J-S75044-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
             v.                             :
                                            :
WILLIAM E. NEAL,                            :
                                            :
                   Appellant                :            No. 937 EDA 2016

                 Appeal from the PCRA Order February 29, 2016
             in the Court of Common Pleas of Philadelphia County,
              Criminal Division, No(s): CP-51-CR-0929151-1993

BEFORE: BOWES, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                       FILED DECEMBER 29, 2016

        William E. Neal (“Neal”), pro se, appeals from the Order denying his

fifth Petition for Relief filed pursuant to the Post Conviction Relief Act

(“PCRA”).1 We affirm.

        After a bench trial, Neal was found guilty of second-degree murder,

robbery and possession of an instrument of crime.             See 18 Pa.C.S.A.

§§ 2502(b), 3701, 907. In its Opinion, the PCRA court set forth the relevant

procedural history following Neal’s conviction, which we adopt for the

purpose of this appeal.    PCRA Court Opinion, 2/29/16, at 1-2.        The PCRA

court denied the instant Petition, Neal’s fifth, as untimely filed. Id. at 2.

        On appeal, Neal claims that the PCRA’s timeliness requirement does

not apply, as he has filed a Petition for habeas corpus relief.         Brief for

Appellant at 4. Neal claims that his sentence is illegal and unconstitutional,



1
    42 Pa.C.S.A. §§ 9541-9546.
J-S75044-16


and that all prior counsel were ineffective for not raising the claim. Id. Neal

also challenges the “discretionary aspects of [his] sentence,” and raises

several constitutional challenges to sections of the Crimes Code. Id. at 5.

Neal does not allege any exceptions to the PCRA’s timeliness requirement.

      In its Opinion, the PCRA court concluded that, because Neal failed to

assert an exception to the PCRA’s timeliness requirement, the court was

without jurisdiction to rule on his Petition. PCRA Court Opinion 2/29/15, at

2-6. We agree with the sound reasoning of the PCRA court, as set forth in

its Opinion, and affirm on this basis. See id.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/29/2016




                                  -2-
                                                                                        Circulated 11/30/2016 12:26 PM




                            IN THE COURT OF COMMON PLEAS
                       FIRST JUDICIAL DISTRlCT OF PENNSYLVANIA
                           TRIAL DIVISION-CRIMINAL SECTION

COMMON\VEAL TH OF PENNSYLVANIA




                         v.

WILLIAM NEAL                                                                  CP.-5 l-CR-929-151-1993·

                                         MEMORANDUM OPINION

MINEHART,J

       The Post Conviction Relief Act Petition filed on March 12, 2012, is to be dismissed for

the reasons set forth below.'

                                    I.       PROCEDURAL HISTORY

       On July 29, 1994, after a bench trial presided over by the Honorable James A.

Lineberger, Petitioner was found guilty of second degree murder, robbery, and possessing an

instrument of crime. He was sentenced to a term of life imprisonment for the second degree

murder conviction plus a sentence of six to twelve months for possessing an instrument of crime.

On direct appeal, the Superior Court affirmed the judgment of sentence in part and remanded for

a determination as to whether trial counsel had provided effective assistance of counsel, See

Commonwealth. v. Neal, 688 A.2d 1229 (Pa. Super. 1996). On reinand, the trial court determined

that Petitioner was not entitled to relief. The Superior Court affirmed, and the Supreme Court

denied allowance of appeal on November 6, 1998. See Commonwealth v. Neal, 724 A.2d 958

(Pa. Super. l 998), appeal denied; 732 A.2d 614 (Pa. 1998).

        On July 28, 1999, Petitioner filed his first petition for post conviction relief. Counsel was


 I
  This Order and Opinion was issued more than twenty days after Petitioner was served with notice of the
forthcoming dismissal of _his Post Conviction Relief Act petition. Pa.R.Crim.P. 907.
appointed. Counsel filed an amended petition on July 12~ 2001 . Judge Lineberger dismissed

Petitioner's first petition and permitted counsel to withdraw from the case on January 1 7, 2002.

Petitioner appealed and on November 12, 2003, the Superior Court affirmed the dismissal of~he

petition. See Commonwealth ". Neal, 841 A.2d 576 (Pa. Super. 2003), appeal denied, 847 ~-2d

1282 (Pa. 2004 ). Allocatur was not sought.

        Now Petitioner files the instant petition, his fifth. Again, after conducting an exhaustive

review of the record and applicable case law, it is the determination that Petitioner's petition for

post conviction collateral relief is untimely filed. Therefore, there is no jurisdiction to consider

the merits of Petitioner's petition.

                                                II.      DISCUSSION

         On March 12, 2012,2 Petitioner filed a Petition for Writ of Habeas Corpus and insists that

the one-year time limitation of the Post Conviction ·Relief Act should not apply to his most recent

request for post-conviction collateral relief because he filed a writ of habeas corpus and not a

PCRA petition. The Post Conviction Relief Act states in 42 Pa.C.S.A. § 9542 that it "shall be

the sole means of obtaining collateral relief and encompasses all other common law and statutory

 remedies ... including habeas corpus and comm no bis." Nevertheless, a writ of habeas corpus

 remains viable as a means to obtain post-conviction collateral relief if the claim raised therein is

 not cognizable under the PCRA. See Commonwealth v. Judge, 916 A.2d 5 I 1, 518-21 (Pa. 2007)

 (holding that because PCRA did not provide remedy under the PCRA, a claim regarding.

 extradition raised in a habeas petition was cognizable) .

 .,                                                                   .
 "Pursuant to Commonwealth v. Lark, 560 Pa. 487, 493, 746 A.2d 585, 588 (2000), when a PCRA appeal is pending
 before a court, a subsequent PCRA petition cannot be filed until the resolution of review of the pending PCRA
 petition by the highest state court in which review is sought, or upon the expiration of the time for seeking such
 review. The docket reveals that when Petitioner filed his March 12, 2012, petition, the appeal of his fourth PCRA
 petition was pending. However, since the petition did not reach initial review status until after the Supreme Court
 had filed their decision affirming the dismissal of his fourth PCRA petition, this petition was accepted as a filing and
 will be reviewed as his fifth petition for post trial relief.

                                                            2
       Instantly, Petitioner claims he is serving an illegal sentence due to ineffective assistance

of counsel. Specifically, Petitioner states that prior counsel should have raised a claim

challenging the sentence due to lack of statutory authorization. Claims arguing the ineffective

assistance of counsel are cognizable under the PCRA_pursuant to 42 Pa.C.S.A.                 § 9543(a)(2)(ii),

and claims arguing that the sentence is above the lawful maximum are cognizable pursuant to 42

Pa.C.S.A. § .9543(a)(2)(vii). As these claims can be raised under the PCRA, Petitioner's filing

will be considered a petition for relief pursuant to the PCRA.

        After a conviction becomes final, a petitioner has one year to file a post conviction

petition. 42 Pa.C.S.A. § 9545(b)(1 ). A judgment is deemed 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 review." 42 Pa.C.S.A. §

9545(b)(3). Petitioner's conviction became final on February 6, 1999, upon the expiration of the

90-day period in which he could have requested allocator in the United States Supreme Court.

Therefore, on its face, Petitioner's March 12, 2012 petition is clearly untimely unless it properly

invokes one of the enumerated exceptions to the one-year limitation.' The three exceptions to the

one-year limitation as enumerated in 42 Pa.C.S.A. §9545 (b)(l)(i)-(iii) are:

         (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 we're 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.


 3
  Petitioner does not benefit from the grace period provided for petitioners whose judgment of sentence became final
 prior to the effective date of the 1995 amendments to the PCRA. The grace period only applies to first PCRA
 petitions that were filed by January 16, 1997. See Commonwealth v, Alcorn, 703 A.2d 1054 (Pa. Super. 1997).

                                                          3
        TI1e PCRA' s time limit is mandatory and jurisdictional. Commonwealth v.

Beasley, 741 A.2d 1258 (Pa. 1999). Thus, a court has no Jurisdiction to consider the

merits of the petition if it is untimely filed and the petitioner does not prove one of the

three exceptions to the time limits of the PCRA. Commonwealth v. Gamboa-Taylor, 753

A.2d 780, 785 (Pa. 2000). Furthermore, allegations of ineffective -assistance of counsel

alone will not overcome the PCRA timeliness requirements. Commonwealth v. Edmiston,

65 A.3d 339 (Pa. 2013).

        Petitioner argues that the sentencing court did not have the statutory authority to sentence

him to life imprisonment, and that his counsel was ineffective for not raising this claim earlier.

Additionally, Petitioner requests· a hearing on his claims.4 Despite Petitioner's insistence that he ·

is entitled to relief, he has failed to place his claims under one of the timeliness exceptions.

Tims, there is no jurisdiction to address the merits of his claim, which includes deciding whether

an evidentiary hearing should be granted.5

          Petitioner claims he is entitled to relief from his sentence based on the fact that the

Department of Corrections does not possess a Sentencing Order containing statutory

authorization for the continued detention of Petitioner and therefore, he is subject to an illegal

sentence."    First, to determine whether his claim should be treated as a PCRA petition or a writ

 of habeas corpus, the Superior Court offers guidance in its decision in Joseph v. Glunt, 96 A.3d

 365, 367 appeal denied, 101 A.3d 787 (Pa. 2014). In Glunt, the Superior Court held that a claim
                                                      ..
 4
   Petitioner requested a hearing in his filings of May 29, 2015, June 26, 2015, and October 15, 2015.               ·
 5
   Petitioner's amended petitions filed January 4, 2013, February 12, 2013, April 10, 2013, May 2, 2013, June 14,
 2013, July 24, 2013, June 26, 2015 (Response to 907), and filing of September 8, 2015 raises an identical claim of
 an illegal sentence due to lack of statutory authority for a life sentence. Additionally, he raised this claim in his
 filings September 3, 2013, May 28, 2014, August 27, 2014, and December 29, 2014. but these filings also contained
 another claim of an iilegal sentence due to the Department of Corrections not possessing the sentencing order, which
 will be addressed in the next section of the discussion.
 6As
      stated in the prior footnote, Petitioner raised this claim in his amended filings of September 3, 2013, May 28,
 2014, August 27, 2014, and December 29, 2014.

                                                           4
identical to the instant one was not cognizable under the PCRA and was properly raised in a writ

of habeas corpus. Nonetheless, it is suggested that petitioner be denied ~eliefbecause there is no

merit to his claim. A review of the record confirms that petitioner was sentenced by Judge

Lineberger to a life sentence on July 29, 1994. Thus, it does not matter whether the Department

of Corrections possesses a copy of a written sentencing order for Petitioner. Moreover, Petitioner

fails to prove how the missing documentation establishes that he is being held under an illegal

sentence. The fact that there is no commitment form does not entitle him to any relief when the

Department of Corrections had continuous authority to detain Petitioner.                   See Joseph v. Glunt .."

supra (holding that the fact that the Department of Corrections (DOC) did not possess sentencing

order did not entitle appellant to habeas relief).

         in his February 4, 2016      Amended PCRA Petition, Petitioner states he is entitled to relief

pursuant to the United States Supreme Court's recent decision in Montgomery v. Louisiana, 577

U.S. __      (2016), which is a case that affects the retroactivity of the Court's previous decision

in Miller v. Alabama, 132 S. Ct. 2455 (2012). In Miller v. Alabama, 132 S. Ct. at 2460, the

United States Supreme Court held that "mandatory life without parole for those under the age of

 18 at the time of their crimes violates the Eighth Amendment's prohibition against 'cruel and

unusual punishments. '" However, Miller did not state whether this holding announced a

 constitutional right that applies retroactively as to constitute a timeliness exception to the PCRA ·

 pursuant to 42 Pa.C.S.A. §9545 (b)(l)(iii). In Montgomery, the United States Supreme Court

 clarified their earlier ruling and stated that Miller had announced a new substantive rule that,

                                                                                       7
 under the Constitution, is retroactive in cases on state collateral review.


 7ln
    addition, on February 9, 2016, following Montgomery, the Pennsylvania Supreme Court issued a decision in
 Commonwealth v. Secreti, 578 WDA 2015 (Pa.Super., 2/9116),which held that (1) Miller applied retroactively to
 Secreti's sentence under the PCRA's retroactivity provision, 42 Pa.C.S. § 9545(b)(1 )(iii); (2) Secreti's sentence was
 unconstitutional under Miller, and (3) Secreti was entitled to a new sentencing hearing.

                                                           5
         Petitioner is correct that Montgomery affords relief to juvenile defendants sentenced toa

mandatory life sentence for a homicide offense. Petitioner is mistaken in asserting that be is

entitled to relief. Even though Petitioner was convicted for.a homicide, the record reveals, and

Petitioner folly admits, 8 that he was twenty years old at the time of the offense, thus putting him

outside the ambit of Montgomery and Miller. Therefore, Petitioner is not entitled to relief on this

claim,

         Lastly, in his February 4, 2016 amended filing, Petitioner raises multiple claims attacking

the testimony of trial witnesses, asserting that the evidence was not sufficient to support the

conviction for murder and robbery. Petitioner states these claims should be considered but fails

to invoke any of the exceptions to the timeliness provision. Therefore, there is no jurisdiction to

consider the merits of this claim.9

         In summary, Petitioner's argument does not warrant any grant of relief. Therefore, the

following Order is given:




 8
  Petitioner's Amended PCRA Petition, 2/4/16, unnumbered p. 4.
 9
  ln addition, Petitioner raised these same claims in his last petition, namely his PCRA petition filed October 29,
 2009. These claims were dismissed as untimely May 19, 2011, and the Superior Court affirmed the dismissal on
 October 27, 2011. Pursuant to pursuant to section 9543 of the PCRA, a petitioner is eligible for relief only if "the
 allegation of error has not been previously litigated or waived." 42 Pa.C.S.A. § 9543(a)(3). Pursuant to section 9544
 of the PCRA, "an issue has been previously litigated if ... it has been raised and decided in a proceeding collaterally
 attacking the conviction or sentence." 42 Pa.C.S.A. § 9544(a)(3). Therefore, even if these claims had been timely,
 Petitioner is not eligible for relief on these claims.

                                                           6
    IN THE COURT OF COMMON PLEAS OF PHILADELPHIA                              COUNTY
            FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                TRIAL DIVISION - CRIMINAL SECTION



COMMON\VEALTH            OF
PENNSYLVANIA,                                           CP"Sl-CR-929151-1993

            v.

VilLLIAM NEAL,         Defendant.



                                           ORDER


       AND NOW, this                    day of   fe br U-1.r 'f     , 2016, upon consideration of

Petitioner's Post Conviction Relief Act Petition, and all supplemental petitions, and Petitioner's

Response to the Notice oflntent to Dismiss Pursuant to Pa.R.Crim.P. 907, it is hereby ORDERED

and DECREED that Petitioner's Post Conviction Relief Act Petition, is DIS1\1ISSEDAS

UNTIMELY, and Petitioner's Petition for Writ of Habeas Corpus is DENIED.




                                                     (- MINEHART, J.
