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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                                            :
                  v.                        :
                                            :
DANA EVERETT YOUNG                          :
                         APPELLANT          :
                                            :
                                            :      No. 1668 EDA 2016

                  Appeal from the PCRA Order May 10, 2016
               In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0000560-1983
                                         CP-39-CR-0000561-1983
                                         CP-39-CR-0000614-1983

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                               FILED APRIL 13, 2017

      Appellant, Dana Everett Young, appeals pro se from the May 10, 2016

Order entered in the Court of Common Pleas of Lehigh County dismissing his

Petition for Habeas Corpus Relief. We conclude Appellant’s habeas Petition

is actually an untimely eighth Petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.         After careful review, we

affirm on the basis that Appellant’s PCRA Petition is untimely and this Court,

thus, lacks jurisdiction to review the Petition.

      In September 1983, a jury found Appellant guilty of several offenses

based on sexual assaults he committed within ten days of each other against

two women in the same town.           On September 9, 1985, the trial court

sentenced Appellant to an aggregate term of 21 to 42 years’ incarceration.
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Appellant timely appealed to this Court, which remanded for an evidentiary

hearing on the issue of ineffective assistance of counsel.1 The trial court

denied relief on December 1, 1985, and Appellant did not file a direct

appeal. Thus, Appellant’s Judgment of Sentence became final on December

31, 1985. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P 903(a).

      Between 1995 and 2008, Appellant filed seven PCRA Petitions and the

PCRA court dismissed all of them. On March 11, 2014, Appellant filed a pro

se Petition for Habeas Corpus Relief, which the lower court dismissed as an

untimely PCRA Petition.   Upon appellate review, this Court concluded that

the lower court erroneously treated the Petition as a PCRA Petition, but

affirmed the lower court’s dismissal of the Petition on alternate grounds.

Commonwealth v. Young, No. 2426 EDA 2014 (Pa. Super. filed July 7,

2015) (unpublished memorandum).

      On February 8, 2016, Appellant filed the instant pro se Petition for

Habeas Corpus Relief, which the trial court treated as Appellant’s eighth

PCRA Petition. On April 12, 2016, the PCRA court issued notice of its intent

to dismiss without a hearing pursuant to Pa.R.Crim.P. 907.        Appellant

responded pro se on April 26, 2016.       On May 10, 2016, the PCRA court

dismissed Appellant’s Petition as untimely.


1
  At the time, ineffective assistance of counsel claims could be raised on
direct appeal, because the issue arose several years prior to
Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002), which requires
that ineffectiveness claims be raised in a PCRA petition.



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      Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant presents two issues for our review:

      1. Whether the trial court abused its discretion in dismissing
         Appellant’s Petition for Writ of Habeas Corpus Ad
         Subjiciendum where the verdict announced by the [c]ourt of
         guilty on the kidnapping offense was in error in that the court
         did not have jurisdiction of the matter, where the Criminal
         Information filed in this action were [sic] fatally defective
         since if [sic] failed to recite all of the essential elements of the
         offense and failed to inform Appellant of the precise charge he
         was required to defend against at trial?

      2. Whether Appellant is illegally confined based on the verdict
         and sentence being vitiated and non-existent as a result of
         the fatally defective Criminal Information and eliminates all
         questions of waiver, timeliness and due diligence as bars to
         the relief sought?

Appellant’s Brief at 3.

      As an initial matter, we find that the PCRA court properly reviewed

Appellant’s Petition for Habeas Corpus Relief pursuant to the PCRA.             This

Court has “repeatedly held that the PCRA provides the sole means for

obtaining collateral review and that any petition filed after the judgment of

sentence    becomes       final   will   be    treated   as   a   PCRA   petition.”

Commonwealth v. Kubis, 808 A.2d 196, 199 (Pa. Super. 2002).

Specifically, the PCRA provides:

      This subchapter provides for an action by which persons
      convicted of crimes they did not commit and persons serving
      illegal sentences may obtain collateral relief. 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


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      this subchapter takes effect, including habeas corpus and coram
      nobis.

42 Pa.C.S. § 9542.     Moreover, our Supreme Court has stated, “both the

PCRA and the state habeas corpus statute contemplate that the PCRA

subsumes the writ of habeas corpus in circumstances where the PCRA

provides a remedy for the claim.” Commonwealth v. Hackett, 956 A.2d

978, 985 (Pa. 2008)

      In the instant case, Appellant challenges the trial court’s jurisdiction

and the legality of Appellant’s sentence alleging that Appellant’s criminal Bill

of Information was defective. These claims are cognizable under the PCRA

and are, therefore, properly raised in a PCRA Petition.      See 42 Pa.C.S. §

9543(a)(2)(vii) and (viii); see also Commonwealth v. Stout, 978 A.2d

984, 987 (Pa. Super. 2009) (claim that court lacked jurisdiction is cognizable

under the PCRA); Commonwealth v. Jackon, 30 A.3d 516, 521 (Pa.

Super. 2011) (legality of sentence is a cognizable issue under the PCRA).

This Court has clearly stated that an application for a writ of habeas corpus

cannot be used as a “tactical choice to evade the timeliness requirements of

the PCRA.”     Stout, supra at 988.     Accordingly, the PCRA court properly

reviewed Appellant’s filing under the PCRA and we will refer to it as a PCRA

petition hereafter.

      We review the denial of a PCRA Petition to determine whether the

record supports the PCRA court’s findings and whether its Order is otherwise

free of legal error.   Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.


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2014). There is no right to a PCRA hearing; a hearing is unnecessary where

the PCRA court can determine from the record that there are no genuine

issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.

Super. 2008).

      Before addressing the merits of Appellant’s claims, we must first

determine whether we have jurisdiction to entertain the underlying PCRA

Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)

(explaining that the timeliness of a PCRA Petition is a jurisdictional

requisite).

      Under the PCRA, any 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 of Sentence 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). The PCRA’s timeliness requirements are jurisdictional in nature,

and a court may not address the merits of the issues raised if the PCRA

petition was not timely filed. Commonwealth v. Albrecht, 994 A.2d 1091,

1093 (Pa. 2010).   Any second or subsequent petition, such as the instant

PCRA Petition, filed after the effective date of the 1995 amendments to the

PCRA “is governed by the PCRA as thus amended.”        Commonwealth v.

Yarris, 731 A.2d 581, 586 (Pa. 1999).



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      Here, Appellant’s Judgment of Sentence became final on December 31,

1985, when the thirty-day period for seeking appellate review expired. See

42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a). Appellant filed this eighth PCRA

Petition on February 5, 2016, more than thirty years after his Judgment of

Sentence became final. The PCRA court properly concluded that Appellant’s

Petition is facially untimely. PCRA Court Opinion, dated 7/27/16, at 1-2.

      Pennsylvania courts may consider an untimely PCRA petition, however,

if the appellant pleads and proves one of the three exceptions set forth in 42

Pa.C.S. § 9545(b), including:   (1) the failure to raise the claim previously

was the result of interference by government officials, (2) the claim is based

on facts that were not previously known the petitioner and could not have

been ascertained by the exercise of due diligence, or (3) the petition asserts

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).   Appellant failed to plead any of

these exceptions.

      The PCRA court properly found Appellant’s Petition to be facially

untimely under the PCRA.        Both the PCRA court and this Court lack

jurisdiction to entertain Appellant’s Petition. We, thus, affirm the denial of

PCRA relief.

      Order affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/13/2017




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