J-S43036-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARTY BOANES                               :
                                               :
                       Appellant               :   No. 165 MDA 2019

             Appeal from the PCRA Order Entered January 3, 2019
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0005305-2002


BEFORE:      GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                        FILED OCTOBER 22, 2019

        Appellant Marty Boanes appeals from the Order entered in the Court of

Common Pleas of York County on January 3, 2019, denying his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        The PCRA court detailed the facts and procedural history herein as

follows:

               On August 26, 2002, Appellant [ ] was arrested by Scott
        Nadzom of the York City Police Department. An [a]rraignment was
        scheduled for November 22, 2002 but was waived by Appellant.
        On December 9, 2002, Attorney Stanley Silver entered his
        appearance as [c]ounsel for Appellant. A [p]re-trial [c]onference
        was scheduled for February 13, 2003, in front of the Honorable
        Michael J. Brillhart. At the [p]re-trial [c]onference the case was
        listed for trial during the March 2003 trial term.
               On March 3, 2003, Appellant’s counsel requested a
        continuance so that he could file a petition for decertification; at
        the time of the attack, Appellant was 16 years old. A formal
        request for continuance was filed on March 10, 2003; this was
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1   42 Pa.C.S.A. §§ 9541-9546.
____________________________________
* Former Justice specially assigned to the Superior Court.
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     granted with the condition that if a petition for decertification was
     not filed in a timely manner a pre-trial conference would be held
     on April 17, 2003 and the case would be listed for the May 2003
     trial term.
            The petition for decertification was not filed and a pre-trial
     conference was held on April 17, 2003.             At the pre-trial,
     Appellant’s counsel was given a deadline of Apri1 25, 2004 to file
     a petition for decertification. A Motion to Transfer Jurisdiction to
     Juvenile Court was filed on May 5, 2003. A decertification hearing
     was held on May 28, 2003. Appellant's petition for decertification
     was ultimately denied.
            A Motion in Limine was filed on June 16, 2003. At the
     decertification hearing the victim, Richard Newson, testified. As
     he was leaving the courtroom after testifying Appellant stated to
     Newson: “I'm still looking for you.” The Commonwealth wanted to
     admit this statement as evidence. A pre-trial conference was held
     on June 17, 2003; the case was set for the July 2003 trial term.
     The Motion in Limine was discussed at the pre-trial conference;
     the Commonwealth was allowed to use the statement as evidence,
     with Appellant being allowed to refute it.
            A jury trial was held on July 7 and 8, 2003. Appellant was
     found guilty of Criminal Attempt to Commit Criminal Homicide;
     guilty of Aggravated Assault Causing Serious Bodily Injury; guilty
     of Aggravated Assault Causing Bodily Injury with a Deadly
     Weapon; guilty of Possession of Firearms by a Minor; and guilty
     of Recklessly Endangering Another Person. A presentence
     investigation was ordered, and a sentencing hearing was
     scheduled for August 18, 2003.
            A sentencing hearing was held on August 18, 2003. The
     Commonwealth did request the mandatory minimum sentence.
     The mandatory minimum was five year confinement for Criminal
     Attempt to Commit Criminal Homicide and Aggravated Assault
     charges.
            The sentencing guidelines for Criminal Attempt to Commit
     Criminal Homicide, where there is serious bodily injury, with a
     prior record score of zero and an offense gravity score of 14, called
     for 90 to 240 months. The sentencing court found aggravating
     circumstances: there was a cooling off period after which [ ]
     [A]ppellant returned with a gun; the circumstances surrounding
     the shooting; [A]ppellant’s casual regard to carrying and using
     weapons through his young and formative years; and [A]ppellant
     received four write-ups for inappropriate conduct between
     January 2003 and April 2003. The sentencing court also applied
     the use of a deadly weapon enhancement.

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           Given all of the above, the court sentenced Appellant to 15
     to 30 years in a state correctional institution for the offense of
     Criminal Attempt to Commit Criminal Homicide; the aggravated
     assault and recklessly endangering charges merged for sentencing
     purposes. Appellant was sentenced to one to two years for the
     possession of a firearm by a minor charge; this was to run
     concurrently.
           On September 16, 2003, Appellant filed a Notice of Appeal
     to the Pennsylvania Superior Court. Appellant failed to file a
     docketing statement pursuant to Pennsylvania Rule of Appellate
     Procedure 3517; as a result his appeal was dismissed by the
     Superior Court on November 10, 2003. In that time, Appellant’s
     [c]ounsel, Stanley Silver filed a Petition to Withdraw as Counsel
     on October 6, 2003. On October 7, 2003, the Petition to Withdraw
     as Counsel was denied.
           On November 30, 2006, Appellant filed a Limited Motion for
     Post-Conviction Collateral Relief. Appellant’s 2006 PCRA Motion
     alleged that his counsel was ineffective for failing to file a
     docketing statement pursuant to Pa.R.A.P. 3517. Appellant
     requested that his appeal rights be reinstated. Attorney Richard
     Robinson was appointed to represent Appellant. On February 20,
     2007, the Commonwealth filed a Motion to Dismiss Appellant’s
     Motion for Post-Conviction Collateral Relief
           A hearing was held on Appellant’s PCRA Motion on February
     20, 2007 before the Honorable Michael J. Brillhart. At that time
     the [c]ourt also considered the Commonwealth’s Motion to
     Dismiss. At the hearing, the [c]ourt denied the Commonwealth’s
     Motion to Dismiss. The [c]ourt reinstated Appellant’s direct appeal
     rights.
           On February 23, 2007, the Commonwealth filed a Notice of
     Appeal to the Pennsylvania Superior Court. The Commonwealth
     argued in the Statement of Matters Complained of on Appeal that
     the PCRA Court improperly granted Appellant’s PCRA petition
     because [Appellant] filed the PCRA petition outside of the one-
     year statute of limitations and did not meet any of the exceptions.
     This case was docketed at 391 MDA 2007.
           The Pennsylvania Superior Court remanded the case on
     September 18, 2007. The Superior Court directed the trial [c]ourt
     to make further findings into areas related to the timeliness of
     Appellant’s filing of his PCRA petition. A hearing was held on the
     remand directive on November 2, 2007. Ultimately the Superior
     Court affirmed the ruling of the Trial Court on December 26, 2007.
           On January 7, 2008, Appellant filed a Notice of Appeal to the
     Pennsylvania Superior Court. This Appeal was docketed at 76 MDA

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        2008. The issues in that appeal were: whether the evidence was
        sufficient to support the charge of criminal attempt to criminal
        homicide; and whether the trial court erred in denying the petition
        for decertification to juvenile court. The appeal was withdrawn and
        discontinued by Appellant on March 11, 2008.
               On April 3, 2008 Appellant filed a Petition for Post-
        Conviction Collateral Relief. The issues in the PCRA Petition were
        that a violation of the Constitution of the Commonwealth or
        Constitution or laws of the United States which, in the
        circumstances of the particular case, so undermine the truth
        determining process that no reliable adjudication of guilt or
        innocence could have taken place; and [i]neffective assistance of
        counsel which, in the circumstances of the particular case, so
        undermine the truth determining process that no reliable
        adjudication of guilt or innocence could have taken place. A
        hearing was scheduled for May 27, 2008 to address the PCRA
        Petition; this was rescheduled to August 5, 2008. On October 9,
        2008, the trial court denied Appellant’ s request for relief pursuant
        to the Post-Conviction Collateral Relief Act.
               On October 9, 2008, Appellant filed a Notice of Appeal to the
        Pennsylvania Superior Court. This appeal was docketed at 1943
        MDA 2008. The issue for this appeal was whether trial counsel was
        ineffective for a litany of reasons. On October 29, 2009, the
        Pennsylvania Superior Court affirmed the trial court’s decision.
               On November 19, 2009, Appellant filed a Petition for
        Allowance of Appeal to the Pennsylvania Superior Court. This was
        docketed at 862 MAL 2009. On May 5, 2010, the Superior Court
        denied Appellant’s Petition.
               On May 4, 2015, Appellant filed another Petition for Post-
        Conviction Collateral Relief. At the time, Appellant was not
        represented by [c]ounsel and the Petition was filed pro se. The
        PCRA alleged three issues: there was a violation of the
        Constitution which undermined the truth determining process; an
        illegal sentence was imposed; there was a violation of the Rule in
        Apprendi,[2] as interpreted by Alleyne v. United States, 133 S. Ct.
        2151 ( 2013).
               On January 14, 2016, Richard Robinson, Esquire, was
        reappointed to represent Appellant. Counsel was given 45 days to
        file any amendments to the petition. A Motion for Extension was
        filed on February 18, 2016. This Honorable Court granted the


____________________________________________


2   Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000).

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     Motion for Extension; Appellant had an additional 30 days to file
     any amendments to the PCRA Petition.
            An amended Petition was filed on March 29, 2016. This
     Petition was titled Amended PCRA Petition/Habeas Corpus."
     Appellant requested that the petition be considered a habeas
     corpus action. Appellant sought to have his sentence vacated and
     to be resentenced. Appellant merely stated that his sentence was
     illegal; he presented no factual or legal arguments to support his
     conclusion.
            On May 12, 2017, Appellant filed a pro se Petition to Amend
     Habeas Corpus/Appointment of New Counsel. This Petition alleged
     that [c]ounsel failed to amend the PCRA petition when he was
     contacted with new testimony from the victim Richard Newsom.
     The Petition also alleged that [c]ounsel failed to raise the claim
     that the mandatory sentence requested by the Commonwealth
     was illegal.
            On May 17, 2018, Appellant filed a pro se Motion to Compel.
     Appellant requested an evidentiary hearing on the PCRA/Habeas
     Corpus Petition. A hearing was not held. Appellant filed a second
     pro se Motion to Compel on November 19, 2018. On November
     27, 2018, Counsel for Appellant filed a Motion to Schedule Hearing
     on Appellant’s PCRA Petition. A hearing was scheduled for January
     3, 2019.
            On January 3, 2019, a hearing on Appellant’s petition for
     Post-Conviction Collateral Relief was held. At the hearing the
     Commonwealth moved to dismiss Appellant’s Petition on the
     grounds that it was untimely. The Commonwealth argued that
     because Appellant’s last direct appeal was completed March 11,
     2008, he had one year from that date to file a PCRA Petition and
     the instant petition was not filed until May 2015. At the hearing,
     [c]ounsel merely stated that the Petition is a Habeas petition and
     not a Petition for Post-Conviction Collateral Relief. This [c]ourt
     granted the Commonwealth’s Motion to Dismiss.
            On January 30, 2019, Appellant filed this Notice to Appeal
     to the Pennsylvania Superior Court. On February 21, 2019, this
     Court issued a Concise Statement Order. On March 4, 2019,
     Appellant filed a Statement of Matters Complained of on Appeal.
     This Opinion in Support of Order follows.
            At this point, Appellant has filed four Appeals with the
     Pennsylvania Supreme [sic] Court, including this one; the trial
     court has been affirmed in the first three appeals. Appellant also
     filed a Petition for Allowance to Appeal; this was denied. Appellant
     has filed three Petitions for Post-Conviction Collateral Relief; the
     third PCRA Petition was amended once by Appellant's [c]ounsel

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      and once by Appellant himself. Counsel’s Amendment was the
      first time the Petition was referred to as a Habeas Corpus Petition.

Trial Court Opinion, filed 3/29/19, at 1-9.

      In his brief, Appellant presents the following issue for our review:

      1. Whether the trial court erred in dismissing Appellant’s Petition
         for Writ of Habeas Corpus as untimely treating the petition as
         a PCRA petition.

Brief for Appellant at 4.

      All PCRA petitions, including a second and subsequent one, must be filed

within one year of when a defendant’s judgment of sentence becomes final.

42 Pa.C.S.A. § 9545(b)(1). “A judgment 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

the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). The Supreme

Court of Pennsylvania has held that the PCRA’s time restriction is

constitutionally valid. Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.

2004). In addition, our Supreme Court has instructed that the timeliness of

a PCRA petition is jurisdictional; thus, if a PCRA petition is untimely, a court

lacks jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d

118, 120-121 (Pa.Super. 2014); see also Commonwealth v. Wharton, 886

A.2d 1120 (Pa. 2005) (courts do not have jurisdiction over an untimely PCRA).

     Herein, Appellant withdrew his direct appeal on March 11, 2008;

therefore, his judgment of sentence became final on that date. See

Commonwealth v. Conway, 706 A.2d 1243, 1244 (Pa. 1997) (judgment of

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sentence becomes final when direct appeal is discontinued). Thus, Appellant

had until March 11, 2009, to file a timely PCRA petition. 42 Pa.C.S.A. §

9545(b)(1). The one before us, filed on May 4, 2015, is patently untimely.

      A second or subsequent PCRA petition must be filed within one year of

the date a judgment becomes final unless the petition alleges, and the

petitioner proves, that an exception to the time for filing the petition is met.

See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).     Appellant attempts to evade the

timeliness requirements of the PCRA by arguing that the instant petition was

not filed pursuant to the PCRA but rather is a petition for a writ of habeas

corpus.

     On March 29, 2016, Appellant amended the instant PCRA petition

wherein he referred to the same as a Writ of Habeas Corpus. In his appellate

brief, Appellant states that he is not alleging any claims of ineffective

assistance of counsel in his petition.     He asserts he had been “illegally

sentenced . . . which resulted in his constitutional rights being violated” and

that such a claim cannot be waived. Appellant posits that such an assertion

“fall[s] outside of the eligibility requirements governing PCRA petitions for

relief” because a challenge to the legality of a sentence “is not cognizable

under the PCRA Act but more properly brought through a writ of habeas

corpus.” Brief for Appellant at 9.

      To the contrary, it is axiomatic that the PCRA subsumes all other post-
conviction remedies, including habeas corpus and coram nobis (see 42
Pa.C.S.A. § 9542) and that the writ of habeas corpus can be used only when

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there is no available remedy under the PCRA (see, e.g., Commonwealth v.
Judge, 916 A.2d 511 (Pa. 2007). Furthermore, it is well established that the
timeliness requirements of a PCRA petition must be met, even if the underlying
claim is a challenge to the legality of the sentence. See Commonwealth v.
Holmes, 933 A.2d 57, 60 (Pa. 2007) (“Although legality of sentence is always
subject to review within the PCRA, claims must still first satisfy the PCRA’s
time limits or one of the exceptions thereto”) (citing Commonwealth v.
Fahy, 737 A.2d 214, 223 (Pa. 1999)).
      Our Supreme Court has explained that:
      [t]he plain language of Section 9542 demonstrates quite clearly
      that the General Assembly intended that claims that could be
      brought under the PCRA must be brought under that Act. No other
      statutory or common law remedy “for the same purpose” is
      intended to be available; instead, such remedies are explicitly
      “encompassed” within the PCRA.

Commonwealth v. Descardes, 136 A.3d 493, 499 (Pa. 2016) (internal
alteration and citation omitted; emphasis removed). “Therefore, the question
is whether Appellant's particular claim—an illegal sentencing claim—is a claim
that is cognizable under the PCRA. See id. It clearly is. 42 Pa.C.S.A. §
9543(a)(2)(vii); see also Commonwealth v. Ciccone, 152 A.3d 1004, 1006
(Pa. Super. 2016) (en banc), appeal denied, 169 A.3d 564 (Pa. 2017).”
Commonwealth v. Montgomery, 181 A.3d 359, 367-68 (Pa.Super. 2018)
appeal denied, 190 A.3d 1134 (Pa. 2018). Accordingly, Appellant’s argument
that his habeas petition is not a PCRA petition is devoid of any support in the
law, and the PCRA court properly construed Appellant's petition as a PCRA
petition subject to timeliness requirements. Id.
      In light of the foregoing, the instant petition is facially untimely, and

Appellant does not allege, let alone prove, the applicability of any exception




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to the time-bar. See 42 Pa.C.S.A. §§ 9545(b)(1)(i)-(iii).3 Indeed, Appellant

readily admits that other than the “sentencing issues” in light of which he

requests the instant petition be “considered a habeas corpus action,” no other

claims exist. See Amended PCRA Petition/Habeas Corpus, 3/29/16, at ¶¶ 9,

11; Appellant’s Brief at 9. Accordingly, we have no jurisdiction to entertain

the merits of the underlying petition, and we affirm the order of the PCRA

court.4


____________________________________________


3 To the extent Appellant may have attempted to satisfy 42 Pa.C.S.A. §
9545(b)(1)(iii) by referencing in his PCRA petition Alleyne v. United States,
570 U.S. 99, 99 (2013) wherein the United States Supreme Court held that
any fact that increases the mandatory minimum sentence for a crime must be
submitted to the jury, Appellant failed to develop such an argument in his
appellate brief. As a result, it is waived. See Commonwealth v. Luktisch,
680 A.2d 877, 879 n.1 (Pa. 1996) (holding that an issue is waived where the
defendant failed to develop an argument in his appellate brief and cited no
authority).
4 We note that for claims arising prior to December 24, 2017, a petitioner
invoking an exception must file his petition within 60 days of the date he or
she could have presented the claim. See Act 2018, Oct. 24, P.L. 894, No. 146,
§ 2 and § 3. Effective December 24, 2018, Act 146 of 2018 amended 42
Pa.C.S.A. § 9545(b)(2), and now provides that a PCRA petitioner invoking a
timeliness exception must file the petition within one year of the date the claim
could have been presented, for all claims arising after December 24, 2017.
See Act 2018, Oct. 24, P.L. 894, No. 146, § 2 and § 3. For this reason, even
had Appellant properly preserved a challenge under Alleyne in his appellate
brief, he did not file his petition within sixty days of the Alleyne decision, and
this Court has held that “neither the [Pennsylvania] Supreme Court nor the
Supreme Court of the United States has held that Alleyne is to applied
retroactively to cases in which the judgment of sentence has become final.”
Commonwealth v. Miner, 102 A.3d 988, 995 (Pa.Super. 2014). Therefore,
he would not be eligible for relief based upon the newly-recognized
constitutional right exception to the PCRA time bar.



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     Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2019




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