J-S65024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

FREDDIE MOULTRIE,

                          Appellant                  No. 176 EDA 2014


               Appeal from the PCRA Order of December 16, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0300071-2002
                            CP-51-CR-0300081-2002


BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                  FILED NOVEMBER 18, 2014

      Appellant, Freddie Moultrie, appeals from the order entered on

December 16, 2013, dismissing his pro se petition filed pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The PCRA court set forth the facts and procedural history of this case

as follows:
            On July 16, 2002, [Appellant] appeared before the
        Honorable Carolyn Engel Temin and pled guilty to two
        counts of robbery; two counts of possessing an instrument
        of crime (“PIC”); and one count of criminal conspiracy.
        Evidence adduced at the plea [hearing] established that on
        June 8, 2001, [Appellant] robbed a CVS store.           He
        demanded cash from the store clerk at [gunpoint]; the clerk
        complied.   On June 15, 2001, [Appellant] robbed the
        assistant manager of the ABC Auto Parts store, using a
        handgun. [Appellant] threatened to shoot the assistant
        manager and demanded money from the cash register.
        [Appellant] received $800[.00] in cash, and fled in a
        getaway car. On September 26, 2002, the [trial] court
        sentenced [Appellant] to consecutive terms of eight to

*Retired Senior Judge assigned to the Superior Court.
J-S65024-14


        twenty years’ imprisonment for both robbery counts, and a
        term of twenty years of probation for one count of PIC. No
        further sentence was imposed on the remaining charges.

             [Appellant] filed a timely appeal of the judgment of
        sentence and counsel was appointed to represent him.
        Appellate counsel, however, failed to file a brief and [this
        Court] dismissed the appeal without prejudice. [Appellant]
        then filed a timely PCRA petition for the reinstatement of his
        appellate rights on November 7, 2003. After an amended
        petition was filed with the assistance of counsel, the PCRA
        court granted [Appellant] relief and allowed him to appeal
        the judgment of sentence nunc pro tunc. [This Court]
        affirmed the judgment of sentence on March 23, 2006.

            [Appellant] did not seek relief with the Pennsylvania
        Supreme Court, and, consequently the judgment of
        sentence became final on April 22, 2006. On April 23,
        2013, [Appellant] filed a pro se “petition for writ of habeas
        corpus.” PCRA counsel was appointed on June 18, 2013.
        PCRA counsel filed a detailed and thorough [] no-merit
        letter [pursuant to Commonwealth v. Finley, 550 A.2d
        213 (Pa. Super. 1988)] on September 23, 2013. Counsel’s
        letter indicated that although [Appellant] may have a claim
        of arguable merit, that claim was jurisdictionally time-
        barred, and no exception applied. After careful review of
        counsel’s Finley letter and an independent review of the
        entire record, [PCRA counsel was permitted to withdraw,
        and Appellant] was given notice on October 9, 2013, of [the
        PCRA] court’s intention to dismiss the petition pursuant to
        Pa.R.Crim.P. 907. [Appellant] filed a timely pro se response
        to the Rule 907 notice.         [The PCRA] court carefully
        reviewed [Appellant’s] response, but did not discern the
        existence of any exception that would grant [it] jurisdiction
        under the PCRA. As such, [Appellant’s] PCRA petition was
        dismissed by order [] on December 17, 2013. [Appellant]
        then filed a timely [pro se] appeal.

PCRA Court Opinion, 4/23/2014, at 1-2 (footnotes omitted).

     On appeal, Appellant presents the following issues pro se:

        1. Did the PCRA court below abuse its discretion by
           characterizing Appellant’s writ of habeas corpus as a

                                    -2-
J-S65024-14


            PCRA petition and denying relief based upon the PCRA’s
            one-year jurisdictional timing requirement?

         2. Did the court below abuse its discretion by failing to
            correct Appellant’s illegal sentence, a claim that cannot
            be waived?

         3. Did the lower court or the District Attorney’s Office
            willfully destroy Appellant’s guilty plea colloquy and
            sentencing hearing transcripts to evade addressing a
            meritorious claim, that appointed counsel so much as
            conceded in his Finley letter?

Appellant’s Brief at 4 (numbered and rephrased for clarity and ease of

discussion).

      In his first issue presented, Appellant claims that the trial court erred

in treating his writ of habeas corpus as a petition under the PCRA. Id. at 9-

10. He argues that his sentence was “an act of fraud” by the court because

his sentence for PIC is illegal as it exceeds the statutory maximum for that

crime.   Id. at 9.     Appellant asserts that the trial court had the inherent

power to correct his illegal sentence. Id. at 9-10.

      This Court has recently determined:

         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, 465-466 (Pa. Super. 2013)

(citations omitted).



                                      -3-
J-S65024-14



      A habeas corpus motion challenging a sentence as exceeding the

statutory maximum allowable must be treated as a PCRA petition.            Id. at

468; see also 42 Pa.C.S.A. § 9542 (The PCRA “provides for an action by

which persons convicted of crimes they did not commit and persons serving

illegal sentences may obtain collateral relief.”). Here, Appellant is collaterally

challenging his sentence imposed for PIC as illegal. Hence, despite titling his

motion as a writ of habeas corpus, the trial court properly treated it as PCRA

petition. Accordingly, Appellant’s first issue is without merit.

      Next,   we   examine    Appellant’s   remaining    contentions    together.

Appellant claims that the trial court erred by dismissing his petition because

illegality of sentence claims cannot be waived. Appellant’s Brief at 13. He

maintains that the trial court was ethically obligated, and legally bound, to

correct the sentence. Id. at 14. He claims that the trial court should reach

the merits of his sentencing claim because appointed counsel conceded it

was potentially meritorious. Id. at 15. Finally, Appellant contends that the

notes of testimony from his 2002 sentencing hearing were willfully destroyed

by the Commonwealth and that such a fact was previously unknown to him,

thus, qualifying as an exception to the PCRA’s one-year jurisdictional time-

bar. Id. at 16.

      Our review of a PCRA court's decision is limited to examining whether

the PCRA court's findings of fact are supported by the record, and whether

its conclusions of law are free from legal error.          Commonwealth v.

Johnson, 51 A.3d 237, 242-243 (Pa. Super. 2012) (citation and quotation

                                      -4-
J-S65024-14



omitted). Claims challenging the legality of sentence are subject to review

within   the     PCRA,   but   must   first    satisfy   the   PCRA's   time    limits.

Commonwealth v. Jackson, 30 A.3d 516, 522 (Pa. Super. 2011).

       “Because the PCRA time limitations implicate our jurisdiction and may

not be altered or disregarded in order to address the merits of a petition, we

must     start   by   examining    the    timeliness     of    Appellant's   petition.”

Commonwealth v. Davis, 86 A.3d 883, 887 (Pa. Super. 2014) (citations

omitted). Under the PCRA, “[a]ny petition under this subchapter, including a

second or subsequent petition, shall be filed within one year of the date the

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

       In the case sub judice, this Court affirmed Appellant’s judgment of

sentence on March 23, 2006. Appellant did not appeal our determination to

the Pennsylvania Supreme Court. Thus, his judgment of sentence became

final on April 22, 2006, thirty days after this Court affirmed his judgment of

sentence and the time for filing a petition for allowance of appeal with the

Pennsylvania Supreme Court expired.             See 42 Pa.C.S.A. § 9545(b)(3);

Pa.R.A.P. 1113. As such, Appellant’s PCRA petition filed in April 2013 was

patently untimely.

       There are three exceptions to the PCRA’s one-year timing requirement.

To invoke one of the exceptions, the PCRA petition must allege, and the

petitioner must prove, that:

               (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

                                         -5-
J-S65024-14


              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.A. § 9545(b)(1)(i)-(iii).            “[E]xceptions to the time bar must be

pled in the PCRA petition, and may not be raised for the first time on

appeal.”     Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super.

2007); see also Pa.R.A.P. 302(a).

       Here, Appellant did not plead or prove an exception to the PCRA’s one-

year time timing requirement in his PCRA petition.              For the first time on

appeal, Appellant argues that the transcripts from his sentencing hearing

were willfully destroyed and this “fact” was previously unknown to him.          We

simply lack jurisdiction to review any claim Appellant raises for the first time

on appeal.1 Burton, 936 A.2d at 525.
____________________________________________


1
    Even if Appellant preserved this claim before the PCRA court, we would
conclude that he did not properly invoke the timeliness exception set forth at
42 Pa.C.S.A. § 9545(b)(1)(ii). The thrust of Appellant’s claim alleges that
the sentencing court imposed an illegal sentence for Appellant’s PIC
conviction because it ordered him to serve a sentence that exceeded the
statutory maximum. This admittedly meritorious claim involved a straight
forward question of law that turns exclusively upon the provisions of the trial
court sentencing order and the statutorily allowable punishment applicable
to a PIC conviction. Appellant has not explained, and in our view cannot
explain, how the existence or destruction of the transcript of his sentencing
(Footnote Continued Next Page)


                                           -6-
J-S65024-14



      In sum, the trial court properly treated Appellant’s illegality of

sentence issue under the parameters of the PCRA. Appellant presented the

claim in an untimely manner as mandated under the PCRA.             We lack

jurisdiction to address Appellant’s belated invocation of an exception to the

PCRA. For all of the foregoing reasons, neither the PCRA court nor this Court

has jurisdiction to reach the merits of Appellant’s underlying contention.

Accordingly, the PCRA court properly dismissed Appellant’s petition as

untimely.

      Order affirmed.

    Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/18/2014




                       _______________________
(Footnote Continued)

hearing is relevant to proving his challenge to the legality of his PIC
sentence. Because Appellant cannot establish that his sentencing claim is
predicated upon any allegedly unknown or unknowable fact, he is not
entitled to relief.



                                            -7-
