J-S95028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                          Appellee

                     v.

CHRISTOPHER DUCKETT

                          Appellant               No. 800 EDA 2016


               Appeal from the PCRA Order February 9, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0505591-2005


BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                          FILED MAY 23, 2017

     Christopher Duckett appeals pro se from the February 9, 2016 order

entered in the Philadelphia County Court of Common Pleas dismissing as

untimely his petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.

     The PCRA court summarized the factual and procedural history of this

matter as follows:

           [Duckett] was arrested and charged with murder and
        related offenses in connection with the shooting death of
        Arthur Bines on June 24, 2004.

           On March 28, 2006, following a jury trial before the
        Honorable Jane Cutler Greenspan, [Duckett] was convicted
        of first degree murder, possession of an instrument of
        crime, and a violation of the Section 6106 of the Uniform
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            Firearms Act.[1] Judge Greenspan thereafter sentenced
            [Duckett] to life imprisonment on the murder bill and
            concurrent terms of two-and-a-half (2 1/2) to five (5)
            years imprisonment on the remaining bills. Post-sentence
            motions were denied by the trial court on July 5, 2006.

               [Duckett] filed a direct appeal.     The Pennsylvania
            Superior Court affirmed [Duckett’s] judgment of sentence
            on December 31, 2008. Commonwealth v. Duckett, No.
            208 EDA 2008 (Pa. Super. Ct. Dec. 31, 2008).         The
            Pennsylvania Supreme Court denied [Duckett’s] request
            for allocator on June 10, 2009.       Commonwealth v.
            Duckett, No. 52 EAL 2009 (Pa. Jun. 10, 2009).

                On May 11, 2010, [Duckett] filed a timely pro se PCRA
            petition alleging ineffective assistance of trial counsel. The
            court subsequently appointed PCRA counsel. Counsel filed
            an amended PCRA petition, and the Commonwealth filed a
            Motion to Dismiss. On February 5, 2007, after reviewing
            the record and the pleadings, the Honorable Benjamin
            Lerner2 dismissed the petition for lack of merit. [Duckett]
            appealed.     On January 23, 2013, the Superior Court
            affirmed     the    dismissal    of   the    PCRA     petition.
            Commonwealth v. Duckett, NO. 2155 EDA 2011 (Pa.
            Super. Ct. Jan. 23, 2013).          [Duckett] did not seek
            allocator.
                  2
                      [Duckett’s] case was administratively
                  reassigned to the Honorable Benjamin Lerner
                  following Judge Greenspan’s retirement.

               In April 2013, [Duckett] filed a second pro se PCRA
            petition. On February 24, 2014, the PCRA court dismissed
            the petition as untimely. [Duckett] filed an appeal, which
            was dismissed by the Superior Court for failure to file an
            appellate brief. Commonwealth v. Duckett, No. 855
            EDA 2014 (Pa. Super. Ct. Dec. 11, 2014).



____________________________________________


       1
           18 Pa.C.S. 18 Pa.C.S. §§ 2502, 907, and 6106(a)(1), respectively.




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              On or about October 22, 2015, [Duckett] filed a pro se
           Writ of Habeas Corpus Ad Subjiciendum[2] in the
           Philadelphia Court of Common Pleas – Civil Trial Division.
           On November 4, 2015, the Honorable Arnold New ordered
           the matter to be transferred to the Criminal Trial Division
           for disposition. On February 9, 2015 after reviewing the
           record and pleadings, Judge Lerner dismissed the petition
           as untimely. The instant appeal follows.4
                 4
                   The Honorable Benjamin Lerner retired prior
                 to [Duckett’s] appeal. As a result, this court,
                 acting in its supervisory capacity, has issued
                 this Rule 1925(a) opinion.

Opinion, 5/16/16, at 1-3 (footnote omitted).

       Duckett raises the following issues on appeal:

           [1.] DID THE COURT OF COMMON PLEAS TRIAL JUDGE
           COMMIT AN[] ERROR OF LAW AND VIOLATE DUE PROCESS
           BY ALLOWING [DUCKETT] TO BE TRIED FOR 1st/ OR 2nd
           DEGREE MURDER, KNOWING THAT NO AUTHORITY UNDER
           STATU[T]E OR LAW EXIST, THAT WOULD ALLOW A JUDGE
           TO IMPOSE A SENTENCE OF LIFE IMPRISONMENT,
           PROHIBITING   THE   SENTENCE     HEREIN,  THEREIN
           VIOLATING [DUCKETT’S] LIBERTY INTEREST.

           [2.] DID THE COURT OF COMMON PLEAS TRIAL JUDGE
           COMMIT AN[] ERROR OF LAW AND VIOLATE DUE
           PROCESS,     KNOWING     THAT   PENNSYLVANIA’S
____________________________________________


       2
        The PCRA court properly treated Duckett’s writ of habeas corpus as a
PCRA petition. See 42 Pa.C.S. § 9542 (“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 and coram nobis.”); see also Commonwealth v. Hall, 771 A.2d
1232, 1235 (Pa. 2001) (“The plain language of the statute above
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.”).



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           [DEPARTMENT OF CORRECTIONS (“DOC”)], HAS NO
           SENTENCING ORDER, THUS VIOLATING STATUTORY
           PROVISION[S] AT 37 PA. CODE § 91.3[;] 42 PA.C.S.A §
           9764, 42 PA.C.S.A. § 9762, TITLE 42 PA.C.S.A
           §9764(a)(8)[.]

           [3.] DID THE COURT OF COMMON PLEAS TRIAL [JUDGE]
           COMMIT AN[] ERROR OF LAW AND VIOLATE DUE
           PROCESS, KNOWING THAT THERE IS NO STATUTORY
           AUTHORIZATION FOR A SENTENCE, THEN THAT
           SENTENCE IS ILLEGAL AND MUST BE VACATED AS A
           MATTER OF LAW, AND THE SENTENCE IS SUBJECTED TO
           BE CORRECTED.

           [4.] DID THE COURT OF COMMON PLEAS TRIAL COURT
           COMMIT AN[] ERROR OF LAW AND VIOLATE DUE
           PROCESS, BY KNOWINGLY NOT PROVIDING ADEQUATE
           NOTICE OF INTENT TO SEEK IMPOSITION FROM
           PROSECUTION, OF THE MANDATORY SENTENCE OF LIFE
           WITHOUT PAROLE IN THE INDICTMENT OF INFORMATION
           UDNER THE TWO APPLICABLE STATUTES: §9711 / §9715.
           . . COMMONWEALTH V. ERIC NORRIS, 2003 Pa. Super. 92;
           819 A.2d 568; 2003 Pa. Super. Lexis 360 (Pa. 2003).

Duckett’s Br. at 5-6 (emphasis and some alterations in original).

       Our standard of review from the denial of PCRA 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).

       Before addressing the merits of Duckett’s PCRA petition, we must first

determine whether his petition was timely.3

____________________________________________


       3
        In his brief, Duckett argues that challenges to the legality of
sentence cannot be waived. “[A]lthough illegal sentencing issues cannot be
waived, they still must be presented in a timely PCRA petition.”
Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa.Super. 2013).



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      It is well settled that “the timeliness of a PCRA petition is a

jurisdictional requisite.”   Commonwealth v. Brown, 111 A.3d 171, 175

(Pa.Super. 2015), app. denied, 125 A.3d 1197 (Pa. 2015). A PCRA petition,

“including a second or subsequent petition, shall be filed within one year of

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

judgment is 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).

      Courts may consider a PCRA petition filed more than one year after a

judgment of sentence became final only if the petitioner alleges and proves

one of the following three statutory exceptions:

         (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

         (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); see Brown, 111 A.3d at 175-76.           In

addition, when invoking an exception to the PCRA time bar, the petition



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must “be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2).

       Duckett’s judgment of sentence became final on September 8, 2009,

when his time to seek review in the Supreme Court of the United States had

expired.4 He had one year from that date, that is, until September 8, 2010

to file a timely PCRA petition.          Therefore, his current petition, filed on

October 22, 2015, is facially untimely. Because Duckett failed to allege or

prove any of the time-bar exceptions, we conclude that his petition was

untimely, and the PCRA court lacked jurisdiction to entertain it.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017




____________________________________________


       4
        Duckett had 90 days after the Pennsylvania Supreme Court denied
his petition for allowance of appeal to file a petition for a writ of certiorari
with the Supreme Court of the United States. See U.S. S. Ct. R. 13.




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