J-S70035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :       IN THE SUPERIOR COURT OF
                                               :             PENNSYLVANIA
                v.                             :
                                               :
NASSIR WHITE,                                  :
                                               :
                      Appellant                :            No. 23 EDA 2016

                   Appeal from the PCRA Order December 15, 2015
                in the Court of Common Pleas of Philadelphia County,
                 Criminal Division, No(s): CP-51-CR-0013498-2007

BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED NOVEMBER 15, 2016

          Nassir White (“White”), pro se, appeals from the Order denying his

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

(“PCRA”).1 We affirm.

          On July 21, 2008, White pled guilty to third-degree murder, possession

of    a    firearm   prohibited   and   recklessly   endangering   another   person

(“REAP”).2 On that same date, and in accordance with the plea agreement,

the trial court sentenced White to an aggregate prison term of 22½ to 45

years in prison. White filed no direct appeal of his judgment of sentence.

          White filed a timely first PCRA Petition, which the trial court dismissed.

This Court affirmed the Order of the PCRA court. See Commonwealth v.

White, 32 A.3d 842 (Pa. Super. 2011) (unpublished memorandum).



1
    42 Pa.C.S.A. §§ 9541-9546.
2
    See 18 Pa.C.S.A. §§ 2502, 6105, 2705.
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      On April 8, 2014, White filed a pro se Petition for writ of habeas

corpus.   In his Petition, White asserted that the trial court’s written

sentencing Order fails to set forth the statutory authority for White’s

sentence and, therefore, his sentence is illegal. Petition for Writ of Habeas

Corpus at 5, 6 (unnumbered).      On June 17, 2015, the PCRA court issued

Notice of its intention to dismiss White’s PCRA Petition as untimely filed. In

a Memorandum Order and Opinion filed on December 15, 2015, the PCRA

court opined that White’s claim was not cognizable under the PCRA. PCRA

Court Opinion, 12/15/15, at 2. Nevertheless, the PCRA court denied White

relief. White subsequently filed the instant timely appeal.

      White presents the following claims for our review:

      (1) Did the [PCRA c]ourt err in treating [White’s] Writ of Habeas
      Corpus Ad Subjiciendum as a PCRA [Petition], when the issue
      raised is not cognizable under the PCRA statute?

      (2) Did the [PCRA] court err in transferring [White’s] Writ of
      Habeas Corpus Ad Subjiciendum from the Civil Trial Division to
      the Criminal Division, when [the] Writ of Habeas Corpus is civil
      in nature?

      (3) Did the [PCRA c]ourt err when it failed to specify or notify on
      the record[,] or in [its] Sentencing [O]rder/Judgment of
      sente[n]ce a statute or provision authorizing the sentence[,]
      imposed on [White], which would make the Sentencing
      Order/Judgment of sentence invalid and not a binding document,
      which has caused [White’s] unlawful continued restraint?

Brief for Appellant at 3 (issues renumbered).3


3
  In the Argument section of his brief, White addresses these claims
together.



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      White claims that the court of common pleas improperly transferred

his habeas corpus Petition to the criminal division, where it was then

considered as a Petition for relief under the PCRA. Id. at 7. White contends

that this transfer violated his right to due process. Id. White further argues

that he is entitled to habeas corpus relief, as the trial court failed to set forth

the statutory authorization for its sentence in the written sentencing Order,

and unlawfully imposed a “mandatory minimum” sentence. Id. at 7-9.

      Before addressing the merits of White’s underlying claim, we first must

determine whether White’s Petition is cognizable under the PCRA.              See

Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa. 1998) (stating that

both the PCRA and the state habeas corpus statute contemplate that the

PCRA subsumes the writ of habeas corpus in circumstances where the PCRA

provides a remedy for the claim); see also 42 Pa.C.S.A. § 9542 (providing

that claims that can be brought under the PCRA must be brought under that

Act). The PCRA court, relying upon this Court’s decision in Joseph v. Glunt,

96 A.3d 365 (Pa. Super. 2014), concluded that White’s claim was not

cognizable under the PCRA. PCRA Court Opinion, 12/15/15, at 2. The PCRA

court’s reliance upon Glunt is misplaced.

      In Glunt, the defendant claimed that the Department of Corrections

(“DOC”) was without authority to detain him based upon the lack of any

written sentencing order. Glunt, 96 A.3d at 368. This Court explained that

“a claim that a defendant’s sentence is illegal due to the inability of the DOC



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to produce a written sentencing order related to [his] judgment of sentence

constitutes a claim legitimately sounding in habeas corpus.”            Id. (citation

and internal quotation marks omitted).

      Here, White acknowledges the existence of the written sentencing

Order. See Brief for Appellant at 9 (stating that White “produced a copy of

the sente[n]cing order/judgment of sentence”).          In his Petition, White

challenges the lack of statutory authorization for his sentence, and the

sentencing judge’s failure to set forth the statutory authorization for the

sentence on the record or in the sentencing Order.          Id. at 8-9.      White’s

claim implicates the legality of his sentence, a claim that is cognizable under

the PCRA. See Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super.

2014) (stating that “[i]f no statutory authorization exists for a particular

sentence, that sentence is illegal and subject to correction”) (citation

omitted); Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013)

(recognizing that “[the PCRA] provides for an action by which ... persons

serving   illegal   sentences   may   obtain   collateral   relief”);    see    also

Commonwealth v. Hackett, 956 A.2d 978, 986 (Pa. 2008) (explaining that

when considering what types of claims are cognizable under the PCRA, “the

scope of the PCRA eligibility requirements should not be narrowly confined to

its specifically enumerated areas of review.”).    Accordingly, we review the

denial of White’s Petition within the context of the PCRA.




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      Before we can address the merits of White’s claims, we must

determine whether White timely filed his PCRA Petition.        “[A] court may

entertain a challenge to the legality of the sentence[,] so long as the court

has jurisdiction to hear the claim. In the PCRA context, jurisdiction is tied to

the filing of a timely PCRA petition.” Commonwealth v. Berry, 877 A.2d

479, 482 (Pa. Super. 2005) (en banc).        “Although legality of sentence is

always subject to review within the PCRA, claims must still first satisfy the

PCRA’s time limits or one of the exceptions thereto.”      Commonwealth v.

Fowler, 930 A.2d 586, 592 (Pa. Super. 2007).

      A PCRA petition must be filed within one year of the date the judgment

of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). The three statutory

exceptions to the one-year filing requirement are for newly discovered facts,

interference by a government official, and a newly-recognized constitutional

right. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      Here, White’s judgment of sentence was entered on July 21, 2008, and

became final 30 days later, i.e., August 20, 2008, when the time for filing a

direct appeal expired.    See 42 Pa.C.S.A. § 9545(b)(3) (stating that a

judgment of sentence becomes final at the conclusion of direct review,

including discretionary review in this Court or the United States Supreme

Court, or at the expiration of time for seeking such review). White’s present

Petition, filed on April 8, 2014, is facially untimely.    Our review further

discloses that White’s Petition did not assert any statutory exceptions to the



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PCRA’s timeliness requirement.      See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

Because White did not timely file his PCRA Petition, the PCRA court lacked

jurisdiction over White’s Petition. We therefore affirm the Order of the PCRA

court, which denied White’s request for relief.4

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/15/2016




4
  See Commonwealth v. Clouser, 998 A.2d 656, 661, n.3 (Pa. Super.
2010) (recognizing that “[i]t is well-settled that this Court may affirm on any
basis”).


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