J-S02039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KENNETH SAXTON

                            Appellant                 No. 925 EDA 2016


                  Appeal from the PCRA Order February 16, 2016
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-1007631-1980


BEFORE: FORD ELLIOTT, P.J.E., STABILE, J., and MOULTON, J.

MEMORANDUM BY MOULTON, J.:                                FILED JUNE 29, 2017

       Kenneth Saxton appeals, pro se, from the February 16, 2016 order

entered in the Philadelphia County Court of Common Pleas dismissing as

untimely his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

       The PCRA court summarized the relevant procedural history of this

matter as follows:

               In 1981, following a non-jury trial, [Saxton] was
            convicted of first-degree murder and possession of an
            instrument of crime.[1] On May 7, 1981, [Saxton] was
            sentenced to life imprisonment on the murder conviction
            and a lesser concurrent term of imprisonment on the
            possession charge.


____________________________________________


       1
           18 Pa.C.S. §§ 2502(a) and 907, respectively.
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             Newly appointed counsel filed an appeal to the Superior
         Court, asserting that trial counsel’s assistance was
         constitutionally ineffective. The Superior Court, by an
         order dated June 29, 1984, remanded the matter to the
         trial court to supplement the record so that the assertions
         of ineffectiveness could be addressed. Upon review,
         despite finding that trial counsel was ineffective, the
         Superior Court determined that the resulting error was
         harmless and therefore affirmed the judgments of
         sentence.2 On October 15, 1987, the Pennsylvania
         Supreme Court affirmed the judgments of sentence,
         concluding     that   counsel   was   not   constitutionally
         ineffective.3
               2
                 Commonwealth v. Saxton, 501 A.2d 293
               (Pa. Super. 1985) [(unpublished mem.)].
               3
                 Commonwealth v. Saxton, 532 A.2d 352
               (Pa. [] 1987).

            [Saxton] has unsuccessfully pursued collateral relief in
         the intervening years following the finality of his
         judgments of sentence. [Saxton]’s current PCRA petition
         was filed pro se on April 14, 2014. Pursuant to
         Pennsylvania Rule of Criminal Procedure 907, [Saxton] was
         served with notice of the court’s intention to dismiss his
         PCRA petition on January 25, 2016. The PCRA court
         dismissed [Saxton]’s petition as untimely on February 16,
         2016. [Saxton] filed the instant notice of appeal to the
         Superior Court on March 15, 2016.

Opinion, 5/16/16, at 1-2 (“PCRA Ct. Op.”) (footnote omitted).

      Saxton’s brief does not contain a statement of questions involved.

However, from the argument section of his brief, we are able to discern the

sole issue he raises before this Court: Whether the PCRA court erred and

abused its discretion when it dismissed Saxton’s petition, styled as a petition

for writ of habeas corpus, as time-barred. See Saxton’s Br. at 6.

      First, we must determine whether the PCRA court properly treated

Saxton’s petition as a PCRA petition.

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           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.

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

(citations and footnote omitted). Because the claim raised in the petition,2

that Saxton was deprived of “conflict-free counsel” because appointed

criminal defense attorneys are agents of the Commonwealth, is cognizable

under the PCRA, see 42 Pa.C.S. § 9543(a)(2)(i), (ii),3 the PCRA court

properly treated Saxton’s writ of habeas corpus as a PCRA petition.




____________________________________________


       2
       In his PCRA petition, Saxton makes three claims that raise the same
substantive issue.
       3
         On appeal, Saxton’s sole argument is “actual innocence.” See
Saxton’s Br. at 8. We note that his only reference to this claim in the PCRA
court was half a sentence at the end of the “Statement of Questions
Involved” included in his PCRA petition, styled as a “Petition for Writ of
Habeas Corpus.” Pet. for Writ of Habeas Corpus, 4/14/14, at 9. We further
note that, if properly raised below, the PCRA court would also have been
required to treat the “actual innocence” claim as arising under the PCRA.
See Commonwealth v. Abu-Jamal, 833 A.2d 719, 728 (Pa. 2003)
(holding that although the term “actual innocence” is not used in section
9543 enumerating claims cognizable under the PCRA, because the PCRA is
meant to provide a means of relief for those convicted of crimes they did not
commit and is meant to be the sole means of obtaining collateral relief, a
claim of “actual innocence” is cognizable under the PCRA rather than in a
writ for habeas corpus).



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         Next, we must determine whether Saxton’s PCRA petition was timely

filed.

         Our standard of review from the denial of PCRA relief “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).

         It is well settled that “the timeliness of a PCRA petition is a

jurisdictional requisite.”   Commonwealth v. Brown, 111 A.3d 171, 175

(Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015).            A PCRA petition

“including a second or subsequent petition, shall be filed within one year of

the date the judgment becomes final.”             42 Pa.C.S. § 9545(b)(1).   A

judgment is 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. § 9545(b)(3).

         The Pennsylvania Supreme Court affirmed Saxton’s judgment of

sentence on October 15, 1987. He did not file a petition for writ of certiorari

with the United States Supreme Court.       Saxton’s current petition, filed on

April 14, 2014, is therefore facially untimely.

         Courts may consider a PCRA petition filed more than one year after a

judgment of sentence became final only if the petitioner alleges and proves

one of the following three statutory exceptions:


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         (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)-(iii); see Brown, 111 A.3d at 175-76.         In

addition, when invoking an exception to the PCRA time bar, the petition

must “be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2).

      The trial court found that Saxton’s “attempt to repackage his

ineffectiveness claims was wholly insufficient to demonstrate timeliness.”

PCRA Ct. op. at 4-5. We agree. Because Saxton failed to allege and prove

one of the exceptions to the one-year time bar, the PCRA court properly

dismissed his PCRA petition as untimely.           See Commonwealth v.

Wharton, 886 A.2d 1120, 1126 (Pa. 2005) (“It is well settled that

allegations of ineffective assistance of counsel will not overcome the

jurisdictional timeliness requirements of the PCRA.”).

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2017




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