J-S57005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                                :         PENNSYLVANIA
                                                :
                  v.                            :
                                                :
                                                :
    DANA EVERETT YOUNG                          :
                                                :
                             Appellant          :    No. 1119 EDA 2018

                   Appeal from the PCRA Order March 22, 2018
                 In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0000560-1983,
                                         CP-39-CR-0000561-1983,
                                         CP-39-CR-0000614-1983


BEFORE:      PANELLA, J., PLATT, J., and STRASSBURGER, J.

MEMORANDUM BY PANELLA, J.                             FILED DECEMBER 07, 2018

        Dana Young appeals, pro se, from the order dismissing his petition for

writ of habeas corpus as an untimely Post Conviction Relief Act (PCRA)

petition. Young argues his imprisonment is illegal due to: (1) Commonwealth

references to photographic arrays at trial; (2) improper joinder of the trials on

his    charges;        (3)    the   Commonwealth’s   allegedly   improper   ex   parte

communication with a witness; (4) the presence of an allegedly unqualified

juror on his jury; and (4) his appellate counsel constructively abandoning him

on direct appeal. We conclude the court properly treated Young’s petition as




____________________________________________


   Retired Senior Judge assigned to the Superior Court.
J-S57005-18


a PCRA petition. Additionally, the court properly found no exception to the

PCRA’s time-bar applied. We therefore affirm.

      Way back in 1983, a jury convicted Young of multiple crimes arising

from separate knifepoint sexual assaults of two women. The court sentenced

him to an aggregate term of imprisonment of twenty-one to forty-two years.

      In his direct appeal, Young alleged his trial counsel was ineffective for

failing to object to the joinder of his trials. This Court determined the appeal

was actually a petition pursuant to the Post Conviction Hearing Act (PCHA),

the predecessor to the PCRA. We therefore remanded the appeal to the trial

court for further proceedings. The PCHA court found trial counsel was not

ineffective, and dismissed the petition.

      Young sought allowance to file an appeal nunc pro tunc. The petition

was ultimately denied. Young appealed the denial, but subsequently withdrew

the appeal.

      In the intervening years, Young has filed no less than seven PCRA

petitions. The latest was dismissed as untimely in 2009. Perhaps sensing a

theme in the repeated dismissals of his PCRA petitions, Young switched gears.

He has since filed three pro se motions for habeas corpus relief. His first and

second habeas corpus motions were treated as PCRA petitions and dismissed

as untimely. See Commonwealth v. Young, No. 1668 EDA 2016 (Pa. Super.

filed April 13, 2017) (unpublished memorandum).




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      This appeal concerns his third motion for habeas corpus relief, filed

December 19, 2017. The PCRA court once again treated the motion as a PCRA

petition, and finding it untimely, dismissed it. This appeal followed.

      Young contends the court improperly treated his petition as a PCRA

petition. If “a defendant’s post-conviction claims are cognizable under the

PCRA, the common law and statutory remedies now subsumed by the PCRA

are not separately available to the defendant.” Commonwealth v. Hall, 771

A.2d 1232, 1235 (Pa. 2001) (citations omitted). It is well settled that the PCRA

subsumes the remedy of habeas corpus when the PCRA offers a remedy. See

Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007). “[A] defendant

cannot escape the PCRA time-bar by titling his motion as a writ of habeas

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

(footnote omitted). And the PCRA offers a remedy to prisoners who claim they

are wrongly convicted. See Commonwealth v. Peterkin, 722 A.2d 638, 640

(Pa. 1998). All of Young’s substantive claims challenge the propriety of the

truth-determining process supporting his conviction. See Appellant’s Reply

Brief, at 1 (“He is raising a challenge to his criminal proceedings as unfair in

violation of due process.”) Thus, the court properly treated his petition as a

PCRA petition.

      The court found Young’s petition untimely. Generally, the PCRA grants

jurisdiction to hear a collateral attack on a conviction only if a petition is filed

in   the   year   after   the   judgment   of   sentence   becomes     final.   See


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Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012). The judgment of

sentence is final when the petitioner’s direct appeal rights have been

exhausted. See id., at 17. After the expiration of the one-year period, a

petitioner must plead and prove one of three enumerated exceptions to the

time-bar to establish jurisdiction under the PCRA. See id.

        A panel of this Court found Young’s eighth PCRA petition, styled as his

second motion for habeas corpus relief, filed February 8, 2016, untimely. See

Young, No. 1668 EDA 2016, at 6. Thus, unless Young can establish an

exception to the timeliness requirement, the court had no jurisdiction to

entertain his petition.

        Young only presents one possible argument that his petition is timely

under the PCRA: that all prior counsel were ineffective. However, ineffective

assistance of prior counsel, by itself, does not qualify as an exception to the

PCRA’s time-bar. See Commonwealth v. Gamboa-Taylor, 753 A.2d 780,

785 (Pa. 2000). Thus, the PCRA court properly dismissed Young’s motion.

        Order affirmed.

        Judge Strassburger joins the memorandum.

        Judge Platt did not participate in the consideration or decision of this

case.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/7/18




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