J-S03029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

MIKE A. BROWN

                            Appellant                    No. 1156 EDA 2015


                   Appeal from the PCRA Order March 25, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1113631-1999


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                                FILED JANUARY 29, 2016

        Mike A. Brown appeals, pro se, from the order entered March 25,

2015, in the Philadelphia County Court of Common Pleas dismissing his

petition for habeas corpus relief, which the trial court considered to be a

serial, untimely PCRA1 petition.         Brown seeks relief from the judgment of

sentence of an aggregate seven to 22 years’ imprisonment, imposed July 23,

2001, following his jury conviction of sexual assault, statutory sexual

assault, and indecent assault2 for his abuse of a 14-year-old victim.        On

appeal, he contends the PCRA court erred in characterizing his habeas


____________________________________________


1
    Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.
2
    18 Pa.C.S. §§ 3124.1, 3122, and 3126, respectively.
J-S03029-16



corpus petition as an untimely PCRA petition.            For the reasons below, we

affirm on the basis of the PCRA court’s opinion.

       The relevant facts and procedural history underlying this appeal are as

follows.    On January 25, 2001, Brown was convicted of the above-stated

offenses.    On July 23, 2001, he was sentenced to an aggregate term of

seven to 22 years’ imprisonment.               This Court affirmed the judgment of

sentence on direct appeal. Commonwealth v. Brown, 808 A.2d 242 (Pa.

Super. 2002) (unpublished memorandum).

       Thereafter, Brown filed two PCRA petitions, both of which were denied

by the trial court, and affirmed on appeal. See Commonwealth v. Brown,

850     A.2d     5    (Pa.     Super.      2004)     (unpublished   memorandum);

Commonwealth v. Brown, 970 A.2d 464 (Pa. Super. 2009) (unpublished

judgment order), appeal denied, 980 A.2d 604 (Pa. 2009).3

       On January 6, 2011, Brown filed a pro se “Motion to Modify and

Correct Docket,” which the trial court construed to be a PCRA petition, and

promptly dismissed on January 10, 2011. A panel of this Court, once again,

affirmed the PCRA court’s order on appeal, and the Pennsylvania Supreme

Court denied allowance of appeal. See Commonwealth v. Brown, 32 A.3d

260 (Pa. Super. 2011), appeal denied, 34 A.3d 825 (Pa. 2011). Brown then


____________________________________________


3
 A panel of this Court concluded that Brown’s second PCRA petition, filed on
August 30, 2007, was “patently untimely.” Commonwealth v. Brown,
supra, 970 A.2d 464 (unpublished judgment order at 2).



                                           -2-
J-S03029-16



filed a pro se “Motion to Vacate Illegal Sentence and Impose Legal Sentence”

in August of 2012, which the court denied.

       Thereafter, on December 2, 2013, Brown filed a pro se petition for

state habeas corpus review, asserting that the trial court lacked jurisdiction

to try him because it had dismissed the charges two days before trial. See

Petition for State Habeas Corpus Pursuant to 42 PACS § 6501, 12/2/2013, at

14-15. For reasons unclear in the record, the PCRA court did not receive the

petition until February 11, 2015. See PCRA Court Opinion, 3/25/2015, at 1

n.1.   On February 23, 2015, the PCRA court provided Brown with notice,

pursuant to Pa.R.Crim.P. 907, of its intent to dismiss the petition as an

untimely PCRA petition.        Brown filed a pro se objection to the court’s Rule

907 notice, asserting, inter alia, the court erred in characterizing the motion

as a PCRA petition. The PCRA court subsequently dismissed the petition on

March 25, 2015,4 and this timely appeal followed.5




____________________________________________


4
  We note Brown had also filed a pro se motion to dismiss the charges based
on a violation of his speedy trial rights. The PCRA court disposed of that
petition as well, concluding that the “boilerplate motion” was based upon
Pa.R.Crim.P. 600, and, therefore, “specifically intended for people who are
awaiting trial” unlike Brown who had “filed this motion more than a decade
after he was tried, convicted and sentenced.”         PCRA Court Opinion,
3/25/2015, at 2. Brown has not challenged that ruling on appeal.
5
  The PCRA court did not direct Brown to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).




                                           -3-
J-S03029-16



       On appeal, Brown contends the PCRA court erred when it characterized

his petition for habeas corpus as an untimely PCRA petition.          Rather, he

claims he is entitled to habeas relief because he is “solely” challenging his

“illegal incarceration and not his guilt or innocence.”      Brown’s Brief at 12.

Brown argues the trial court lacked jurisdiction to try him because it had

dismissed the charges two days before trial.6 Alternatively, Brown contends

that even if the court properly treated his motion as a PCRA petition, the

court erred in concluding the petition was untimely “in that [his] claim of

double jeopardy is a non-waivable claim … [which] has resulted in a

miscarriage of justice.” Id. at 19.

       When reviewing an order dismissing a PCRA petition, we must

determine whether the ruling of the PCRA court is supported by record

evidence and is free of legal error.           Commonwealth v. Burkett, 5 A.3d

1260, 1267 (Pa. Super. 2010). “Great deference is granted to the findings

of the PCRA court, and these findings will not be disturbed unless they have



____________________________________________


6
  This claim originates from the fact that, after the jury was selected, the
Commonwealth alerted the court that the complainant, who was a
dependent minor, had been sent “back to Oklahoma” without notice. N.T.,
1/22/2001, at 66. Although the parties discussed discharging Brown, the
court, instead, “delayed the start of the trial until January 24, 2001 to give
the Commonwealth time to secure the appearance of the complainant.”
Brown, supra, 32 A.3d 260 (unpublished memorandum at 6), quoting
PCRA Court Order, 1/10/2011, at 1 n.1.




                                           -4-
J-S03029-16



no support in the certified record.”           Commonwealth v. Carter, 21 A.3d

680, 682 (Pa. Super. 2011) (citation omitted).

          Upon our review of the record, the parties’ briefs, and the relevant

statutory and case law, we conclude that the PCRA court properly construed

Brown’s self-styled petition for habeas corpus as a PCRA petition, and

determined the petition was untimely filed. See PCRA Court Opinion, at 3-5

(finding (1) the PCRA “subsumes the remedy of habeas corpus with respect

to remedies offered under the PCRA[;]”7 (2) Brown’s petition raised the

claim that “he is serving an illegal sentence because the trial court allegedly

lacked subject matter jurisdiction[;]”8 Brown’s claim is cognizable under the

PCRA;9 Brown’s petition was not timely filed within one year of the date his

sentence became final; Brown failed to plead or prove an exception to the

timelines provision; and, therefore, the PCRA court had no jurisdiction to

consider the merits of his claim). Accordingly, we rest on the court’s well-

reasoned basis.10
____________________________________________


7
 PCRA Court Opinion, 3/25/2015, at 3, citing Commonwealth v. Peterkin,
722 A.2d 638, 640 (Pa. 1998).
8
    Id.
9
    See 42 Pa.C.S. § 9543(a)(2)(vii).
10
   We note, too, that the claim raised herein appears to be identical to that
raised in his 2011 “Motion to Modify and Correct Docket,” which the court
also construed as a PCRA petition. See Brown, supra, 32 A.3d 260
(unpublished memorandum at 4) (noting Brown’s claim was that the trial
court “lacked jurisdiction to hear [his] case, where the Commonwealth failed
(Footnote Continued Next Page)


                                           -5-
J-S03029-16



      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/29/2016




                       _______________________
(Footnote Continued)

to reinstate charges against him following the court’s grant of nolle prosequi,
rendering his subsequent convictions defective”). Therefore, even if we
were to find the present petition was timely filed, the claim raised therein
has been previously litigated, and he would be precluded from raising it
again. See 42 Pa.C.S. § 9544(a)(3) (claim has been previously litigated if
“it has been raised and decided in a proceeding collaterally attacking the
conviction or sentence.”).



                                            -6-
                                                                                                           Circulated 01/13/2016 01:25 PM




                           IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                                   FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                           CRIMINAL TRIAL DIVISION


                  COMMONWEALTII OF PENNSYLVANIA

                  V.                                                                   CP-51-CR-111363"1~

                  MIKE BROWN                                                                              HAR 2 4 2015

                                                                   OPINION

                  GLAZER.I.                                                                                        March 25, 2015

                  FACTUAL AND PROCEDURAL HISTORY

                         The procedural history and facts of this case have been previously set fo,rth in opinions

                  issued by this court on April 30, 2008 and September 4, 2003, and are incorporated by reference

              herein. See also Commonwealth v. Brown, No. 2332 EDA 2001 (Pa. Super. July 24, 2002) and

              Commonwealth v. Brown, No. 2962 EDA 203 (Pa. Super. March 20 2004).                             .1


                         First, on January 18, 2012, defendant filed a·"Motion _to Dismiss for Violation pf Right to

              Speedy Trial."1 Then, defendant filed the instant Post Conviction Relief Act petition on

              December 2, 2013, but was not received by chambers until February· 11, 2015.2 During that time

              period defendant also filed several prose writings, as well as a response to the Court's 907

              Notice of Intent to Dismiss which was filed on February 23, 2015.

                        For the following reasons, defendant's motion is denied and the petition is dismissed as

              untimely.
              I
                The motion is marked "Received" by the Clerk of Court on January 18, 2012, but is also date-stamped by the "First
              Judicial District of PA Criminal Motion Court" on January 28: 2013. It is unclear why there is a year difference
              between the two stamps, but for the purposes of this opinion, the court will treat the motion as being fil~d on the
              earlier date.                                                                                         ·
              1
                Defendant captioned his petition as "Commonwealth of Pennsylvania, ex rel., Mike A. Brown, Petitioner v,
..            Marirosa Lamas, Superintendent, et. al., Respondents" and titled it "Petition for State Habeas Corpus Pursuant to ~2
              PACS §6501.''. Because the petition shall be analyzed as a PCRA petition, for the reasons stated herein, the court ..
              changed the caption to properly reflect its status.                                                            ·
                                                                                                                        ·i.
                                                                                                                       •I




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                                                                                                   I.




                 DISCUSSION

                           Defendant was sentenced to a term of incarceration on July 23, 2001 for sexual assault;



          II     statutory se~ual assault, and ~decent assault. "The Superior Co1:111 affirmed the judgment of

                 sentence on July 24, 2002, and defendant did not file a petition for allowance of appeal.

                 Therefore, his judgment became final on August 24, 200~. ·

                           On January 18,. 2.012, defendant filed a "Motion to Dismiss for Violati~n.ofRight to.

                 Speedy
                  .
                        Trial."
                        .   .
                                3 The boilerplate motion includes statements such
                                                                             .
                                                                                  as. "[tjhe delay in bringing

                 [ defendant] to trial violates the [Constitution)," and defendant.is being prejudiced because ,;[h)is

                recollection of the events and the witnesses he would call at trial has been dulled. .. ," and the . .
                               '.       .                         '             •              I        .                   .
                                                                                                                        I   .
                                                                                                                                              ·'.
                "lengthy wait has caused him gr~at anxiety ~d has impaired his defe1~se." Defendant' s Mo.tio~

                to Dismiss .. This motion, which i~ based upon .Pa.R.Cr.P. ?00, is specifically intend~:d for

                people who are awaiting trial. It is not applicable to defendant-whofiled this motion more· than
                                                                                                                        .
                                                                                           .                       ..
                a decade after lie wastried, convicted, and sentenced. Therefore, the motion to dismiss is

                denied .
.
.                          Then, rather than seeking relief pursuant to the Post Conviction Relief Act, .de~endant

                titled his petition "Petition for State Habeas Corpus Pursuant-to :42 PACS ~6501 ';:and requested
                                    4
                habeas relief. . The Po~t Conviction
                                           .
                                                     Relief Act states that it "~hall be the sole means of
                                                                                                        ..
                                                                                                           obtaining

                collateral relief and :encompasses allother common la'."' and statutory remedies ... ~9luding

               . habeas corpus and coram nobis." 42 Pa.C.S.A .. § 9542. In C?mmonwealth v. Peter~:n, the

               ---------.
               3
                          --                                          .             .    ...                  -,
                  The motion is marked "Receiv~d" by the Clerk of Court on January l 8,'2012, but is also date-stamped by the. "First
                Judicial District of PA Criminal Motion Court" on January 28; 2013. It is unclear why there is a year'difference
                between the two stamps, .but for the purposes of this opinion, the court will acknowledge the earlie.r date as when it
                was filed.            .                                                                                          ,
                • In his respons~·io the Court's 907 Notice, defendant claims that·his petition is "civil in nature and not criminal"
    . (
               .despite labeling his captions.with "In The Court Of.Common Pleas, Philadelphia County, Pennsylval:\ia Criminal
                Division" and filing the petition with the criminal court. .           · · .                      '            .

                                                                          2
                                                                                                                                         '.




                                                                                                                                                    '.j,'
                                                        _;   ..




                    1     Supreme Court of Pennsylvania explained that, "the PCRA subsumes the remedy of habeas

                    I     corpus with respect to remedies offered under the PCRA and that any petition seeking relief




                I
                          under the PCRA must be filed within one year of final judgment." Commonwealth v. Peterkin,

                          722 A.2d 638, 640 (Pa. 1998). Nevertheless, in extraordinary circumstances, a writ of habeas
                !
                         corpus remains a viable means to obtain post-conviction collateral relief, if the claim raised

                         therein is not cognizable under the PCRA. See Commonwealth v. Judge, 916 A.2d Sljl, 518-21

                         (Pa. 2007) (holding that because the PCRA did not provide a remedy for an allegationthat                            .
                                                                                                                      -
                         Canada violated a petitioner's rights under the International Covenant for Civil and Political

I·
I


                         Rights, .the p~tition may be raised as a writ of habeas corpus).
I
                                  Defendant's petition does not fall into that rare category. Rather, the genesis of
                                                                                                                                I
                         defendant's argument is that he is serving an illegal sentence because the trial court allegedly

                         lacked subject matter jurisdiction. This claim is clearly within the purview of the ~C~, and

      .     /            therefore shall be analyzed accordingly.


            I                    Once defendant's judgment became final on August 24, 2002, he had one ye¥ to .file a

                         post conviction petition.' Therefore, defendant's current petition filed on Dece.mber 2, 2013 is

                         patently untimely unless it properly invokes an exception to the timeliness provision. pie three

                        · exceptions to the one-year limitation pursuant to 42 Pa.C.S.A. §9545 (b)(l)(i)l(iii) are:

                                 (i)    the failure to raise the claim previously was the result of interference by
                                 goverrunent officials with the presentation of the claim in violation of the Co~stitution 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




                        s Because the instant petition is not defendant's first, the one-year grace period provided in the 1996 amendments to
                        the PCRA "docs 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. 70~. 827 ~.2d 429 (2003).

                                                                                  3
     r .
     .l .
                                                                                                                                    :.

     :I
                                                                                                    l   ..                          ,.


                        I
                        I                (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 timeperiod
                                         provided in this section and has been held by that court 'to apply retroactively.

                                        If a petition does not satisfy the timeliness requirements, then the court is without

                    I                                                                                           .
                                jurisdiction to address the merits of a defendant's claims. See Commonwealth v. Robinson, 837
                                                                                                                              .


                   I        . A.2d 1157, 1161 (Pa. 2003). Additionally, in order to be eligible for relief, the petitioner must

                                raise an "allegation of error [that) has not been previously litigated or waived." 42 Pa.C.S.A. ,                .   .

                                §9543(a)(3). An issue isdeemed to havebeen waived "if the petitioner could have raised it but

                                failed to do so before trial, at trial, during unitary review, on·appeal or in a prior state

                                postconviction proceeding." 42 Pa.C.S.A. §9544(b).

                                        In his instant petition, defendant claims that once the trial court granted the
                                                                                                                                             i
              I                 Commonwealth's motion to discharge the defendant without prejudice prior to ;jury being

              /.                sworn in, it lacked subject matter jurisdiction to conduct a trial several days thereafter. However,

                                the petition is entirely devoid of any mention regarding the PCRA's statutory time restrictions, or

                                how this claim satisfies one of the three aforementioned exceptions.6 Issues surrounding subject
                                                                                     •                                      I            ~




                                matter jurisdiction asserted in a PCRA petition must first satisfy the timeliness requirements

                            before the court may address the merits of a defendant's claims -. See Commonwelath v. Taylor,
                                                                                                                        !                l
                                933 A.2d 1035, 1042-43 (Pa. Super. 2007). Because defendant has failed to plead and prove by

 .I                         a preponderance of evidence any of the required time-bar exceptions, defendant' s petition is .



          I
                            deemed untimely.

                                       Moreover, this is not the first time defendant raised this issue. Defendant has filed prior

                            motions that focused on the substantially same claim as asserted here. This court denied those
                                               '                                                                    I

                            motions. See Orders dated August 22, 2012 and January 10, 2011. Since this claim has been

                            previously litigated in various fashions it is not entitled to further examination. The chapter on

                            6
                                Nor has defendant amended his petition to overcome th.is burden.

                                                                                         4
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this issue was closed years ago, and no matter how defendant titles his motion or frames the
  .                                                                                I




argument, such attempts will remain fruitless.                                     l
       As ~ resuit, this court is without jurisdiction to consider.the merit~ proffJed ther~i1~, and

the petition is hereby dismissed.

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                                                              BY1THE COURT:            I
                                                              . ,                      I

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                                                                                                      'i
                                             PROOF OF SERVICE
                                                                                          I.
                                                                               I                          I
         I, Eli Marc. Bensignor, law clerk to the Honorable   Gary S. G~az.er, hereby certify that I served
                                               .                               .
     on March 25, 2015, by first-class mail, postage prepaid, a true and CQ1Tect copy ofithe foregoing

     Order and Opinion upon the following:



    Robin Godfrey, ADA
    District Attorney's Office- PCRA Unit
    3 South Penn Square              ·
    Corner of Juniper and S. Penn Square
    Philadelphia, PA 1-9107-3499         ·
                                                                                                      I
     Natasha Lowe, Esquire
     PCRA Unit                                                                                        1-
  ·. Criminal Justice Center, Room 206                                                        ·i
     130 I Filbert Street                                                                             I



     Philadelphia, PA 19107
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   CERTIFIED MAIL
   Mike Brown, ES7898
                                                                                                      I
   SCI Benner
   301 Institution Drive                                                                          I
                                                                                                  !
                                                                                                  ~
   Bellefonte, PA 16823

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