J-S06021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    KEVIN SANDERS                              :
                                               :   No. 925 EDA 2017
                       Appellant               :

            Appeal from the PCRA Order Entered February 22, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0222741-1988,
              CP-51-CR-0226571-1988, CP-51-CR-0226611-1988,
                           CP-51-CR-0226651-1988


BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                             FILED APRIL 23, 2018

        Appellant, Kevin Sanders, appeals pro se from the February 22, 2017

order entered in the Court of Common Pleas of Philadelphia County (“PCRA

court”), denying his petition for habeas corpus relief, which the PCRA court

treated as a serial, untimely Post Conviction Relief Act (“PCRA”) petition.1

Sanders seeks relief from the judgment of sentence of an aggregate term of

36 years to 72 years’ imprisonment, imposed on August 7, 1989, following his

conviction of five counts of robbery and five counts of criminal conspiracy. 2

On appeal, he contends the PCRA court erred in characterizing his habeas

corpus petition as a PCRA petition; all cases stating that the PCRA’s time
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1   42 Pa.C.S. §§ 9541-9546.

2   18 Pa.C.S.A. §§ 3701 and 903, respectively.
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restriction is jurisdictional do so in dicta; and the Remedies Clause of Article I

§ 11 of the Pennsylvania Constitution requires courts to afford him a remedy

for his claim that PCRA counsel was ineffective. We affirm.

       The relevant procedural history underlying this appeal is as follows. On

January 11 and 19, 1989, Sanders was convicted by a jury of the above-stated

offenses. On August 7, 1989, he was sentenced to an aggregate term of 36

years to 72 years’ imprisonment. On April 26, 1995, this Court affirmed the

judgment of sentence on direct appeal and on November 8, 1995, the

Supreme Court of Pennsylvania denied allowance of appeal. Commonwealth

v. Sanders, 663 A.2d 253 (Pa.Super. 1995) (unpublished memorandum),

appeal denied, 668 A.2d 1129 (Pa. 1995).

       Sanders filed his first pro se PCRA petition in October 1996. In that

petition he raised numerous claims of ineffective assistance of trial and

appellate counsel. Counsel was appointed and eventually filed a Finley letter

asserting that no meritorious claims existed.3 Sanders filed objections to the

Finley letter and on May 12, 1997, the PCRA court rejected counsel’s Finley

letter and ordered counsel to consult with Sanders. Counsel then submitted a

supplemental Finley letter which the court accepted. Sanders did not file

objections to the supplemental Finley letter. Subsequently the court denied

the PCRA petition and granted counsel leave to withdraw.




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3   Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1983) (en banc).

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      Thereafter, Sanders filed several PCRA petitions, all of which were

denied. On November 13, 2015, he then filed his so-called “Habeas” petition

that gave rise to this appeal. In the petition, Sanders alleged that his first

PCRA counsel was ineffective for failing to amend and brief his pro se petition

to include a challenge to the legality of consecutive sentences imposed for

multiple counts of criminal conspiracy. Additionally, he alleged that trial and

appellate counsel failed to properly raise and preserve the above issues. He

further alleged that prior PCRA counsel was ineffective for failing to challenge

appellate counsel’s deficient performance in failing to raise on direct appeal,

meritorious issues that were properly preserved by trial counsel by way of

post-verdict motions.

      The PCRA court treated the petition as a PCRA petition and dismissed it

as untimely on February 22, 2017. The PCRA court did not direct Sanders to

file a Concise Statement of Errors Complained of on Appeal pursuant to

Pa.R.A.P. 1925(b).

      On appeal, Sanders raises the following issues:

      I.     Did the lower court err in treating appellant’s petition for
             writ of habeas corpus ad subjiciendum as a petition
             pursuant to the Post Conviction Relief Act?

      II.    Are prior appellate courts’ assertions, that the PCRA’s time
             restriction is jurisdictional, dictum, not based on proper
             statutory analysis and contrary to legislative intent?

      III.   Does the Remedies Clause of Article I § 11 of the
             Pennsylvania Constitution mandate that courts of this
             Commonwealth provide criminal defendants with a formal



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              remedy for purposes of vindicating their rule-based right to
              the effective assistance of PCRA counsel?

Appellant’s Brief at 4.

       Sanders claims that his petition below was properly a petition for writ of

habeas corpus because it sought relief for his claim that PCRA counsel was

ineffective, and such claims are not covered under the PCRA. We disagree.

The writ of habeas corpus has for most purposes been subsumed in the PCRA.

Commonwealth v. Dickerson, 900 A.2d 407, 412 (Pa.Super. 2006). The

PCRA is the sole means by which a criminal defendant may seek collateral

relief, including for claims that counsel, including PCRA counsel, was

ineffective. 42 Pa.C.S.A. § 9542.4 As the Commonwealth correctly notes,

ineffective    assistance     of   counsel     claims,   including   challenging   the

effectiveness of PCRA counsel, are cognizable under the PCRA. 42 Pa.C.S.A. §

9543(a)(2)(ii). Thus the PCRA court properly treated Sanders’ so-called

“Petition for Writ of Habeas Corpus Ad Subjiciendum” as a PCRA petition.

       We next address Sanders’ claim regarding the PCRA’s time limitation for

the filing of a PCRA petition. All claims cognizable under the PCRA, including

ineffectiveness claims, must be filed within one year of the date the judgment

becomes final unless a statutory exception to the one-year time bar applies.

42 Pa.C.S.A. § 9545(b); Commonwealth v. Wharton, 886 A.2d 1120, 1127

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4 “The action established in this subchapter shall be the sole means of
obtaining collateral relief and encompasses all other common law and
statutory remedies for the same purpose that exist when this subchapter takes
effect, including habeas corpus . . .” 42 Pa.C.S.A. § 9542 (emphasis
added).

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(Pa. 2005). 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 time for seeking

direct review. 42 Pa.C.S.A. § 9545(b)(3).

      The one-year deadline does not apply only if the petitioner pleads and

proves at least one of the three limited exceptions to the one-year time bar:

      (i)      [T]he failure to raise the claim previously was the result
               of the 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)     [T]he 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)    [T]he 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).

      Allegations of ineffective assistance of counsel do not overcome the

jurisdictional timeliness requirements of the PCRA. Wharton, 886 A.2d at

1127. A petition invoking an exception must be filed within 60 days of the date

the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2).

      Sanders fails to allege any of the exceptions apply here and instead

claims that statements in prior cases that the PCRA’s time bar is jurisdictional

are dicta and that cases containing those statements were wrongly decided.



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This argument is meritless. The Supreme Court of Pennsylvania and this Court

have    repeatedly     held    that   the      PCRA’s   timeliness   requirements   are

jurisdictional. See Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa.

2003); Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999) (holding that

where petitioner fails to satisfy PCRA time requirements, court has no

jurisdiction to entertain the petition); Commonwealth v. Derrickson, 923

A.2d 466, 468 (Pa.Super. 2007) (holding that trial court lacked jurisdiction to

review post-conviction petition filed more than one year after judgment of

sentence became final). We are in no position to disagree.

       Sanders’ final argument is that the PCRA’s time bar is unconstitutional

as applied to him because it deprives him of a remedy in violation of Article I

Section 11 of the Pennsylvania Constitution.5 To the contrary, a PCRA

petitioner has a remedy for PCRA counsel’s ineffectiveness. A petitioner may

raise PCRA counsel’s alleged ineffectiveness after receiving counsel’s

withdrawal letter or after receiving Pa.R.Crim.P. 907 notice of intent to

dismiss. Commonwealth v. Pitts, 981 A.2d 875, 880 n.4 (Pa. 2009). Failing

to raise an ineffectiveness of counsel claim prior to the appeal of the

underlying PCRA results in a waiver of the claim. Commonwealth v. Smith,

121 A.3d 1049, 1054 (Pa.Super. 2015). Even where a petitioner has waived

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5“All courts shall be open; and every man for an injury done him in his lands,
goods, person or reputation shall have remedy by due course of law, and right
and justice administered without sale, denial or delay. Suits may be brought
against the Commonwealth in such manner, in such courts and in such cases
as the Legislature may by law direct.” Pa. Const. Art. 1, § 11.

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the claim of ineffectiveness, if a subsequent timely PCRA is filed or the

petitioner pleads and proves that one of the exceptions to the time bar applies,

a claim of PCRA counsel’s ineffectiveness may be pursued. Commonwealth

v. Jette, 23 A.3d 1032, 1044 n.14 (Pa. 2011).

      Here, Sanders was afforded the opportunity to claim ineffectiveness of

counsel when he received the supplemental Finley letter filed by counsel for

his first PCRA. Sanders did not respond by raising in the PCRA court any claim

that PCRA counsel was ineffective. Instead, he filed a Notice of Appeal. As

such, he waived the ineffectiveness of PCRA counsel. His waiver does not

exempt him from the PCRA’s time requirements, and it does not convert his

claim into a petition for writ of habeas corpus or constitute a violation of the

Remedies Clause. See Commonwealth v. Turner, 80 A.3d 754, 770-71 (Pa.

2013) (holding Remedies Clause did not require court to afford remedy to

petitioner who failed to utilize PCRA procedures to seek relief during time she

was statutorily eligible).

      Sanders’ reliance on Commonwealth v. Holmes, 79 A.3d 562 (Pa.

2013) and Commonwealth v. Henkel, 90 A.3d 16 (Pa.Super. 2014) (en

banc), is misplaced. Neither of those cases involved untimely PCRA petitions

and therefore are irrelevant to our analysis. Sanders’ reliance on Martinez v.

Ryan, 566 U.S. 1 (2012), is likewise misplaced, as it relates exclusively to

federal habeas review procedures which are obviously not at issue here.

Therefore, we affirm the PCRA court’s decision to dismiss the petition as

untimely.

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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/18




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