J-S12028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CALVIN C. LOGAN,

                            Appellant                 No. 1204 EDA 2014


             Appeal from the PCRA Order Entered March 18, 2014,
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0705951-1975


BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED MARCH 11, 2015

       Appellant, Calvin C. Logan, appeals from the order denying his fifth

petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.

§§ 9541-9546. We affirm.

       The PCRA court summarized the procedural history of this case as

follows:

             [Appellant] was found guilty after a jury trial of first
       degree murder, aggravated assault, simple assault, possessing
       an instrument of crime and criminal conspiracy before the
       Honorable Judge John J. McDevitt III.2 On September 28, 1978,
       [Appellant] was sentenced to serve a life sentence for the
       murder conviction and concurrent terms of five to ten years for
       criminal conspiracy and each assault conviction. [Appellant] did
       not immediately appeal his judgment of sentence. After having
       his direct appeal rights reinstated nunc pro tunc, the Superior
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*
    Former Justice specially assigned to the Superior Court.
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     Court affirmed the judgment of sentence in 1988, and the
     Pennsylvania Supreme Court denied allocatur on March 3, 1989.
           2
             The instant matter was administratively assigned to
           this Court for the preparation of an opinion following
           its appointment to the position of Supervising Judge
           of the Criminal Division of the Court of Common
           Pleas of Philadelphia County.

          [Appellant] filed his first Post Conviction Relief Act petition
     pro se on October 23, 1992, and the[n,] after counsel was
     appointed [Appellant] voluntarily withdrew his petition on June
     27, 1996, after a full colloquy before the Honorable Judge
     Genece E. Brinkley.3 [Appellant] filed his second PCRA petition
     on September 6, 1996. The trial court dismissed the petition on
     October 25, 1996. No appeal was taken from this dismissal.
           3
             It is noted that [Appellant] filed his first petition for
           relief pursuant to the Post Conviction Hearing Act
           (PCHA), 42 Pa.C.S.A. 9541 et seq. (repealed and
           replaced by the PCRA for petitions filed on or after
           April 13, 1988). Because the instant petition is not
           [Appellant’s] first, the one-year grace period
           provided in the 1996 amendments to the PCRA “does
           not apply to second or subsequent petitions,
           regardless of when the first petition was filed.”
           Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa.
           Super. 2002), appeal denied, 573 Pa. 703, 827 A.2d
           429 (2003).

            [Appellant] filed his third PCRA petition pro se on October
     8, 1997. After originally sending out a notice of dismissal and a
     final order . . . dismissing his third PCRA petition, the trial court
     vacated its previous order and appointed counsel. The petition
     was dismissed again on July 23, 1999, after counsel filed a
     Finley/Turner4 no-merit letter. After counsel was permitted to
     withdraw, [Appellant] filed an appeal.         The Superior Court
     affirmed the dismissal on June 8, 2001. No further appeal was
     filed.
           4
             Commonwealth v. Turner, 544 A.2d 927 (Pa.
           1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.
           Super. 1988).


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            On June 17, 2003, [Appellant] filed a pro se Writ of Habeas
      Corpus, which was processed as his fourth PCRA petition.
      Counsel was again appointed and ultimately it was dismissed on
      timeliness grounds on October 13, 2006. The Superior Court
      affirmed the dismissal on January 8, 2008, and the Supreme
      Court denied allocatur on July 1, 2008.

            [Appellant] filed his current post conviction petition, on
      November 8, 2010.            After conducting an extensive and
      exhaustive review of the record and applicable case law, this
      Court suggests that the ruling that [Appellant’s] petition for post
      conviction collateral relief was untimely filed should be affirmed.

PCRA Court Opinion, 7/31/14, at 1-2.       The PCRA court denied Appellant’s

petition on March 18, 2014. This pro se appeal followed.

      Appellant presents the following issues for our review, which we set

forth verbatim below:

      I. SHOULD REVIEW BE GRANTED TO DETERMINE IF THE COURT
      OF COMMON PLEAS and PA SUPERIOR COURT DEPRIVE
      APPELLANT HIS DUE PROCESS AND EQUAL PROTECTION
      RIGHTS WHEN FAILING TO ACCEPT APPELLANT’S WRIT OF
      HABEAS CORPUS AND ARBITRARILY TURNED THIS WRIT INTO,
      AND ADJUDICATED AS, A POST CONVICTION RELIEF ACT
      PETITION VIOLATING THE 5th, 8th, 14th AMENDMENTS OF THE
      U.S. CONSTITUTION; and ARTICLE 1, §§1, 9, 11, 13, 15, 20, 25
      OF THE PA CONSTITUTION?

      II. SHOULD REVIEW BE GRANTED TO DETERMINE IF THE
      COMMONWEALTH ERRED BY ALLOWING AN ILLEGAL SENTENCE
      UNDER 18 PA. C.S.A. §1311, AN UNCONSTITUTIONAL STATUTE
      OF THE DEATH PENALTY TO STAND, AND ALLOWING APPELLANT
      TO BE TRIED AND CONVICTED BEFORE ACTUAL PERPETRATOR
      JERRY LOGAN, THE PRINCIPLE, AND WHETHER SUBJECT
      MATTER JURISDICTION AND A SENTENCING TIME LIMITATION
      BE WAIVED AS IT RELATES TO THE HEREIN MATTER VIOLATING
      THE 5th, 8th, 14th AMENDMENTS OF THE U.S. CONSTITUTION;
      and ARTICLE 1, §§1, 9, 13, 15, 20, 25 OF THE PA
      CONSTITUTION?

Appellant’s Brief at 3.

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      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).      The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

      Initially, we must determine whether this matter is properly before us.

We begin by considering whether the PCRA court accurately considered

Appellant’s petition to be a PCRA petition.

      The scope of the PCRA is explicitly defined as follows:

      This subchapter 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. This subchapter is not
      intended to limit the availability of remedies in the trial court or
      on direct appeal from the judgment of sentence, to provide a
      means for raising issues waived in prior proceedings or to
      provide relief from collateral consequences of a criminal
      conviction.

42 Pa.C.S. § 9542 (emphasis added).

      The plain language of the statute above demonstrates that the

Pennsylvania General Assembly intended that claims that could be brought


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under the PCRA must be brought under that Act. Commonwealth v. Hall,

771 A.2d 1232, 1235 (Pa. 2001) (emphasis in original).                 Where a

defendant’s claims “are cognizable under the PCRA, the common law and

statutory remedies now subsumed by the PCRA are not separately available

to the defendant.”    Id. at 1235 (citations omitted).    By its own language,

and by judicial decisions interpreting such language, the PCRA provides the

sole means for obtaining state collateral relief. Commonwealth v. Yarris,

731 A.2d 581, 586 (Pa. 1999) (citations omitted).        Thus, it is well settled

that any collateral petition raising issues with respect to remedies offered

under the PCRA will be considered to be a PCRA petition. Commonwealth

v. Deaner, 779 A.2d 578, 580 (Pa. Super. 2001).

      The question then is whether the particular claim at issue in

Appellant’s petition, i.e., Appellant’s allegation that his sentence of life

imprisonment is unconstitutional and unlawful, is a claim available to him

under the PCRA.      Emergency Petition for Writ of Habeas Corpus, 11/8/10.

We have reiterated that “the PCRA statute is intended as the sole means of

collaterally challenging a sentence.”   Commonwealth v. Concordia, 97

A.3d 366, 372 (Pa. Super. 2014). Indeed, in Commonwealth v. Jackson,

30 A.3d 516 (Pa. Super. 2011), this Court held that a defendant’s motion to

correct an illegal sentence was properly addressed as a PCRA petition, stated

broadly, “[A]ny petition filed after the judgment of sentence becomes final

will be treated as a PCRA petition.” Id. at 521.


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       Because Appellant’s challenge to his sentence is cognizable under the

PCRA, Appellant is precluded from seeking relief pursuant to a writ of habeas

corpus.     Thus, the PCRA court had no authority to entertain the claims

except under the strictures of the PCRA.1

       We      next   address     whether          Appellant     satisfied   the      timeliness

requirements of the PCRA.               The timeliness of a PCRA petition is a

jurisdictional threshold and may not be disregarded in order to reach the

merits    of   the    claims   raised   in     a    PCRA       petition   that   is   untimely.

Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000).                                  Effective

January 16, 1996, the PCRA was amended to require a petitioner to file any

PCRA petition within one year of the date the judgment of sentence becomes

final. 42 Pa.C.S. § 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 at the expiration of time for seeking the review.”                              42 Pa.C.S.
____________________________________________


1
    We observe that Appellant raises in his appellate brief to this Court an
allegation that the trial court lacked subject matter jurisdiction. Appellant’s
Brief at 14-15. This claim was not raised before the PCRA court. Our
Supreme Court has explained that an issue not raised in a PCRA petition
cannot be raised for the first time on appeal.            Commonwealth v.
Santiago, 855 A.2d 682, 691 (Pa. 2004). Accordingly, we must consider
Appellant’s challenge to the trial court’s jurisdiction to be waived.
Furthermore, a claim that a conviction or sentence resulted from a
proceeding in a tribunal without jurisdiction is cognizable under the PCRA.
42 Pa.C.S. § 9543(a)(2)(viii). Therefore, even if Appellant had presented
the issue to the PCRA court, as discussed infra, the PCRA petition would
have been dismissed as untimely filed.



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§ 9545(b)(3). Where a petitioner’s judgment of sentence became final on or

before the effective date of the amendment, a special grace proviso allowed

first PCRA petitions to be filed by January 16, 1997. See Commonwealth

v. Alcorn, 703 A.2d 1054, 1056-1057 (Pa. Super. 1997) (explaining

application of PCRA timeliness proviso).

       However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.2 A petition invoking one of these exceptions must be filed

within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2).         In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline “the petitioner must plead and prove specific
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2
    The exceptions to the timeliness requirement are:

       (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), (ii), and (iii).




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facts that demonstrate his claim was raised within the sixty-day time frame”

under section 9545(b)(2). Carr, 768 A.2d at 1167.

       Our review of the record reflects that Appellant’s judgment of sentence

became final on or about May 2, 1989, sixty days after the Pennsylvania

Supreme Court denied Appellant’s petition for allowance of appeal and the

time for filing a petition for review with the United States Supreme Court

expired.     42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 20.1.3           Accordingly,

Appellant’s judgment of sentence became final prior to the effective date of

the PCRA amendments.           Appellant’s instant petition, filed on November 8,

2010, does not qualify for the grace proviso as it was neither Appellant’s first

PCRA petition, nor was it filed before January 16, 1997. Thus, the instant

PCRA petition is patently untimely.

       As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may be received under any of the three limited

exceptions to the timeliness requirements of the PCRA.               42 Pa.C.S.

§ 9545(b)(1).      The record reflects that Appellant did not specifically raise

any of the timeliness exceptions in his PCRA petition. Consequently, because

the PCRA petition was untimely and no exceptions apply, the PCRA court
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3
   We note that the Rules of the Supreme Court of the United States
pertaining to the time limit for filing a writ of certiorari have changed various
times in relation to both length of time and rule number. Rule 20.1, which
became effective August 1, 1984, and was applicable to this case, required
the filing of a writ of certiorari within sixty days after the Pennsylvania
Supreme Court denied allocatur.



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lacked jurisdiction to address the claims presented and grant relief.    See

Fairiror, 809 A.2d at 398 (holding that PCRA court lacks jurisdiction to hear

untimely petition). Likewise, we lack jurisdiction to reach the merits of the

appeal.   See Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa.

Super. 2002) (holding that Superior Court lacks jurisdiction to reach merits

of appeal from untimely PCRA petition).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2015




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