J-S10015-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: SHAWN JAMES HAMILTON             :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                    Appellant            :
                                         :
                                         :
                                         :
                                         :
                                         :
                                         :    No. 1357 MDA 2019

                Appeal from the Order Entered July 22, 2019
              In the Court of Common Pleas of Luzerne County
            Criminal Division at No(s): CP-40-MD-0000710-2019


BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.:             FILED: MARCH 30, 2020

      Shawn James Hamilton appeals, pro se, from the order dismissing his

petition for writ of habeas corpus, which the trial court treated as a petition

filed pursuant to the Post Conviction Relief Act (PCRA), see 42 Pa.C.S.A. §§

9541-9546. After careful review, we affirm.

      The PCRA court outlines the history of this case as follows:

      On October 24, 2012, [Hamilton] was charged with three counts
      of criminal homicide, one count of criminal attempt to commit
      criminal homicide and four counts of robbery in connection with a
      shooting which occurred on July 7, 2012 in Plymouth Borough,
      Luzerne County. [Hamilton] was subsequently charged with one
      count of criminal homicide on December 13, 2012 in connection
      with a shooting which occurred on July 6, 2012 in the City of
      Wilkes-Barre, Luzerne County. Trial was scheduled to commence
      on January 6, 2014 in connection with the October 24, 2012
      incident. The Commonwealth was seeking the death penalty.

      On December 20, 2013, [Hamilton] pled guilty to three counts of
      first degree murder and one count of criminal attempt to commit
      criminal homicide on information 3715 of 2012. [Hamilton] also
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       pled guilty to one count of first degree murder on information 99
       of 2013. [Hamilton] waived his right to a pre-sentence
       investigation and proceeded to immediate sentencing. On
       December 20, 2013, [the trial court] imposed four life sentences
       on the first degree murder pleas along with a twenty to forty-year
       sentence on the criminal attempt plea. All sentences were to run
       consecutive.

       Although [Hamilton] was advised of his appellate rights, he filed
       no direct appeal. He initially filed a Motion for [PCRA] Relief on
       April 24, 2014. A Supplement to PCRA Petition was filed on
       September 19, 2014 and a second Motion for [PCRA] Relief was
       filed on January 8, 2015, which were denied by the Pennsylvania
       Superior Court.

       On January 18, 2017, [Hamilton] filed a Petition for Writ of Habeas
       Corpus Ad Subjiciendum, which this Court treated as a Motion for
       [PCRA] Relief. On July 22, 2019, this Court denied and dismissed
       [Hamilton]'s Motion for [PCRA] Relief [].

Trial Court Opinion, at 1-2.1 This timely appeal followed.

       On appeal, Hamilton contends the PCRA court erred by denying his

petition for habeas relief pursuant to the doctrine of res judicata, by not

holding a hearing pursuant to Pa.R.Crim.P. § 108 in violation of the Fourteenth

Amendment, and by failing to issue a notice of intent to dismiss the petition

without a hearing pursuant to Pa.R.Crim.P. § 907.




____________________________________________


1 The certified record consists mainly of the PCRA court’s opinion pursuant to
Pa.R.A.P. 1925(a) and documents filed in a companion civil case. Thus, we
are unable to verify the factual and procedural history contained in the court’s
opinion. Nevertheless, our disposition of the case remains the same as,
although there is no support in the record, the parties do not dispute key
events, filings, or other procedures. We accept these assertions without
additional inquiry.

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      Preliminarily, we address our jurisdiction to entertain this appeal. We

must determine whether the remedy Hamilton is seeking on appeal may be

addressed under habeas corpus review or if a remedy exists under the PCRA.

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). The PCRA incorporates the remedy

of habeas corpus if it offers the petitioner a remedy. See Commonwealth v.

West, 938 A.2d 1034, 1043 (Pa. 2007). Therefore, regardless of how the

petition is styled, “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).

      Here, the trial court found Hamilton’s petition to be an untimely PCRA

petition. We agree. To the best of our ability to decipher Hamilton’s rambling

and frequently incoherent argument in his petition, he essentially seems to

challenge the trial court’s jurisdiction to accept his plea and sentence him.

Jurisdictional questions are squarely within the purview of the PCRA. See 42

Pa.C.S.A. § 9543(a)(2)(viii) (“To be eligible for relief … the petitioner must

plead and prove … [t]hat the conviction or sentence resulted from … a

proceeding in a tribunal without jurisdiction”). Accordingly, Hamilton’s petition

is not germane to habeas relief, and we find that the trial court properly




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addressed his petition under the PCRA. As such, Hamilton’s petition is subject

to the PCRA’s explicit time limitations.

      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence becomes final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
      judgment becomes final at the conclusion of direct review by this
      Court or the United States Supreme Court, or at the expiration of
      the time for seeking such review. The PCRA’s timeliness
      requirements are jurisdictional; therefore, a court may not
      address the merits of the issues raised if the petition was not
      timely filed. The timeliness requirements apply to all PCRA
      petitions, regardless of the nature of the individual claims raised
      therein. The PCRA squarely places upon the petitioner the burden
      of proving an untimely petition fits within one of the three
      exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (internal citations

and footnote omitted).

      As Hamilton sought no further review of his judgment of sentence, it

became final thirty days after sentence was imposed. See Pa.R.A.P. 903.

Accordingly, his petition, filed approximately three years later, is patently

untimely. Given his belief that his petition is not subject to the PCRA, Hamilton

has not asserted that his petition falls within any of the timeliness exceptions

provided in the PCRA. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).         Therefore,

neither the lower court nor this Court has jurisdiction to consider his request

for relief. See 42 Pa.C.S. § 9545(b)(1).

      We acknowledge that the trial court denied Hamilton’s petition on

alternative grounds, i.e. pursuant to the doctrine of res judicata rather than

untimeliness. Nevertheless, we affirm the trial court. “A ruling or decision of

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a lower court will be affirmed if it can be supported on any basis despite the

lower court’s assignment of a wrong reason.” Commonwealth v. Fisher, 870

A.2d 864, 870 n.11 (Pa. 2005).

      Further, we find Hamilton’s first issue would be waived, as he failed to

include his previous PCRA petition in the certified record. It is an appellant’s

responsibility to ensure that the certified record contains all the items

necessary to review his claims. See Commonwealth v. Tucker, 143 A.3d

955, 963 n.3 (Pa. Super. 2016). “When a claim is dependent on materials not

provided   in   the   certified   record,   that   claim   is   considered   waived.”

Commonwealth v. Petroll, 696 A.2d 817, 836 (Pa. Super. 1997) (citation

omitted). Without his prior petition for collateral relief, we could not conduct

a review of his issue challenging the trial court’s conclusion that the issue had

been previously litigated and decided against Hamilton.

      We further recognize the merit to Hamilton’s claim that the trial court

failed to comply with Pa.R.Crim.P. 907 when it dismissed his petition without

issuing notice of intent to dismiss. However, where our independent review

reveals the petition is untimely, failure to issue notice pursuant to Rule 907

does not require reversal. See Commonwealth v. Pursell, 749 A.2d 911,

917 n.7 (Pa. 2000). Since the trial court was without jurisdiction to reach the

merits of the untimely petition, we affirm.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/30/2020




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