J-S02028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA :             IN THE SUPERIOR COURT OF
                                 :                  PENNSYLVANIA
                                 :
             v.                  :
                                 :
                                 :
    FERNANDO LUIS RIVERA         :
                                 :
                  Appellant      :             No. 2468 EDA 2017

                        Appeal from the Order July 6, 2017
       In the Court of Common Pleas of Lehigh County Criminal Division at
                         No(s): CP-39-CR-0004257-2004


BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY NICHOLS, J.:                       FILED FEBRUARY 27, 2018

        Appellant Fernando Luis Rivera appeals pro se from the order denying

his petition for writ of habeas corpus. Appellant claims that his conviction is

void because he was not formally charged with third-degree murder.          We

conclude that Appellant’s petition should have been filed under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, and affirm the order

denying relief.1

        In 2004, Appellant was charged with two counts of criminal homicide,

two counts of robbery, one count of possessing an instrument of crime, and



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*   Retired Senior Judge assigned to the Superior Court.

1 We may affirm the decision of the trial court on any basis.               See
Commonwealth v. Beck, 848 A.2d 987, 991 n.8 (Pa. Super. 2004).
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one count of criminal conspiracy.2 On May 27, 2008, the trial court granted

the Commonwealth’s motion for leave to amend the information to include the

full last name of one of the victims and to change the criminal homicide

charges to third-degree murder.3               See Docket at 28.   That same day,

Appellant, who was represented by counsel, entered a negotiated guilty plea

to two counts of third-degree murder. See N.T., 5/27/08, at 2, 18, 20-21.

Pursuant to the plea agreement, the trial court sentenced Appellant to two

consecutive terms of twenty to forty years’ incarceration.

        On February 1, 2011, Appellant filed a first PCRA petition. The PCRA

court denied Appellant’s PCRA petition on August 10, 2011, and this Court

affirmed on December 28, 2012. See Commonwealth v. Rivera, 2495 EDA

2011 (Pa. Super. filed Dec. 28, 2012) (unpublished memorandum).

        On May 8, 2017, Appellant filed a pro se petition for writ of habeas

corpus, which the court denied due to a “deficient filing.” On June 21, 2017,

Appellant filed the instant pro se petition for writ of habeas corpus claiming

that his conviction is void because the criminal information charged him with

criminal homicide generally and not third-degree murder.

        The court denied Appellant’s petition as meritless on July 6, 2017,

reasoning:


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2   18 Pa.C.S. §§ 2501, 3701(a)(1)(i), 907(a), and 903(a)(1)(2), respectively.

318 Pa.C.S § 2502(c). Specifically the amendment of the information changed
the “section, subsection and grading” for counts 1 and 2 to “2502(c) F-1.”

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         “A criminal information must inform the defendant of the crime
      with which he is charged and must be read in a common sense
      manner.” Commonwealth v. McMullen, 616 A.2d 14, 15-16
      (Pa. [Super.] 1992) (citations omitted). An information will be
      regarded as sufficient in law provided it serves to notify the
      accused of the charges filed against him.             Id., citing
      Commonwealth v. Williams, 470 A.2d 1376 (Pa. Super. 1984).
      “A criminal information need not specify a degree of murder or the
      degrees of manslaughter in order to sustain the verdict of . . .
      murder.” Commonwealth v. Chambers, 852 A.2d 1197, 1199
      (Pa. 2004).

Order, 7/6/17, at 1-2 (emphasis omitted).

      Appellant timely appealed to this Court on July 26, 2017. The court did

not order Appellant to submit a Pa.R.A.P. 1925(b) statement, but filed a Rule

1925(a) opinion in which it relied on the reasoning it provided in its July 6,

2017 order.

      Appellant’s sole question on appeal is: “Are Appellant’s convictions void

as he was never formally charged with the offenses to which he pleaded guilty

to?” Appellant’s Brief at 4 (full capitalization omitted).

      Initially, we consider whether Appellant’s petition should be regarded as

a petition for writ of habeas corpus or under the PCRA. This is a question of

law for which our standard of review is de novo and our scope of review

plenary. See Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010).

      This Court has explained that the PCRA is intended to be the sole means

of achieving post-conviction relief. See Commonwealth v. Taylor, 65 A.3d

462, 465 (Pa. Super. 2013); see also 42 Pa.C.S. § 9542.             The PCRA

“encompasses all other common law and statutory remedies for the same

purpose that exist when this subchapter takes effect, including habeas corpus


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and coram nobis.” 42 Pa.C.S. § 9542. While “the common law writ of habeas

corpus has not been eliminated,” a petitioner who wishes to raise an issue

that is cognizable under the PCRA must do so in a timely PCRA petition.

Taylor, 65 A.3d at 466 & n.3.

       Appellant asserts that his claims are not cognizable under the PCRA.

Appellant’s Brief at 1. Appellant claims that the allegedly defective information

violated his due process rights to notice of the specific charges and an

opportunity to be heard. Id. at 8. He also claims that the trial court lacked

the authority to amend the information or accept his plea to uncharged

offenses. Id. at 6.

       A claim concerning a defect in the criminal information implicates the

truth-determining process. See Chambers, 852 A.2d at 1199 (affirming the

denial of an appellant’s PCRA petition claiming that he was not specifically

charged with second-degree murder because the criminal information charged

him with criminal homicide generally under 18 Pa.C.S. § 2501). A claim that

a court lacked the authority to accept a guilty plea to uncharged offenses is

cognizable under 42 Pa.C.S. § 9543(a)(2)(viii).

       Therefore, Appellant’s claims fall within the ambit of the PCRA.

Consequently, Appellant’s petition for a writ of habeas corpus must be treated

as a PCRA petition, his second.4 See Taylor, 65 A.3d at 466.

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4 Because this is Appellant’s second PCRA petition, there is no automatic right
to counsel for a second PCRA petition. See Commonwealth v. Haag, 809
A.2d 271, 293 (Pa. 2002).

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       “[T]he timeliness of a PCRA petition is a jurisdictional requisite.”

Commonwealth v. Brown, 111 A.3d 171, 175 (Pa. Super. 2015) (citation

omitted). A PCRA petition filed more than one year after the judgment of

sentence becomes final is untimely, unless it meets one of the three statutory

exceptions to the PCRA time bar.           See 42 Pa.C.S. § 9545. The petitioner

bears the burden of pleading and proving an exception to the PCRA time bar.

Taylor, 65 A.3d at 468. This Court must review whether a PCRA petition

meets the timeliness requirements of the PCRA regardless of the petition’s

title or the PCRA court’s decision to address the merits of the underlying claim.

See id. (providing that where the trial court should have treated a habeas

corpus petition as a PCRA petition but did not do so, the petitioner still had to

meet the PCRA’s timeliness requirements).

       Instantly, Appellant has not raised any exceptions to the PCRA time bar

in his petition or in this appeal. Our own review reveals no basis to conclude

that any of the timeliness exceptions to the PCRA time bar would apply.

Accordingly, Appellant’s petition is untimely, and we are without jurisdiction

to review the merits of his claim. See id.5
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5 Because the PCRA court addressed the merits of Appellant’s petition for writ
of habeas corpus, it did not issue a notice of its intent to dismiss or otherwise
afford Appellant an opportunity to amend his petition. See Pa.R.Crim.P.
905(B), 907(1). However, the absence of a Rule 907 notice does not
automatically require relief “where the petition is untimely” and “where the
claim is record-based and our review indicates that the issue does not fall
within a timeliness exception.” Taylor, 65 A.3d at 468.




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       Order affirmed.6

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/18




____________________________________________


6 Even if Appellant had timely challenged the alleged defect in the information,
no relief would be due. As noted by the PCRA court, the criminal information
sufficiently put him on notice of the charges to which he later pled guilty. See
Chambers, 852 A.2d at 1199. Moreover, Appellant’s guilty plea constituted
waiver of his right to challenge the information. See Commonwealth v.
Jones, 929 A.2d 205, 212 (Pa. 2007).               Lastly, as noted by the
Commonwealth, the trial court granted the Commonwealth’s motion to amend
the information to include two counts of third-degree murder.

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