J-S25036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

CHARLES PATTERSON

                            Appellant               No. 1477 WDA 2015


                 Appeal from the PCRA Order August 31, 2015
               in the Court of Common Pleas of Jefferson County
              Criminal Division at No(s): CP-33-CR-0000088-2010


BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                            FILED APRIL 4, 2016

        Charles Patterson (“Appellant”) appeals from the order dismissing his

Petition to Vacate an Illegal Sentence Writ of Habeas Corpus, which the trial

court treated as a petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we affirm.

        On February 7, 2011, Appellant pleaded guilty to persons not to

possess firearms,1 for which the trial court sentenced him to five (5) years’

probation.      On June 11, 2013, the Jefferson County Adult Probation

Department charged Appellant with multiple probation violations.2 Following
____________________________________________


1
    18 Pa.C.S. § 6105(c)(2).
2
  Appellant’s probation violations included failure to report, unauthorized
change of residence, new criminal charges (a bad checks charge and charges
of criminal trespass and criminal impersonation in New York State), failure to
report loss of employment, unpermitted foreign travel, alcohol consumption,
(Footnote Continued Next Page)
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Appellant’s extradition and a revocation hearing conducted on July 17, 2013,

the trial court revoked Appellant’s probation and sentenced him to five (5) to

ten (10) years’ incarceration.            Appellant filed a notice of appeal, and

appointed counsel filed an Anders3 brief.           On April 24, 2014, this Court

affirmed and granted counsel’s petition to withdraw. See Commonwealth

v. Patterson, 1364 WDA 2013 (unpublished memorandum).

        On July 21, 2014, Appellant filed a PCRA petition that raised (1) a

discretionary aspects of sentencing claim,4 (2) an ineffective assistance of

counsel claim based on an alleged failure of counsel to correct errors

contained in the PSI report and an alleged failure to postpone sentencing

hearing to allow Appellant to gather evidence for presentation at sentencing,

and (3) a claim that the trial court violated the guilty plea agreement

Appellant made with the Commonwealth by resentencing him.5             The PCRA
                       _______________________
(Footnote Continued)

failed urine drug screen, and failure to make payments towards fines, costs,
and restitution.
3
 Anders v. California, 386 U.S. 738 (1967); see also Commonwealth v.
McClendon, 434 A.2d 1185 (Pa.1981).
4
    Appellant characterized his claim as an illegal sentence claim, stating:

        1. Illegal sentence – defendant was sentenced to a greater term
        than sentencing guidelines permit based on prior gravity score.
        Court used charges on defendants PSI report against him that he
        was never prosecuted for.

PCRA Petition, p. 3 (verbatim).
5
    Appellant articulated this claim as follows:
(Footnote Continued Next Page)


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court appointed counsel, who filed a Turner6/Finley7 no-merit letter on

August 7, 2014.

       On August 7, 2014, the PCRA court filed its notice of intent to dismiss

the PCRA petition pursuant to Pa.R.Crim.P. 907.8 On August 29, 2014, the

PCRA court dismissed Appellant’s PCRA petition. Appellant did not appeal.

       On July 20, 2015, Appellant filed the instant Petition to Vacate an

Illegal Sentence Writ of Habeas Corpus (“Petition to Vacate”), which alleged

his sentence was illegal pursuant to Alleyne v. United States, __ U.S. __,

133 S.Ct. 2151 (2013), and its Pennsylvania progeny.          See generally

Petition to Vacate. On July 27, 2015, treating this filing as a second PCRA

petition, the PCRA court filed a notice of intent to dismiss the Petition to

Vacate without a hearing pursuant to Pa.R.Crim.P. 907.        On August 31,

2015, the PCRA court dismissed the Petition to Vacate. Also on August 31,

                       _______________________
(Footnote Continued)


       3. Violation of plea – As on June 19, 2013 District Attorney said
       [Appellant’s] charge carries maximum 3½-7 yrs Judge agreed
       and Accepted Then changed sentence at later date.

PCRA Petition, p. 3 (verbatim).
6
    Commonwealth v. Turner, 544 A.2d 927 (Pa.1988).
7
    Commonwealth v. Finley, 550 A.2d 213 (Pa.Super.1988) (en banc).
8
  By separate order dated August 8, 2014, the PCRA court granted PCRA
counsel’s petition to withdraw and informed Appellant of his right to proceed
pro se or with privately-retained counsel.




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2015, Appellant filed an amended PCRA petition, which the PCRA court

denied in a September 1, 2015 Supplement to Order Dismissing PCRA

Petition.   Appellant filed a notice of appeal on September 21, 2015. Both

Appellant and the PCRA court complied with Pa.R.A.P. 1925.9

        Appellant raises the following claims for our review:

        1. Did the PCRA/Sentencing Court Err in deciding Appellant’s
        Subsumed Post Conviction Relief Application failed to meet any
        of the exceptions to timeliness, thus dismissing the Application
        for Lack of Jurisdiction?

        2. Did the PCRA/Sentencing Court Err in Changing the
        Appellant’s Petition to Vacate an Illegal Sentence/Writ of Habeas
        Corpus to a Post Conviction Relief Application, thus making no
        remedy available?       In Addition to the Court Violating the
        Appellant’s Equal Protections Right?

        3. Was all Prior Counsels Constitutionally Ineffective for Failing
        to investigate, object, raise, litigate claims and claim of newly
        discovered evidence?

Appellant’s Brief, pp. 2-3 (verbatim).

        Our well-settled standard of review for orders denying PCRA relief is

“to determine whether the determination of the PCRA court is supported by

the evidence of record and is free of legal error. The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record.”      Commonwealth v. Barndt, 74 A.3d 185, 191-192

(Pa.Super.2013) (internal quotations and citations omitted).



____________________________________________


9
    The Commonwealth did not file a brief in this matter.



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     Initially, while Appellant styled his filing as a “Petition to Vacate an

Illegal Sentence Writ of Habeas Corpus”, the PCRA court treated it as a PCRA

petition. As this Court has explained:

     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. [Commonwealth
     v.] Fahy, [737 A.2d 214,] [] 223–224 [Pa.1999];
     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). Styling

a petition as a habeas petition in lieu of a PCRA petition does not remove a

petition from the subject matter of the PCRA, nor does it excuse a petitioner

from complying with the PCRA’s requirements.       See Commonwealth v.

Breakiron, 781 A.2d 94, 96 n.2 (Pa.2001) (notwithstanding captioning of

petition, claims only cognizable to the extent they would be cognizable under

the PCRA); Commonwealth v. Peterkin, 722 A.2d 638, 641 (Pa.1998)

(PCRA subsumes habeas corpus and petitioner must abide by PCRA

requirements).




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      Here, the PCRA was the proper vehicle under which Appellant could

make his collateral challenge, not the habeas statute. Accordingly, the PCRA

court properly treated Appellant’s Petition to Vacate as a PCRA petition.

      Next, because the Petition to Vacate was properly considered a PCRA

petition, we must consider the timeliness of the petition. “It is undisputed

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

judgment of sentence becomes final.” Commonwealth v. Hernandez, 79

A.3d 649, 651 (Pa.Super.2013); 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 a petition.” Hernandez, 79 A.3d at

651 (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, a facially untimely petition

may be received where any of the PCRA’s three limited exceptions to the

time for filing the petition are met. Hernandez, 79 A.3d at 651 (footnote

omitted). These exceptions include:

      (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


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       (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).          As our Supreme Court has repeatedly

stated, the petitioner maintains the burden of pleading and proving that one

of these exceptions applies.          Commonwealth v. Abu-Jamal, 941 A.2d

1263, 1268 (Pa.2008), cert. denied, 555 U.S. 916 (2008). Further,

       [a] petition invoking one of these exceptions must be filed within
       sixty days of the date the claim could first have been presented.
       42 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).

Hernandez, 79 A.3d at 651-652 (internal quotations omitted).

       Here, the trial court resentenced Appellant following his probation

violations on July 17, 2013.         This Court affirmed Appellant’s judgment of

sentence on April 24, 2014.          Because Appellant did not file a petition for

allowance of appeal to our Supreme Court, his sentence became final 30

days later, on May 24, 2014.          Appellant had until May 26, 201510 to timely

file a PCRA petition. Appellant filed his Petition to Vacate on July 20, 2015,

nearly two months after the expiration of the limitations period.              To

____________________________________________


10
    May 24, 2015 fell on a Sunday. The following Monday, May 26, was
Memorial Day, a national holiday. Accordingly, Appellant had until the
following Tuesday, May 26, 2015, to timely file a PCRA petition.



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overcome the PCRA time-bar, Appellant argues that Alleyne applies

retroactively to cases on collateral review. This argument is unconvincing.

     In Alleyne, the Supreme Court of the United States held that the Due

Process Clause of the Constitution of the United States requires each factor

that increases a mandatory minimum sentence to be submitted to a jury and

found beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2163. Based upon

Alleyne, this Court stated in dicta in Commonwealth v. Watley that

sections 7508 and 9712.1 of the Sentencing Code are unconstitutional

insofar as they permit a judge to automatically increase a defendant’s

sentence based on a preponderance of the evidence standard for factors

other than a prior conviction.     Commonwealth v. Watley, 81 A.3d 108,

177 n.4 (Pa.Super.2013) (en banc), appeal denied, 95 A.3d 277 (Pa.2014).

     Following Alleyne, this Court then held that the preponderance of

evidence standard employed by the “proof at sentencing” section of multiple

mandatory minimum statutes was unconstitutional and non-severable, and

rendered the statutes themselves unconstitutional.          Commonwealth v.

Newman,     99     A.3d    86   (Pa.Super.2014)   (en    banc)    (section   9712.1

unconstitutional   under    Alleyne    and   statute’s   “proof    at   sentencing”

subsection not severable); see also Commonwealth v. Wolfe, 106 A.3d

800, 801 (Pa.Super.2014) (same as to section 9718). The Supreme Court

of Pennsylvania then employed the same reasoning to affirm this Court’s

determination that certain mandatory minimum sentencing statutes were

unconstitutional. See Commonwealth v. Hopkins, 117 A.3d 247, 249 (Pa.

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2015)     (18    Pa.C.S.     §   6317     unconstitutional   under   Alleyne   and

unconstitutional provisions not severable).

       The instant case does not involve a mandatory minimum sentencing

statute, and so does not implicate Alleyne. As the PCRA court explained:

             On February 7, 2011, [Appellant] pled guilty to one count
       of [p]ossession of a [f]irearm, a Felony 2 offense. There was no
       mandatory minimum applicable to that crime. Accordingly, none
       was sought and none was imposed. Nor was it applicable,
       sought, or imposed when the [c]ourt resentenced him on July
       17, 2013.      Rather, what the [c]ourt did was impose the
       maximum sentence for a second-degree felony – an available
       sentencing alternative after it revoked his probation. See 42
       Pa.C.S.[] § 9771(b) (“Upon revocation the sentencing
       alternatives available to the court shall be the same as were
       available at the time of initial sentencing”).

Notice of Intention to Dismiss PCRA Petition, July 27, 2015 (“Rule 907

Notice”),11 pp. 1-2.

       Because the trial court did not sentence Appellant to a mandatory

minimum sentence, the PCRA court properly determined (1) Alleyne was

irrelevant to Appellant’s claim, and (2) that Appellant’s petition was time-

barred because he did not plead and prove an exception to the PCRA’s

timeliness requirement. See Rule 907 Notice, p. 2. Accordingly, we affirm

the PCRA court’s order dismissing Appellant’s Petition to Vacate.


____________________________________________


11
    The PCRA court’s order dismissing Appellant’s Petition to Vacate
incorporates by reference its Rule 907 Notice, which the court explained
articulated its reasons for denying Appellant’s Petition to Vacate. See Order
Dismissing PCRA Petition, August 31, 2015, p. 1.



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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/4/2016




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