J-S36040-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    JOSEPH P. FRANKENBERRY                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    COMMONWEALTH OF                            :   No. 14 WDA 2020
    PENNSYLVANIA, DR. MARSH,                   :
    SUPERINTENDENT AT S.C.I.                   :
    BENNER; AND THE ATTORNEY                   :
    GENERAL OF PENNSYLVANIA

               Appeal from the Order Entered December 17, 2019
     In the Court of Common Pleas of Fayette County Civil Division at No(s):
                               2536 of 2019 GD


BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                          FILED AUGUST 19, 2020

        Joseph P. Frankenberry (Frankenberry) appeals from the December 17,

2019 order of the Court of Common Pleas of Fayette County (PCRA court)

dismissing his application for writ of habeas corpus. Because his application

is properly construed as an untimely petition pursuant to the Post-Conviction

Relief Act (PCRA),1 we affirm.

        We briefly recount the procedural history of this case.      In 1981,

Frankenberry was convicted following a jury trial of first-degree murder and

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*   Retired Senior Judge assigned to the Superior Court.

1   42 Pa.C.S. § 9541 et seq.
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the following year he was sentenced to life imprisonment. This court affirmed

the judgment of sentence in 1984 and in 1985, our Supreme Court denied

Frankenberry’s petition for allowance of appeal.          Commonwealth v.

Frankenberry, 778 WDA 2018, at *1 (Pa. Super. April 26, 2019). Since that

time, Frankenberry has filed four PCRA petitions.       Id.     We affirmed the

dismissal of his most recent PCRA petition in 2019 finding that it was untimely.

Id. at *6.

      Frankenberry commenced the instant civil action by filing an application

for writ of habeas corpus in the PCRA court on November 13, 2019. In the

application, Frankenberry contended that his sentence was illegal because the

sentencing court imposed a sentence of “natural life” in prison, when the

statute governing sentences for first-degree murder only authorizes a

sentence of life imprisonment.    See 18 Pa.C.S. 1102.        He argues that his

sentence is illegal because the legislature has never authorized the courts to

impose a sentence of “natural life” imprisonment.

      On December 17, 2019, the PCRA court dismissed the application with

prejudice. On January 2, 2020, Frankenberry timely filed a notice of appeal

and he subsequently filed a concise statement in accordance with Pa.R.A.P.

1925(b).     The PCRA court filed a responsive statement finding that the

dismissal was proper for two independent reasons.       First, it found that an

application for writ of habeas corpus should have been filed in the judicial

district where Frankenberry is incarcerated, not the district where he was


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convicted. In the alternative, the PCRA court found that Frankenberry sought

relief that was cognizable under the PCRA and was subject to that statute’s

jurisdictional time bar. 42 Pa.C.S. § 9545(b). Noting that Frankenberry’s

conviction became final in the mid-1980s, the PCRA court concluded the

petition was untimely.

      On appeal, Frankenberry contends that his sentence was illegal and that

the court was not empowered by statute to impose a sentence of “natural life”

in prison as opposed to life in prison.

      The phrase ‘illegal sentence’ is a term of art in Pennsylvania Courts
      that is applied to three narrow categories of cases. Those
      categories are: “(1) claims that the sentence fell ‘outside of the
      legal parameters prescribed by the applicable statute’; (2) claims
      involving merger/double jeopardy; and (3) claims implicating the
      rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348,
      147 L.Ed.2d 435 (2000).”

Commonwealth v. Munday, 78 A.3d 661, 664 (Pa. Super. 2013) (citations

omitted). Frankenberry’s claim falls within the first category, as he contends

that the sentencing statute did not provide the court with the legal authority

to impose a sentence of “natural life” in prison.

      A court must construe any motion filed after a defendant’s judgment of

sentence   becomes    final   as   a   petition   filed   pursuant   to   the   PCRA.

Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011). We have

previously held that an application for writ of habeas corpus must be treated

as a petition pursuant to the PCRA if it seeks relief cognizable under that

statute:


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       Unless the PCRA could not provide for a potential remedy, the
       PCRA statute subsumes the writ of habeas corpus. Issues that
       are cognizable under the PCRA must be raised in a timely PCRA
       petition and cannot be raised in a habeas corpus 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) (citations

& footnote omitted); see also 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.”). The PCRA statute provides the only means of relief for a

petitioner who raises a challenge to the legality of his sentence after his

judgment     of   sentence     has   become      final.   42   Pa.C.S.   §§   9542   &

9543(a)(2)(vii).

       Because Frankenberry’s illegal sentencing claim is cognizable under the

PCRA, he may only seek relief pursuant to that statute.2             Thus, we must

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2 Frankenberry relies on Commonwealth v. Smith, 194 A.3d 126 (Pa. Super.
2018), to support his argument that his application for writ of habeas corpus
is not cognizable under the PCRA. However, Smith is distinguishable. There,
the petitioner claimed that 18 Pa.C.S. § 1102 was void for vagueness because
the statute did not provide adequate notice that a sentence of life
imprisonment for first-degree murder would be a sentence of life without the
possibility of parole. Id. at 135. We concluded that this due process challenge
was not cognizable under the PCRA, as the petitioner did not contend that the
sentencing court had imposed a sentence above that authorized by statute.
Id. at 137. Because he argued that the legislature had not provided adequate
notice of the penalty for first-degree murder when it enacted the sentencing
statute, this constitutional claim was not a challenge to the sentencing court’s



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consider whether the petition is timely.3 “A PCRA petition, including a second

and subsequent petition, shall be filed within one year of the date the

underlying judgment becomes final.” Commonwealth v. Graves, 197 A.3d

1182, 1185 (Pa. Super. 2018) (citation omitted).       “[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 the review.” 42 Pa.C.S. § 9545(b)(3).

As Frankenberry’s sentence became final in 1985 and he did not file the instant

petition until November 13, 2019, his petition is facially untimely and he must

plead and prove one of the exceptions to the PCRA’s timeliness requirements.

       There are three exceptions to the PCRA’s jurisdictional time-bar:

       (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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authority. Id. at 137-38. Here, Frankenberry’s petition contends that the
sentencing court imposed an illegal sentence by stating on the record at
sentencing and in the sentencing order that Frankenberry was to be
imprisoned for his “natural life.” Thus, he argues that the sentencing court
exceeded its authority by imposing a sentence not specifically authorized by
statute. This falls within the category of “illegal sentences” for which relief
must be sought under the PCRA. Id. at 137.

3 Whether a PCRA petition is timely filed is a question of law over which our
standard of review is de novo and our scope of review is plenary.
Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations
omitted).

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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). In addition, a PCRA petitioner must present

a claimed exception within one year of the date the claim could have been

presented. 42 Pa.C.S.A. § 9545(b)(2).

     Frankenberry’s application did not plead any exceptions to the time bar,

as he contends only that his application should not be treated as a petition

pursuant to the PCRA. As Frankenberry has not pled or proven any exceptions

to the time bar, we conclude that his petition is untimely. Because neither

the PCRA court nor this court has jurisdiction to consider the merits of an

untimely PCRA petition, we affirm the order dismissing the petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2020




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