J-S47028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

JOHN A. KEYS

                          Appellant                   No. 3587 EDA 2016


                Appeal from the PCRA Order October 14, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-1000371-2005


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

MEMORANDUM BY MOULTON, J.:                       FILED DECEMBER 05, 2017

     John A. Keys appeals from the October 14, 2016 order entered in the

Philadelphia County Court of Common Pleas dismissing as untimely his petition

filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46,

and denying his petition for writ of habeas corpus. We affirm.

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

which we adopt and incorporate herein. Opinion, 2/7/17, at 1-3 (“1925(a)

Op.”).

     Keys raises the following issues on appeal:

         A. Whether the trial court abused its discretion in dismissing
         [Keys’] Petition for Writ of Habeas Corpus since he is
         confined absent a Sentencing Order required by 42
         Pa.C.S.A. § 9764(a)(3)?

         B. Whether the trial court erred by denying [Keys’] request
         for habeas relief stating that he is to receive time credit for
J-S47028-17


         the time he spent in custody prior to the time he was
         sentenced and the Pennsylvania Department of Corrections
         is to correct the prison record accordingly?

Keys’ Br. at 3.

      Our standard of review from the denial of post-conviction 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).

      Further, this Court reviews a trial court’s denial of a petition for writ of

habeas corpus for an abuse of discretion. Rivera v. Pa. Dep’t of Corr., 837

A.2d 525, 528 (Pa.Super. 2003).

      The PCRA court found as follows: (1) Keys’ claim that the trial court

erred in calculating his credit for time served is cognizable under the PCRA;

Keys’ PCRA petition was untimely; and Keys failed to establish any time-bar

exception; and (2) Keys’ claim for habeas relief, based on his assertion that

the Department of Corrections lacked the legal authority for his continued

detention due to the lack of a written sentencing order, was meritless because

the original sentencing order is in the case file and the sentence was accurately

reflected on the docket by the Clerk of the Court of Common Pleas.           See

1925(a) Op. at 3-6. After review of the record, the parties’ briefs, and the




                                      -2-
J-S47028-17



relevant law, we affirm on the basis of the well-reasoned opinion of the

Honorable Leon W. Tucker, which we adopt and incorporate herein.1

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/5/2017




____________________________________________


       1To the extent Keys claims that the Department of Corrections erred in
calculating his sentence, the “appropriate vehicle for redress would be an
original action in the Commonwealth Court challenging the [Department’s]
computation.” Commonwealth v. Heredia, 97 A.3d 392, 395 (Pa.Super.
2014) (quoting Commonwealth v. Perry, 563 A.2d 511, 512-13 (1989)).

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                          COURT OF COMMON PLEAS OF PHILADELPIDA COUNTY
                             FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                     CRIMINAL TRIAL DIVISION


              COMMONWEALTH OF PENNSYLVANIA

                    VS.

          JOHN KEYS                                                                CP-51-CR-1000371-2005
                                                                                   3587 EDA 2016

                                                     OPINION

          LEON W. TUCKER, J.

                  This appeal comes before. the Superior Court following the dismissal of a Post Conviction

          Relief Act ("PCRA")1 petition filed on April J, 2014. On October 14, 2016, the lower court

          dismissed the PCRA petition and denied habeas corpus relief for the reasons setforth below.

               I. PROCEDURAL HISTORY

                  On April27, 2007, following a jury trial presided over by the Honorable Albert J. Snite,

          John Keyes (hereinafter referred to as "Petitioner") was convicted of robbery and possessing an

          instrument of crime, On June 14, 2007, Petitioner was sentenced to twenty-five to fifty years'

          imprisonment for the robbery conviction and a concurrent term of probation for the remaining

          charge.2 Following a direct appeal, Petitioner's judgment of sentence was affirmed by the

          Superior Court on April 22, 2009.3 The Pennsylvania Supreme Court denied allocatur on
                                                               CP-51-CR-1000371-200� comm, v. Keys, John
          October 20, 2009'.4                                                   opuuon




                                                                    \\I\ II1111\ I\ III\\\ I I\ Ill
                                                                            7899437891

         1
          ·42 Pa. Cons. Stat. §§ 9541-9546;
         2
           Petitioner was sentenced pursuant to the "third strike'' mandatory minimum provision, 42               Pa.
         Cons. Stat. § 9714.
         3 Commonwealth v. Keys, 974 A.2d 1185
                                                  (Pa, Super. 2009) (unpublished memorandum).
         4
           Commonwealthv. Keys; 982 A.2d 509 (Pa. 2009).




-----····---·---·-··-------- · -·            .....
       On January 22, 2010, Petitioner timely filed his first pro se PCRA petition. Counsel was

appointed and subsequently filed a Turner/Finley no merit letter.5 On June 8, 2011, the PCRA

court issued an order denying the petition and permitted counsel to withdraw. On January 24,

2012, the Superior Court dismissed the associated appeal for failure to file a brief.6

       On April 3, 2014, Petitioner filed the instant "habeas corpus" co11ateral petition.

Petitioner submitted several supplemental filings seeking both habeas corpus and PCRA relief.

. Pursuant to Pennsylvania Rule of Criminal Procedure 907, Petitioner was served notice of the

PCRA court's intention to dismiss his petition on July 12, 2016. Petitioner submitted a response

to the Rule 907 notice on August 3, 2016. On October 14, 2016, the PCRA court dismissed his

petition as untimely and denied habeas corpus relief.lOn November 8, 2016, the instant notice of

appeal was timely filed to the Superior Court.

    II. FACTS

       The trial court summarized the evidence adduced at trial as follows:

           On December 24, 2004, at approximately 4:49 p.m., Samantha Bow[i]e was working
           as a cashier at a Dollar Tree located in Penrose Plaza. Appellant walked into the
           Dollar Tree with a band-aid on the side of his face and leaves stuck to the back of his
           hat He walked down one of the aisles and eventually got in line al Ms. Bow[i]e's
           cash register. Ms. Bow[i]e noticed Appellant was holding a soda, a note, and a brown
           bag. Appellant placed the note and the bag on the counter in front of Ms. Bow[i]e's
           cash register. The note said that there was a bomb in the bag and to give him
           [(Appellant)] the money. Ms. Bow[i]e also recalled that Appellant started to show her
           something that looked .Iike the barrel of a gun in his jacket sleeve. Ms. Bow[i]e said
           that she attempted to stall Appellant, and he told her not to "play with him" and to


5
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en bane).
6 During the pendency of the
                               appeal, Petitioner prematurely filed a second PCRA petition on
January 9, 2012. On March 9, 2012, the PCRA court issued an order dismissing the PCRA
petition.
7
  The Honorable Leon W. Tucker issued the order and opinion in this matter in his capacity as
Supervising Judge of the Criminal Section of the Court of Common Pleas of Philadelphia - Trial
Division as of March 7, 2016, as the trial judge is no longer sitting.


                                                 2
                            "[jjust give me the money, or I'll kill you." Ms. Bow[i]e grabbed stacks of money out
                            of the register and handed it to Appellant. He then ran out of the store.

               Trial Court Opinion, 6/13/08 at4.

                   HI. DISCUSSION

                   A. Petitioner's habeas corpus petition was reviewed pursuant to the dictates of the
                         PCRA.

                         With the exception of Petitioner's illegal-detention claim, Petitioner's instant submissions

               seeking habeas corpus relief fell within the ambit of the PCRA because they raised a claim

               potentially remediable under it. As iterated by the Superior Court,

                         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 notprovide for a potential remedy, the PCRA statute subsumes
                         the writ of habeas corpus. Fahy, supra at 223-224; Commonwealth v. Chester, 733 A.2d
                          1242 (Pa. 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, 722 A.2d 638 (Pa. 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, 465-66 (Pa. Super. 2013).

                         Here, Petitioner's challenge to the trial court's failure to award time credit implicated the

                legality of his sentence and was therefore cognizable under the PCRA. See Commonwealth v.

               Beck, 848 A.2d 987, 989 (Pa. Super. 2004); see also 42 Pa. Cons. Stat. § 9542 (''This subcha.pter

                provides for an action by which persons . . . serving illegal sentences may obtain collateral

                relief."). Thus, this court was constrained to review his claim pursuant to thePCRA'sdictates.

                   B. Petitioner's current petition was manifestly untimely under the PCRA.

                         Petitioner's petition was facially untimely under the PCRA. As a prefatory matter, the

                timeliness of a PCRA petition is a jurisdictional requisite. Commonwealth v. Robinson, 12 A.3d

                477 (Pa. Super. 2011). A PCRA petition, including a second or subsequent petition, shall be filed


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····--·--·--····-··---                                                        ·---------OOMHo _
within one year of the date the underlying judgment becomes final. 42 Pa. Cons. Stat. §

9545(b)(l). A judgment is deemed 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 oftime for seeking the review." Id. § 9545(b)(3).

        Petitioner's judgment of sentence became final for purposes of the PCRA on April 18,

2009, ninety days after the Pennsylvania Supreme Court denied allowance of appeal and the time

for filing a petition for writ of certiorari in the United States Supreme Court expired. See id.;

U.S. Sup. Ct.R. 13 (effective January 1, 1990). His current petition, filed on April 3, 2014, was

therefore untimely by approximately four years. See 42 Pa. Cons. Stat. § 9545(b)(l).

    C. Petitioner was not eligible for a limited timeliness exception under 42 Pa. Cons. Stat.
       § 9545 (b)(1)(i)-(iii).
        Despite the one-year deadline, the PCRA permits the late filing of a petition where a

petitioner alleges and proves one of the three narrow exceptions to the mandatory time-bar under

subsections 9545(b)(l)(i)-(iii). To invoke an exception, a petition must allege and the petitioner

must prove:

         (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 ofthe 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
        ofthe 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.

Id. § 9545(b)(l )(i)-(iii).

        Although Petitioner acknowledged the PCRA's time-bar, he claimed that his petition is

exempt from its mandate because his judgment of sentence never became final. See PCRA



                                                 4
petition, 4/3/14 at 5. Petitioner argued specifically that the unlawfulness of his sentence

forestalled the attachment of finality. Id. Petitioner's failure to cite any persuasive legal authority

notwithstanding, the PCRA's section regarding judgment finality does not incorporate a

sentence-propriety provision. See 42 Pa.C.S. § 9545. Ultimately, Petitioner's bald repudiation of

the PCRA's time-bar did not permit its circumvention. Thus, Petitioner failed to plead and prove

an exception to the statutory time-bar.
    D. Petitioner was not entitled to habeas corpus relief based upon the Department of
       Corrections' lack of a written sentencing order.

       The PCRA court did, however, evaluate Petitioner's claim that the Department of

Corrections ("DOC") lacked legal authority for his continued detention due to the lack of a

written sentencing order, in contravention of 42 Pa. Cons. Stat. § 9764(a)(8) (relating to

information required upon commitment and subsequent disposition), and 37 Pa. Code § 91.3

(reception of inmates). See Joseph v. Glunt, 96 AJd 365 (Pa. Super. 2014) (concluding that the

PCRA did not subsume an illegal-sentence claim based on the inability of the DOC to produce a

written sentencing order). Upon review, the Honorable Albert J. Snite, Jr., entered sentencing

orders in this matter on June 14, 2007. The original orders are being maintained as a part of

Petitioner's case file. Additionally, upon reviewing the criminal docket through the Common

Pleas Case Management System, Petitioner's sentence was accurately docketed by the Clerk of

Courts of this court. The Superior Court of Pennsylvania has held that even when the DOC lacks

possession of a written sentencing order, it has continuing authority to detain a prisoner. Id. at

372.

   IV. CONCLUSION

       This court has once again evaluated a collateral petition filed by Mr. Keys. Petitioner

failed to meet his burden of proving an exception to the PCRA's statutory time-bar, Additionally,

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Petitioner's claim that he is being unlawfully detained by the DOC is rneritless. Accordingly, for

the reasons stated herein, the decision. of the   court dismissing the PCRA petition and denying

habeas corpus relief should be affirmed.


                                                        BY THE COURT:




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