J-S10040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

THOMAS IANOZI,

                            Appellant                No. 2310 EDA 2015


                  Appeal from the PCRA Order June 10, 2015
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0006433-2006


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

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

        Appellant, Thomas Ianozi, appeals pro se from the order entered June

10, 20151 dismissing his third petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, as untimely.       Although he

admits it is untimely, Appellant claims that his petition should be considered

on its merits because he challenges the legality of his sentence. We affirm

on the basis of the PCRA court opinion.




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Although dated June 9, 2015, a review of the docket indicates that the
order on appeal was filed on June 10, 2015. We have amended the caption
accordingly.
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       In its opinion, the PCRA court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore we have no reason to

restate them at length here.

       For context and convenience of reference, we note briefly that on

February 15, 2008, a jury convicted Appellant of aggravated assault,

unlawful restraint, and rape. Appellant’s convictions stem from an incident

on July 23, 2006 where Appellant “forced [the victim] into his truck by

punching her in the face and stomach and dragging her by her hair. He then

took her back to his apartment, where he forcibly detained her, beat her,

berated her, and raped her both vaginally and anally, during an ordeal that

lasted approximately eight hours.”             (See PCRA Court Opinion, 9/29/15, at

1). The victim finally escaped and called 911 after which Appellant chased

her outside and again began to beat her.              (See id.).   The assault finally

stopped after police responded to the call, observed the assault, and placed

Appellant under arrest.         (See id.).       On May 12, 2008,2 Appellant was

sentenced to not less than twenty-five nor more than fifty years’

imprisonment.      This Court affirmed the judgment of sentence on June 2,

2009 and our Supreme Court denied allowance of appeal on June 23, 2010.




____________________________________________


2
 Although the PCRA court opinion states that Appellant was sentenced on
March 12, 2008, the docket entries reflect that the sentence was imposed on
May 12, 2008.



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See Commonwealth v. Ianozi, 981 A.2d 313 (Pa. Super. 2009)

(unpublished memorandum), appeal denied, 997 A.2d 1175 (Pa. 2010).

        On December 22, 2010, Appellant filed his first PCRA petition.        The

PCRA court appointed counsel, who, after reviewing the case, submitted a

petition to withdraw in accordance with Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. 1998). The PCRA court granted counsel’s petition to

withdraw and dismissed Appellant’s first PCRA petition on September 14,

2011.     On December 8, 2014, Appellant filed a second PCRA petition

claiming that his sentence was illegal pursuant to Alleyne v. United

States, 133 S. Ct. 2151 (2013). The PCRA court dismissed his second PCRA

petition without a hearing on December 19, 2014.

        Appellant filed the instant third PCRA petition, which he refers to as a

petition for writ of habeas corpus, on March 12, 2015.            Pursuant to the

court’s order, the Commonwealth filed its answer and motion to dismiss the

third PCRA petition on April 24, 2015.           The PCRA court issued an order on

May 4, 2015 providing notice to Appellant that it would dismiss his petition

in twenty days.      See Pa.R.Crim.P. 907(1). Appellant did not respond and

the PCRA court dismissed his petition on June 10, 2015. This timely appeal

followed.3
____________________________________________


3
   Although the docket entries reflect that Appellant’s notice of appeal was
filed July 28, 2015, his notice states that it was given to prison authorities
on June 17, 2015. The notice of appeal envelope is post-marked July 7,
2015. Pursuant to the prisoner mailbox rule, an appeal is deemed to have
(Footnote Continued Next Page)


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       Appellant raises five questions on appeal.

       1. According to controlling Pennsylvania Supreme Court case
       law, is a claim related to the non-discretionary elements of an
       illegal sentence, including mandatory sentences, a matter that
       may “never be waived” irrespective of procedural default
       mechanisms?

       2. According to controlling Pennsylvania Supreme Court law,
       Article I. Sec[tion] 14. of the Commonwealth Constitution, and
       42 Pa.C.S.[A.] § 6503[], is the writ of habeas corpus the
       appropriate avenue of redress to remedy illegal detention “if”
       PCRA relief is unavailable?

       3. Is it an abuse of discretion when the trial court imposes a
       sentence contrary to relevant statute and controlling
       Pennsylvania Supreme Court law?

       4.   In 2005, was Schiffler[4] the controlling law of the
       Pennsylvania Supreme Court, and, did not the Superior Court in
       Leverette[5], subsequently admonish the Montgomery County
       Court of Common Pleas to “cease” imposing third-strike
       sentences without first sentencing an offender to a second-strike
       mandatory sentence?

       5. Is the state judicial branch possessed of an “overriding
       obligation to serve the cause of justice” and correct a manifest
       injustice irrespective of any legislatively created procedural
       default mechanism[s]?

(Appellant’s   Brief,     at   iv)   (unnecessary   capitalization   and   underlining

omitted).

                       _______________________
(Footnote Continued)

been filed on the date that the appellant deposits the appeal with prison
authorities and/or places it in the prison mailbox. See Commonwealth v.
Jones, 700 A.2d 423, 426 (Pa. 1997). Therefore, pursuant to the prisoner
mailbox rule, we deem Appellant’s notice of appeal timely.
4
    Commonwealth v. Schiffler, 879 A.2d 185 (Pa. 2005).
5
    Commonwealth v. Leverette, 911 A.2d 998, 1004 (Pa. Super. 2006).



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            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 record. We will not disturb a PCRA court’s
      ruling if it is supported by evidence of record and is free of legal
      error. This Court may affirm a PCRA court’s decision on any
      grounds if the record supports it. We grant great deference to
      the factual findings of the PCRA court and will not disturb those
      findings unless they have no support in the record. However, we
      afford no such deference to its legal conclusions. Further, where
      the petitioner raises questions of law, our standard of review is
      de novo and our scope of review is plenary.

Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super. 2012), appeal

denied, 64 A.3d 631 (Pa. 2013) (citations omitted).

      It is well-settled that the PCRA is intended to be the sole means
      of achieving post-conviction relief. Unless the PCRA could not
      provide for a potential remedy, the PCRA statute subsumes the
      writ of habeas corpus. Issues that are cognizable under the
      PCRA must be raised in a timely PCRA petition and cannot be
      raised in a habeas corpus petition.        Phrased differently, a
      defendant cannot escape the PCRA time-bar by titling his
      petition or motion as a writ of habeas corpus.

Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013)

(citations and footnote omitted). Additionally, as the PCRA court explained

in its opinion, “[a]lthough 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.” (PCRA Ct. Op., at 4) (quoting Commonwealth

v. Fahy, 737 A.2d 214, 223 (Pa. 1999)).

      Here, after a thorough review of the record, the briefs of the parties,

the applicable law, and the well-reasoned opinion of the PCRA court we

conclude that the PCRA court properly dismissed Appellant’s third PCRA



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petition as untimely. (See PCRA Ct. Op., at 3-5) (concluding that: (1) PCRA

court properly found Appellant’s petition facially untimely because it was not

filed within one year of when Appellant’s judgment of sentence became final

on September 23, 2010; (2) PCRA court properly found that Appellant did

not plead that any one of enumerated statutory exceptions to timeliness

requirement applied, moreover none of those three exceptions to PCRA

time-bar would apply to his petition; and (3) PCRA court properly treated

Appellant’s petition for writ of habeas corpus as PCRA petition). Accordingly,

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

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/29/2016




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