J-S66014-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

ROBERT WILSON DENT,

                         Appellant                   No. 813 MDA 2014


               Appeal from the Order Entered April 17, 2014
              In the Court of Common Pleas of Clinton County
            Criminal Division at No(s): CP-18-CR-0000156-2009


BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED OCTOBER 22, 2014

      Appellant, Robert Wilson Dent, appeals pro se from the April 17, 2014

order denying his “Petition for Habeas Corpus Relief Pursuant to Article I,

Section 14 of the Pennsylvania Constitution.” We affirm.

      On May 4, 2009, Appellant pled guilty to one count of aggravated

assault, a felony of the first degree. He was sentenced on June 8, 2009, to

a term of 78 months’ to 20 years’ incarceration.     Appellant did not file a

notice of appeal.   Thus, his judgment of sentence became final on July 8,

2009. See 42 Pa.C.S. § 9545(b)(3) (stating judgment of sentence becomes

final at the conclusion of direct review or the expiration of the time for

seeking the review); Pa.R.A.P. 903(a) (requiring notice of appeal to “be filed

within 30 days after the entry of the order from which the appeal is taken”).
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        Appellant filed a pro se PCRA petition on November 12, 2009, and

counsel was appointed. After conducting a hearing, the PCRA court denied

Appellant relief on May 26, 2010. Appellant filed a timely notice of appeal.

After this Court affirmed the order denying his PCRA petition, our Supreme

Court     denied    his    subsequent          petition   for   allowance   of   appeal.

Commonwealth v. Dent, 46 A.3d 813 (Pa. Super. 2012) (unpublished

memorandum), appeal denied, 55 A.3d 97 (Pa. 2012).

        On April 15, 2014, Appellant filed a pro se document entitled, “Petition

for Habeas Corpus Relief Pursuant to Article I, Section 14 of the

Pennsylvania Constitution.” Therein, Appellant maintained that his sentence

is illegal because the sentencing order does not state the statutory authority

underlying that sentence.         Two days later, on April 17, 2014, the court

issued an order denying Appellant’s petition.1 Appellant filed a timely pro se

notice of appeal, as well as a timely concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b).                On June 3, 2014, the court

issued a Rule 1925(a) opinion. On appeal, Appellant presents one question

for our review: “Whether the trial court abused its discretion in dismissing

Appellant’s petition for writ of habeas corpus ad subjiciendum?” Appellant’s

Brief at 3 (unnecessary capitalization omitted).
____________________________________________


1
  The court did not file a Pa.R.Crim.P. 907 notice of its intent to dismiss
Appellant’s petition. However, Appellant does not challenge that failure on
appeal and, thus, this issue is waived. See Commonwealth v. Williams,
909 A.2d 383, 384 n.4 (Pa. Super. 2006) (citation omitted).



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      Appellant primarily contends that the court erred by treating his

petition for writ of habeas corpus as a petition for relief under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We disagree. As

this Court has explained:

      It is well-settled that the PCRA is intended to be the sole means
      of achieving post-conviction relief. 42 Pa.C.S. § 9542;
      Commonwealth v. Haun, 613 Pa. 97, 32 A.3d 697 (2011).
      Unless the PCRA could not provide for a potential remedy, the
      PCRA statute subsumes the writ of habeas corpus.
      [Commonwealth v.] Fahy, [737 A.2d 214,] 223–224 [(Pa.
      1999)]; Commonwealth v. Chester, 557 Pa. 358, 733 A.2d
      1242 (1999). Issues that are cognizable under the PCRA must be
      raised in a timely PCRA petition and cannot be raised in a habeas
      corpus petition. See Commonwealth v. Peterkin, 554 Pa. 547,
      722 A.2d 638 (1998); see also Commonwealth v. Deaner,
      779 A.2d 578 (Pa. Super. 2001) (a collateral petition that raises
      an issue that the PCRA statute could remedy is to be considered
      a PCRA 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, 465-466 (Pa. Super. 2013).

      Here, in his petition, Appellant claimed that his sentence is illegal

because the sentencing order does not state the statutory authority for the

sentence imposed. Challenges to the legality of a sentence are cognizable

under the PCRA.    See Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa.

Super. 2013) (holding that a “motion to correct illegal sentence” is a petition

for relief under PCRA because “[the PCRA] provides for an action by which …

persons serving illegal sentences may obtain collateral relief”) (quoting 42

Pa.C.S. § 9542; citing Commonwealth v. Hockenberry, 689 A.2d 283,

288 (Pa. Super. 1997) (stating the legality of sentence is a cognizable issue


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under the PCRA)). Therefore, Appellant’s petition for writ of habeas corpus

constitutes a PCRA petition.

       It is also apparent that Appellant’s petition is patently untimely.2

Under the PCRA, any petition for post-conviction relief, including a second or

subsequent one, must be filed within one year of the date the judgment of

sentence becomes final, unless one of the exceptions set forth in 42 Pa.C.S.

§ 9545(b)(1)(i)-(iii) applies. That section states, in relevant part:

       (b) Time for filing petition.--

          (1) Any petition under this subchapter, including a second
          or subsequent petition, shall be filed within one year of the
          date the judgment becomes final, unless the petition
          alleges and the petitioner proves that:

              (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

              (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.



____________________________________________


2
  “Although legality of sentence is always subject to review within the PCRA,
claims must still first satisfy the PCRA’s time limits or one of the exceptions
thereto.” Fahy, 737 A.2d at 223 (citation omitted).



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42 Pa.C.S. § 9545(b)(1)(i)-(iii).        Any petition attempting to invoke one of

these exceptions “shall be filed within 60 days of the date the claim could

have been presented.” 42 Pa.C.S. § 9545(b)(2).

       Instantly, Appellant argued in his petition (and reiterates on appeal)

that he is exempt from having to plead and prove the applicability of one of

the above-stated exceptions because, due to the error in the sentencing

order, “his sentence is vitiated, void ab initio and non-existent.”         PCRA

Petition, 4/15/14. In other words, Appellant claimed that there was no legal

judgment of sentence in his case from which he had to file a timely PCRA

petition and, as such, he did not have to prove the applicability of a section

9545(b)(1) exception.

       Appellant cites no legal authority to support this argument. We find it

unconvincing in light of the well-established mandate that a petitioner who

files an untimely PCRA petition challenging the legality of his sentence must

plead and prove the applicability of one of the above-stated exceptions. See

Fahy, 737 A.2d at 223. Appellant’s argument here does not fall under the

ambit of any of those exceptions; accordingly, his petition is untimely.3
____________________________________________


3
  We acknowledge that Appellant briefly mentioned in his petition that, “the
information upon which this [p]etition rests was not previously known or
discoverable with reasonable diligence, and/or that the failure to raise [the
claims] previously was the result of the ineffective assistance of all prior
counsel.” PCRA Petition at 4. While Appellant does not assert these
arguments in his brief to this Court, we nevertheless note that our Supreme
Court has stated, “a claim of ineffective assistance of counsel does not save
an otherwise untimely petition for review on the merits.” Commonwealth
(Footnote Continued Next Page)


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      We note that the only other argument Appellant presents in his brief to

this Court is a claim that the PCRA court had inherent jurisdiction to correct

the patent and obvious error in the sentencing order.          Not only does

Appellant not explain what timeliness exception this argument satisfies, he

also did not raise this claim in his PCRA petition. Thus, it is untimely and/or

waived.    See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”); Pa.R.A.P. 902(B)

(“Each ground relied upon in support of the relief requested shall be stated

in the [PCRA] petition. Failure to state such a ground in the petition shall

preclude the defendant from raising that ground in any proceeding for post-

conviction collateral relief.”); see also Commonwealth v. Rainey, 928

A.2d 215, 226 (Pa. 2007) (noting that issues not raised in a PCRA petition

are waived and cannot be considered for the first time on appeal).

      In sum, Appellant’s petition asserting that his sentence is illegal is

untimely, and Appellant failed to plead and prove the applicability of any




                       _______________________
(Footnote Continued)

v. Morris, 822 A.2d 684, 694-95 (Pa. 2003) (citation omitted).
Furthermore, to the extent Appellant sought to invoke the after-discovered
fact exception of section 9545(b)(1)(ii), we disagree that he proved he acted
with due diligence. Appellant claimed in his petition that he discovered his
purportedly illegal sentencing order when he filed a written request for
records under the Pennsylvania Right-to-Know Law. Appellant does not
explain why he could not have filed this written request earlier. Thus, he did
not prove he acted with due diligence under section 9545(b)(1)(ii).




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exception to the PCRA’s one-year time-bar.4        Thus, the court properly

denied Appellant’s petition.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/2014




____________________________________________


4
  Nevertheless, we note that Appellant’s sentence is not illegal, as statutory
authority does exist for the sentence imposed. See 18 Pa.C.S. § 1103(1)
(stating that a person convicted of a felony of the first degree may be
sentenced to “a term which shall be fixed by the court at not more than 20
years”). Appellant offers no legal authority to support his claim that the
sentencing order must expressly state the statutory authority underlying the
sentence.




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