sup.Ct.R. 13 (allowing ninety (90)

days to file petition for writ of certiorari). Appellant filed the current, pro se

serial petition for collateral relief on December 26, 2013, which is patently

untimely. See 42 Pa.C.S.A. § 9545(b)(1).

      In his effort to keep his current petition outside the PCRA, Appellant

did not plead or prove any of the statutory exceptions required to revive an

otherwise untimely PCRA petition.5               See 42 Pa.C.S.A. § 9545(b)(1)(i-iii);


                       _______________________
(Footnote Continued)

United States which, in circumstances of particular case, so undermined
truth-determining process that no reliable adjudication of guilt or innocence
could have taken place).
5
  To the extent Appellant attempts to invoke the “new constitutional right”
exception at 42 Pa.C.S.A. § 9545(b)(1)(iii) (in connection with his ninth
issue on appeal), Appellant’s reliance on Alleyne does not afford relief. In
Alleyne, the United States Supreme Court held that any fact increasing the
mandatory minimum sentence for a crime is considered an element of the
crime to be submitted to the fact-finder and found beyond a reasonable
doubt. See Alleyne, supra. Recently in Commonwealth v. Newman, 99
(Footnote Continued Next Page)

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Gamboa-Taylor, supra.              Thus, Appellant’s petition remains a patently

untimely PCRA petition, and the court properly dismissed it. Accordingly, we

affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2015




                       _______________________
(Footnote Continued)

A.3d 86 (Pa.Super. 2014) (en banc), this Court made clear that Alleyne is
subject to limited retroactivity; in other words, Alleyne is applicable only to
criminal cases still pending on direct review. Id. at 90. Alleyne does
not apply retroactively, however, to cases where the judgment of sentence
has already become final.        Commonwealth v. Miller, 102 A.3d 988
(Pa.Super. 2014) (explaining neither our Supreme Court nor United States
Supreme Court has held that Alleyne applies retroactively, which is fatal to
appellant’s attempt to invoke exception to PCRA’s time-bar).             Here,
Appellant’s judgment of sentence became final on November 18, 2001. The
Supreme Court decided Alleyne on June 17, 2013. Appellant’s judgment of
sentence was already final before Alleyne was decided. Appellant also did
not comply the sixty-day rule. See 42 Pa.C.S.A. § 9545(b)(2); Gamboa-
Taylor, supra.        Moreover, Appellant claims the court imposed the
mandatory minimum sentence under 18 Pa.C.S.A. § 6317 (requiring
imposition of mandatory minimum sentence where defendant committed
drug offense in school zone).         Appellant’s sentence resulted from his
conviction for first-degree murder; the court did not impose a mandatory
minimum sentence under Section 6317. Thus, even if Alleyne applied
retroactively, and Appellant had met the sixty-day rule, Alleyne would not
afford Appellant relief.


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