J-S74034-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    HARRY LEO LICIAGA                          :
                                               :
                       Appellant               :   No. 1305 EDA 2018

              Appeal from the PCRA Order Entered March 28, 2018
      In the Court of Common Pleas of Lehigh County Criminal Division at
                        No(s): CP-39-CR-0003464-1989


BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                            FILED MARCH 05, 2019

        Appellant Harry Leo Liciaga appeals pro se from the order denying his

fourth petition filed under the Post Conviction Relief Act (“PCRA”).1 The PCRA

court dismissed his petition. We affirm on the basis that the petition was

untimely.

        A full recitation of the facts is not necessary for our disposition. In short,

Liciaga was convicted of second-degree murder and related crimes2 in 1990,

and sentenced to imprisonment for life. Liciaga appealed, and we affirmed his



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1   See 42 Pa.C.S.A. §§ 9541-9546.

2 Liciaga was convicted following a jury trial of second degree murder,
burglary, criminal trespass, theft by unlawful taking, receiving stolen property,
and criminal conspiracy. See 18 Pa.C.S.A. §§ 2502(b), 3502, 3503(a)(1)(ii),
3921(a), 3925(a), and 903(a), respectively.
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judgment of sentence in 1996.3 Liciaga thereafter filed multiple PCRA petitions

and a petition for writ of habeas corpus, none of which resulted in relief.4

       Liciaga filed the instant petition pro se on February 7, 2018, as a petition

for habeas corpus relief. The court below treated the petition as a serial PCRA

petition, and, after notifying Liciaga of its intent to do so, dismissed the

petition.

       Liciaga appealed, and presents the following issue:

            Whether the trial court abused its discretion in dismissing
            [Liciaga’s] Petition for Habeas Corpus Relief since his
            confinement is based on a second[-]degree murder
            conviction without specific notice required by Statutory
            Provision that he was being charged pursuant to 18 Pa.C.S.
            § 2502(b) in violation of his right to due process[,] and the
            trial court had jurisdiction to decide the petition [as it] raises


____________________________________________


3 See Commonwealth v. Liciaga, No. 429 PHL 1995 (Pa.Super. 1996)
(unpublished memorandum).

4  Liciaga filed his first petition in 1997; it was denied, and we affirmed its
denial in 1999. See Commonwealth v. Liciaga, 748 A.2d 1252 (Pa. Super.
1999) (unpublished memorandum). He filed a second petition in 2003, and a
purported third petition in 2012. We quashed the appeal from the dismissal of
his purported third petition in 2013, because he had filed that petition pro se
while represented by counsel, and the petition was therefore a nullity. See
Commonwealth v. Liciaga, 83 A.3d 1069 (Pa.Super. 2013) (unpublished
memorandum). Liciaga filed a petition for writ of habeas corpus in 2015. We
affirmed denial of relief on that petition in 2016. See Commonwealth v.
Liciaga, 144 A.3d 216 (Pa.Super. 2016) (unpublished memorandum). Liciaga
filed another petition for writ of habeas corpus in 2016, which the court
correctly treated as his third PCRA petition. We affirmed the dismissal of that
petition in 2017, and the Pennsylvania Supreme Court denied Liciaga’s petition
for allowance of appeal. See Commonwealth v. Liciaga, 168 A.3d 341
(Pa.Super. 2017) (unpublished memorandum), appeal denied, 178 A.3d 103
(Pa. 2018).

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         the claim of illegal confinement based on a trial and
         sentencing proceeding that violated due process?

Liciaga’s Br. at 3 (italics added).

      Liciaga argues that the Commonwealth failed to provide notice in the

criminal information that it was charging him with second-degree murder

under 18 Pa.C.S.A. § 2502(b), and that this absence of notice violated his

right to due process, divested the trial court of subject matter jurisdiction,

denied his right to a fair trial, and resulted in an unlawful sentence. Liciaga’s

Br. at 8-10, 12, 15-16. Liciaga further argues that his habeas corpus petition

should not be treated as a PCRA petition, because “a denial of due process by

proceedings that [did] not comport to statute was not [a claim] subsumed

under the PCRA[.]” Id. at 13. And, he asserts, as his petition was not a PCRA

petition, the PCRA’s time limitations should not apply to bar review of the

merits of his claim. Id. at 13, 15. Liciaga alternatively argues that the PCRA’s

time limitations should not apply to his case because his judgment of sentence

was “a nullity, non-existent and void ab initio due to the aforementioned Due

Process violation.” Id. at 14 (italics added).

      Upon a challenge to the denial of PCRA relief, we determine whether the

PCRA court’s conclusions are supported by the record evidence and free of

legal error. Commonwealth v. Burton, 121 A.3d 1063, 1067 (Pa.Super.

2015). We review the legal determinations of a PCRA court under a de novo

standard. Id.




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      The PCRA is intended to provide the “sole means of obtaining collateral

relief, . . . encompass[ing] all other common law and statutory remedies” for

collateral relief, including habeas corpus. 42 Pa.C.S.A. § 9542. Therefore,

“[i]ssues that are cognizable under the PCRA must be raised in a timely PCRA

petition and cannot be raised in a habeas corpus petition.” Commonwealth

v. Taylor, 65 A.3d 462, 465-66 (Pa.Super. 2013) (citation omitted).

      Liciaga claims that he lacked formal notice of the charges against him.

Such a claim can be construed as a challenge to the trial court’s jurisdiction.

See Commonwealth v. Serrano, 61 A.3d 279, 287 (Pa. Super. 2013). The

PCRA provides relief for this issue. See 42 Pa.C.S.A. § 9543(a)(2)(viii). In

addition, Liciaga’s claim that he lacked notice could be construed as a violation

of the federal and state constitutions. See Commonwealth v. Chambers,

852 A.2d 1197, 1198 (Pa.Super. 2004). This issue is also cognizable under

the PCRA. See 42 Pa.C.S.A § 9543(a)(2)(i). Insofar as his trial counsel failed

to lodge a timely objection to the lack of notice at the time of trial, Liciaga’s

claim is additionally cognizable under the PCRA as claim of ineffective

assistance of counsel. See 42 Pa.C.S.A. § 9543(a)(2)(ii). Therefore, Liciaga’s

collateral attack on his sentence is cognizable under the PCRA, and we

conclude that the trial court correctly construed Liciaga’s petition for habeas

corpus relief as a PCRA petition.

      A PCRA petition must be filed within one year from the date the

petitioner’s judgment of sentence becomes final, unless an enumerated


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exception to the time-bar applies. Id. at § 9545(b)(1). A judgment of

sentence becomes final at the conclusion of direct review or the expiration of

time for seeking review. Id. at § 9545(b)(3). “The PCRA’s time restrictions

are jurisdictional in nature. Thus, if a PCRA petition is untimely, neither [an

appellate court] nor the trial court has jurisdiction over the petition.”

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010) (quoting

Commonwealth v. Chester, 895 A.2d 520, 522 (Pa. 2006), brackets

ommitted); see also 42 Pa.C.S.A. § 9545(a).

       Liciaga’s judgment of sentence became final in 1996, after we affirmed

his judgment of sentence on direct appeal, and the time period for seeking

review of our disposition with the Supreme Court expired. Thus, his petition,

filed in 2018, is facially untimely. Liciaga does not argue that any of the

statutory exceptions to the time-bar apply. Therefore, the PCRA court lacked

jurisdiction to entertain Liciaga’s petition, and dismissal was proper.5

       Although Liciaga argues that his sentence was void ab initio, the PCRA

court did not have jurisdiction to examine the merits of an attack on his

conviction unless Liciaga’s petition was timely under the confines established

by the PCRA. As explained above, the PCRA dictates that “[f]or the purposes



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5While the PCRA court denied Liciaga’s petition on the basis that he “failed to
establish a prima facie showing” that he was eligible for relief, see Order,
3/6/18, at 2, we can affirm the court’s order on alternative grounds.
Commonwealth v. Clouser, 998 A.2d 656, 661 n.3 (Pa.Super. 2010).


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of this subchapter, 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.A. § 9545(b)(3) (emphasis added). As the

time for seeking direct review had concluded, Liciaga’s judgment of sentence

was final for purposes of determining timeliness under the PCRA.

     We observe that had the petition been timely, no relief would be due.

Liciaga complains that the Commonwealth did not include the charge of

second-degree murder, under 18 Pa.C.S.A. § 2502(b), on the charging

document. A review of the certified record reveals that the Commonwealth

charged Liciaga with criminal homicide under 18 Pa.C.S.A. § 2501. We have

previously held that “[a]n information need not specify a degree of murder or

the degrees of manslaughter in order to sustain the verdict of second degree

murder.” Chambers, 852 A.2d at 1199.

     Regardless, we affirm the PCRA court’s dismissal of Liciaga’s petition on

the basis that it was untimely according to the jurisdictional requirements of

the PCRA.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/5/19




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