J-S27013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ISIDRO F. TEXIDOR, JR.,

                            Appellant                 No. 1354 MDA 2015


                  Appeal from the Order Entered July 15, 2015
               In the Court of Common Pleas of Schuylkill County
              Criminal Division at No(s): CP-54-CR-0000610-2004


BEFORE: SHOGAN and DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                              FILED APRIL 22, 2016

       Appellant, Isidro F. Texidor, Jr., pro se, appeals from the order entered

July 15, 2015, denying his serial post-conviction writ of habeas corpus,

which we treat as an untimely petition filed pursuant to the Post Conviction

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

       A previous panel of this Court summarized the factual and procedural

history of this case as follows:

              After a trial by jury on January 16, 17, and 18, 2006,
              Appellant was found guilty [of one count of robbery,
              three counts of aggravated assault with a deadly
              weapon, various counts of conspiracy, and other
              related crimes. On April 24, 2006, Appellant] was
              sentenced to an aggregate term of imprisonment

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*
    Former Justice specially assigned to the Superior Court.
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          totaling 198 to 396 months in a state correctional
          facility with credit for time served of 96 days . . . .

          The Commonwealth’s evidence at trial established
          that on January 10, 2004[,] at approximately 2:30
          [a.m., C.G., C.P., R.W.], a man named Maurice[,]
          and [C.G.’s] three children[,] ages 4, 8[, and 9,]
          were in [C.G.’s] residence [in Shenandoah,
          Pennsylvania.    C.G. and] Maurice were upstairs
          sleeping, [C.G.’s] three children were asleep in the
          living room, and [C.P. and R.W.] were in the kitchen.
          There was a knock at the door and [C.P.]
          approached the door to be told that “Man” was at the
          door. [C.P.] woke [C.G.] to answer the door. As
          [C.G.] opened the door, three men later identified as
          Nazaniel Flores, Appellant, and David Ortega, Jr. . . .
          pushed their way into her residence.        Appellant
          immediately placed [C.G.] into a headlock, and put a
          gun to her head. [C.G.] and [C.P.] were directed into
          the kitchen and told to sit on the floor. [R.W.] had
          gone upstairs prior to this but was brought
          downstairs by Flores who told him to lie on the floor.
          Flores proceeded to place his foot on the back of
          [R.W.’s] neck. Ortega tied [C.P.’s] hands with duct
          tape and also wanted to duct tape [C.G.’s] hands.
          When [C.G.] refused, Appellant held a gun to her
          head and told her to put her hands out. When
          [C.G.] refused again, Appellant hit her in the head
          with his gun[. At this] point, [C.G.] consented to be
          tied. . . .

          After Appellant and Flores left the room, [C.G., C.P.,
          and R.W.] heard a struggle upstairs, then a gunshot
          and then the scream of one of [C.G.’s] children. The
          bullet from the gunshot lodged itself in the couch
          where one child was sleeping. [C.G.] checked on her
          children, chewed through the duct tape on her hands
          and went upstairs to find Flores rummaging through
          her dresser drawers.     Appellant then came into
          [C.G.’s] bedroom to retrieve Flores after which both
          [Appellant and Flores] departed the residence. . . .

          [O]nce out of the residence, Flores called [C.P.’s] cell
          phone and asked for Maurice. When [C.P.] told

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          Flores that Maurice was not there, Flores stated that
          they were coming back to heat the place up. [C.P.]
          informed Flores that the police were coming.
          Appellant, Flores[,] and Ortega returned to the
          residence as [C.G.] was standing outside waiting for
          them in an attempt to prevent them from returning.
          The three [criminals] parked for a brief time in the
          parking lot and left.

          [Appellant was apprehended, tried before a jury, and
          found guilty of the above-mentioned crimes. After
          Appellant was sentenced,] Appellant filed a timely,
          pro se notice of appeal to [the Superior Court]. On
          July 30, 2007, [the Superior Court] affirmed
          [Appellant’s] judgment of sentence, and our
          Supreme Court denied [Appellant’s] petition for
          allowance of appeal on December 12, 2007.
          Commonwealth v. Texidor, 935 A.2d 24 (Pa.
          Super. 2007) (unpublished memorandum), appeal
          denied, 938 A.2d 1053 [(Pa. 2007)].

          On January 22, 2008, Appellant filed a [timely, pro
          se PCRA petition], counsel was appointed, and an
          evidentiary hearing was [scheduled for] April 30,
          2008. The sole issue raised by Appellant within his
          PCRA petition was a claim of ineffective assistance of
          counsel due to trial counsel’s interference with
          Appellant’s right to testify at trial. At the beginning
          of the evidentiary hearing, Appellant chose to waive
          his right to counsel and proceed pro se.           Both
          Appellant and trial counsel then testified.          By
          memorandum and order entered December 17,
          2008, the PCRA court denied Appellant’s petition.

     Commonwealth v. Texidor, 987 A.2d 826 (Pa. Super. 2009)
     (unpublished memorandum), appeal denied, 991 A.2d 312 (Pa.
     2010) (internal quotations, citations, and corrections omitted).

           On October 15, 2009, we affirmed the order denying
     Appellant’s PCRA petition and, on March 23, 2010, the
     Pennsylvania Supreme Court denied Appellant’s petition for
     allowance of appeal. Id.




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            On September 28, 2011, Appellant filed the current PCRA
     petition, which is Appellant’s second petition filed under the
     PCRA. Within this petition, Appellant claimed that – on May 3,
     2007 – the trial court illegally modified Appellant’s original
     sentence. Appellant pleaded:

           [Appellant] was originally sentenced on April 24,
           2006. On May 3, 2007, more than a year after
           [Appellant] was sentenced, [the trial court] entered
           an [a]mended [o]rder which made Count 11,
           aggravated assault, consecutive to Count 7,
           aggravated assault. This amendment resulted in
           [Appellant] receiving a substantially longer sentence
           [than he was originally given]. . . . The [a]mended
           [o]rder dated May 3, 2007, effectively increased
           [Appellant’s] sentence from 132 [to] 264 [months’]
           imprisonment     to   198    [to]    396    [months’]
           imprisonment.

     Appellant’s Second PCRA Petition, 9/28/11, at 8 and 10.

Commonwealth v. Texidor, 1920 MDA 2011, 63 A.3d 840 (unpublished

memorandum at 1-3) (Pa. Super. filed November 28, 2012).           This Court

affirmed the PCRA court’s dismissal of Appellant’s petition, and our Supreme

Court denied allowance of appeal on March 28, 2013. Id., appeal denied, 63

A.3d 1247 (Pa. 2013).

     On June 16, 2015, Appellant filed the instant matter entitled, “Petition

for Writ of Habeas Corpus Ad Subjiciendum.” In it, Appellant argues that the

original sentencing order entered April 24, 2006, was ambiguous and that he

should be sentenced to the interpretation that gives him a lesser sentence

pursuant to the rule of lenity.    Petition for Writ of Habeas Corpus Ad

Subjiciendum, 6/16/15, at 1-4. The common pleas court treated the petition

as a PCRA petition, and gave notice of its intent to dismiss pursuant to

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Pa.R.Crim.P. 907 on the basis that the petition was untimely and no

exceptions to the time-bar were alleged.

        Appellant filed a response to the notice to dismiss, asserting that he

was challenging the “continued validity of his judgment of sentence.

Specifically, [Appellant] avers that the continued validity of his sentence has

been adversely effected [sic] by ambiguity in both his oral pronouncement of

sentence and in the written sentencing order dated April 24, 2006.”

Petitioner’s response to the court’s notice pursuant to Pa.R.Crim.P. 907,

7/7/15, at 1. Therefore, Appellant argues, his claim is not cognizable under

the PCRA and should be treated as a petition for writ of habeas corpus. Id.

at 2.    As a petition for writ of habeas corpus, the petition would not be

subject to the PCRA’s timeliness requirements. Id.

        The common pleas court dismissed the petition on July 15, 2015.

Appellant timely appealed.      Both Appellant and the common pleas court

complied with Pa.R.A.P. 1925.

        Appellant presents the following issues for our review:

        1.    Did the trial court err in treating Appellant’s Petition for
        Writ of Habeas Corpus ad subjiciendum as a petition pursuant to
        the Post-Conviction Collateral Relief Act?

        2.    Did the trial court abuse its discretion by denying and
        dismissing Appellant’s Petition for Writ of Habeas Corpus ad
        subjiciendum[?]

Appellant’s Brief at 3.




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      In his first issue, Appellant argues that the trial court erred in treating

his petition for writ of habeas corpus as a PCRA petition. Appellant’s Brief at

8.   Appellant maintains that the “challenge to his judgment of sentence,

based upon ambiguity, is not cognizable under the PCRA.”         Id.   Appellant

asserts that he seeks to have the “ambiguity” resulting from the difference

in the original sentencing order and the amended sentencing order resolved

in his favor. Id. at 17. Appellant contends that the “continued validity” of

the original sentence imposed has been “adversely affected” as a result of

this ambiguity.    Id. at 16.     Appellant further details what he is not

asserting, as follows:

      Appellant is not asserting his innocence of the underlying crimes
      or that his sentence was illegal when imposed.              Nor is
      Appellant asserting that his conviction or sentence resulted from
      a violation of the Constitution, ineffective assistance of counsel,
      an unlawfully induced plea, obstruction by government officials
      of his right to appeal, newly discovered evidence, a sentence
      greater than the lawful maximum or a lack of jurisdiction.

Id. (emphasis in original). As such, Appellant posits he “properly resorted

to the writ of habeas corpus as a vehicle for seeking relief.” Id. at 8.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877

A.2d 479, 482 (Pa. Super. 2005)).       The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.


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Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.

2001)).

     As we have explained in considering whether habeas corpus petitions

should be treated as PCRA petitions:

     It is well-settled that the PCRA is intended to be the sole means
     of achieving post-conviction relief.       42 Pa.C.S. § 9542;
     Commonwealth v. Haun, 32 A.3d 697 (Pa. 2011). Unless the
     PCRA could not provide for a potential remedy, the PCRA statute
     subsumes the writ of habeas corpus. Fahy, supra at 223–224;
     Commonwealth v. Chester, 557 Pa. 358, 733 A.2d 1242
     (1999). Issues that are cognizable under the PCRA must be
     raised in a timely PCRA petition and cannot be raised in a habeas
     corpus petition. See Commonwealth v. Peterkin, 554 Pa.
     547, 722 A.2d 638 (1998); see also Commonwealth v.
     Deaner, 779 A.2d 578 (Pa. Super. 2001) (a collateral petition
     that raises an issue that the PCRA statute could remedy is to be
     considered a PCRA 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, 465-466 (Pa. Super. 2013).

     Here, Appellant baldly asserts that his challenge is to the “continued

validity” of his sentence, and is therefore outside the ambit of the PCRA.

Despite this assertion, Appellant fails to allege any circumstances that

arguably have impacted the “continued validity” of his sentence. Appellant

cites several cases in support of his argument in which intervening

circumstances impacted and brought into question the continuing validity of

the appellants’ sentences. However, Appellant’s case is unlike those unique

claims which were deemed to fall outside the PCRA’s statutory scheme. See

Commonwealth v. West, 938 A.2d 1034 (Pa. 2007) (holding that


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substantive due process challenge to continued validity of defendant’s

judgment of sentence after a nine-year delay is not cognizable under the

PCRA); Commonwealth v. Judge, 916 A.2d 511 (Pa. 2007) (holding that

allegation that Canada violated appellant’s rights under the International

Covenant for Civil and Political Rights is not cognizable under the PCRA).

       Instead, Appellant simply asserts that there was “ambiguity” in the

originally imposed sentence. Indeed, as noted by Appellant, the trial court

issued a subsequent order clarifying the “ambiguity,” which amounted to a

typographical error in the original sentence.

       The original sentencing order, dated April 24, 2006, indicates that

Appellant’s “total sentence is 198 months to 396 months.”          Sentencing

Order, 4/24/06, at 1.1 The May 3, 2007 amended order clarified that Count

11, aggravated assault, was to run consecutively to Count 7 instead of Count

1, as erroneously indicated in the original order, thereby accounting for the

total imposed sentence of 198 months to 396 months. Amended Order of

Court, 5/3/07, at 1.           Thus, the amended order simply corrected a

typographical error in the original sentencing order.    Appellant’s sentence

remained unchanged.


____________________________________________


1
  We note that Appellant has acknowledged that the original sentencing
order dated April 24, 2006, indicates a total aggregate sentence computation
of 198 months to 396 months of incarceration. Petition for Writ of Habeas
Corpus Ad Subjiciendum, 6/16/15, at ¶ 5.



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      “It is well-settled in Pennsylvania that a trial court has the inherent,

common-law authority to correct ‘clear clerical errors’ in its orders.”

Commonwealth v. Borrin, 12 A.3d 466, 471 (Pa. Super. 2011). “A trial

court maintains this authority even after the expiration of the 30 day time

limitation set forth in 42 Pa.C.S.A. § 5505 for the modification of orders.”

Id. at 471-472 (citing 42 Pa.C.S. § 5505; Commonwealth v. Cole, 263

A.2d 339 (Pa. 1970)). Here, the trial court did nothing more than clarify the

original sentencing order.

      Although Appellant contends that he is not challenging the jurisdiction

of the trial court, we conclude that is the essence of his claim.    In broad

terms, Appellant is alleging that the trial court did not have authority to

issue the amended sentencing order.        Thus, despite Appellant’s creative

efforts, his claim constitutes a challenge to the propriety of the sentence and

the trial court’s jurisdiction to issue the amended order. As such, his claim

is cognizable under the PCRA.       See 42 Pa.C.S. § 9543(a)(2)(viii) (the

eligibility criteria in Section 9543 of the PCRA include claims asserting that

the proceeding was held in a tribunal without jurisdiction); see also

Commonwealth v. Hughes, 865 A.2d 761, 776 (Pa. 2004) (petitioner’s

challenge to criminal court’s refusal to transfer murder case to juvenile court

was facially cognizable under the PCRA as the propriety of whether the

charges should be prosecuted in the juvenile court or adult court system

implicated jurisdictional concerns). Furthermore, as noted, a trial court has


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the inherent power to correct clerical errors in its orders. Borrin, 12 A.3d at

471.

       Additionally,   we   note   that   Appellant   challenged   the   amended

sentencing order in his second PCRA petition, as referenced above.            In

denying his petition, the PCRA court explained:

             [Appellant’s issue] concerns an amended sentencing Order
       entered by [the PCRA court] on May 3, 2007, correcting a
       typographical error made in the original sentencing Order dated
       April 24, 2006. [Appellant] alleges that the Amended Order
       changed his sentence from 132 months to 264 months [of
       imprisonment], to 198 month[s] to 396 month[s] of
       imprisonment. This is patently untrue. The original sentencing
       Order expressly states at the bottom that [Appellant’s] “Total
       sentence is 198 months to 396 months.” The typographical
       error corrected in the Amended Order did not change
       [Appellant’s] total sentence. Because there was no substantive
       change to [Appellant’s] sentence in the Amended Order, this
       issue is spurious.

PCRA Court Order, 10/7/11, at 1-2. As referenced, this Court affirmed the

PCRA court’s order dismissing Appellant’s second PCRA petition.

       Accordingly, Appellant’s renaming his challenge as a petition for writ

for habeas corpus relief does not suffice to establish that the claim is outside

the ambit of the PCRA and therefore cognizable as a habeas corpus petition.

Accordingly, Appellant’s petition for writ of habeas corpus was properly

treated by the common pleas court as a PCRA petition.

       Given this determination, we address Appellant’s second claim. In it,

Appellant argues that the PCRA court abused its discretion by denying and

dismissing Appellant’s petition. Appellant’s Brief at 17.


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

judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time

requirement is mandatory and jurisdictional in nature, and the court may not

ignore it in order to reach the merits of the petition.    Commonwealth v.

Cintora, 69 A.3d 759, 762 (Pa. Super. 2013) (citing Commonwealth v.

Murray, 753 A.2d 201, 203 (Pa. 2000)). A judgment of sentence “becomes

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).

       However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.2 A petition invoking one of these exceptions must be filed

within sixty days of the date the claim could first have been presented. 42

____________________________________________


2
    The exceptions to the timeliness requirement are:

       (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

(Footnote Continued Next Page)


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Pa.C.S. § 9545(b)(2).          In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Carr, 768 A.2d at 1167.

      Our review of the record reflects that Appellant was sentenced on April

24, 2006. Appellant filed a direct appeal. This Court affirmed Appellant’s

judgment of sentence on July 30, 2007, and the Supreme Court issued an

order denying Appellant’s petition for allowance of appeal on December 12,

2007. Texidor, 981 MDA 2006 (unpublished memorandum), appeal denied,

938 A.2d 1053.

      Accordingly, Appellant’s judgment of sentence became final on March

11, 2008, ninety days after the Pennsylvania Supreme Court denied the

petition for allowance of appeal and time expired for Appellant to file an

appeal with the United States Supreme Court.          42 Pa.C.S. § 9545(b)(3);

U.S. Sup. Ct. R. 13. Therefore, Appellant had to file this PCRA petition by

March 11, 2009, in order for it to be timely. Appellant did not file the instant


                       _______________________
(Footnote Continued)

      (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), (ii), and (iii).




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petition until June 16, 2015.     Thus, Appellant’s instant PCRA petition is

patently untimely.

      As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may nevertheless be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file

his petition within sixty days of the date that the exception could be

asserted. 42 Pa.C.S. § 9545(b)(2). Here, Appellant has failed to assert any

of these exceptions.

      Consequently, because the PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address the claims

presented and grant relief.     See Commonwealth v. Fairiror, 809 A.2d

396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to

hear untimely petition).    Likewise, we lack the authority to address the

merits of any substantive claims raised in the PCRA petition.               See

Commonwealth         v.   Bennett,   930      A.2d   1264,   1267   (Pa.   2007)

(“[J]urisdictional time limits go to a court’s right or competency to adjudicate

a controversy.”).

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/22/2016




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