J-S45040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RONALD WARRICK,

                            Appellant                No. 2019 WDA 2015


                Appeal from the PCRA Order December 15, 2015
               in the Court of Common Pleas of Allegheny County
               Criminal Division at Nos.: CP-02-CR-0011872-2005
                                  GD-15-13964


BEFORE: OLSON, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED JULY 12, 2016

        Appellant, Ronald Warrick, appeals pro se from the order dismissing

his second petition for relief pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541–9546, without a hearing, as untimely.1

Appellant argues chiefly that his petition for a writ of habeas corpus should

not have been construed as a PCRA petition. We affirm.

        We summarize the factual history of this case briefly for context.     A

jury convicted Appellant of third degree murder.           At his trial there was

testimony from the surviving victim, Mohcine El Joufri, which tended to
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 Although dated December 11, 2015, the order was filed and docketed on
December 15, 2015. We have amended the caption accordingly.
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establish that Appellant fatally shot the decedent, Othmane Lahmamsi, in

the course of an attempted robbery during a drug sale.       El Joufri testified

that Lahmamsi told him they were going to sell six pounds of marijuana to

Appellant’s cohort, Dave King. (See N.T. Trial, 3/14/07, at 49). However,

El Joufri further testified, during the course of the supposed sale, Appellant

pulled out a gun and said, “Sorry to do this to you, but this is how it’s going

down.” (Id. at 55).

        In contrast, Appellant testified that when an argument over payment

developed, El Joufri and Lahmamsi pulled out guns, and he fired his gun in

self-defense. (See id. 3/15/07, at 255-56).2 On March 16, 2007, the jury

found Appellant guilty of murder of the third degree.3 (See id. 3/16/07, at

371).

        The sentencing court imposed a term of not less than twenty nor more

than forty years of incarceration.4 After Appellant’s direct appeal rights were

____________________________________________


2
 El Joufri testified that no one except Appellant had a gun. (See N.T. Trial,
3/14/07, at 66-67, 71).
3
 The jury acquitted Appellant of all the remaining charges. (See N.T. Trial,
3/16/07, at 370-71). King was also convicted of third degree murder. (See
N.T. Sentencing, 5/21/07, at 31).
4
  Here, the trial court imposed sentence on May 21, 2007. In its Rule
1925(a) statement, the PCRA court references its Notice of Intent to
Dismiss, which states that sentence was imposed on May 1, 2007. (See
PCRA Court Opinion, 1/14/16; see also Notice of Intent to Dismiss,
10/15/15, at 2). However, the docket, the sentencing transcript, and the
sentencing order, as well as other pleadings in the record referencing the
(Footnote Continued Next Page)


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reinstated nunc pro tunc, this Court affirmed judgment of sentence and our

Supreme Court denied allowance of appeal, on July 21, 2010.          The PCRA

court denied Appellant’s first, counseled PCRA petition on February 29, 2012.

This Court affirmed on October 19, 2012.

      On August 18, 2015, Appellant, acting pro se, filed the instant petition,

which he styled as a petition for writ of habeas corpus ad subjiciendum.5

After entering a notice of intent to dismiss pursuant to Pa.R.Crim.P. 907, and

receiving Appellant’s response, the PCRA court dismissed the petition on

December 15, 2015. This timely appeal followed.6

      Appellant raises three questions on appeal:

           I. [ ] Did the [PCRA c]ourt err in construing or dismissing
      [Appellant’s] Writ of Habeas Corpus Ad Subjiciendum as a Post
      Conviction Relief Act petition?

           II. [ ] Were the [Appellant’s] constitutional rights violated
      where legislative-definition [sic] is too vague?

           III. [ ] Did the [c]ourt have [s]tatutory [a]uthorization to
      impose any sentence?

                       _______________________
(Footnote Continued)

sentence, confirm the imposition of sentence on May 21, 2007.               The
discrepancy is not material to our disposition.
5
  “A writ of habeas corpus ad subjiciendum is defined as [a] writ directed to
someone detaining another person and commanding that the detainee be
brought to court. Black’s Law Dictionary 778 (9th ed. 2009).” Joseph v.
Glunt, 96 A.3d 365, 367, appeal denied, 101 A.3d 787 (Pa. 2014).
6
  The PCRA court did not order Appellant to file a statement of errors. The
court filed its opinion on January 14, 2016, referencing its Notice of Intent to
Dismiss, filed on October 15, 2015. See Pa.R.A.P. 1925.



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(Appellant’s Brief, at 9).

      At the outset, we note that Appellant’s first claim, that his petition for

a writ of habeas corpus was improperly treated as a PCRA petition, has no

merit. Appellant’s argument is self-contradictory and, lacking any basis in

law or the facts, legally frivolous.

      “The action established in this [PCRA] 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 this

subchapter takes effect, including habeas corpus and coram nobis.” 42

Pa.C.S.A. § 9542 (emphases added); see also Commonwealth v.

Martorano, 89 A.3d 301, 306 (Pa. Super. 2014).

      Here, Appellant claims he is not seeking relief provided by the PCRA.

Notably, he maintains that he is not alleging constitutional violations. (See

Appellant’s Brief, at 12). Nevertheless, on the immediately preceding page

of his brief he argues “Appellant believes that his Constitutional Rights were

violated[.]” (Id. at 11). And on the very next page of this brief, Appellant

asserts that his “Fifth and Fourteenth Amendment Rights were violated.”

(Id. at 13).

      Similarly, Appellant denies any claim that “the sentence imposed was

greater than the lawful maximum[.]” (Id. at 12). Yet he complains that he,

and any other person convicted of murder of the third degree, “has been

sentenced to an unlawful sentence[.]” (Id. at 15) (emphasis added).


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          The PCRA provides a remedy for the violation of constitutional rights.

See 42 Pa.C.S.A. § 9543(a)(2)(i). The PCRA also provides a remedy for an

illegal     sentence.     See   42   Pa.C.S.A.   §   9543(a)(2)(vii);   see   also

Commonwealth v. Taylor, 65 A.3d 462, 467 (Pa. Super. 2013) (holding

that claim that sentence exceeds the statutory limit “is undoubtedly

cognizable under the PCRA.”).

          In Commonwealth v. Peterkin, 722 A.2d 638 (Pa. 1998), our

Supreme Court explained:

          [T]he PCRA subsumes the remedy of habeas corpus with respect
          to remedies offered under the PCRA and that any petition
          seeking relief under the PCRA must be filed within one year of
          final judgment. . . . [A]s the statute itself provides, the writ
          continues to exist only in cases in which there is no remedy
          under the PCRA.

Id. at 640.

          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. 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
          [ ] Peterkin, supra; 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.

Taylor, supra at 465-66 (footnote and some citations omitted). Aside from

caselaw cited for general principles, Appellant offers no pertinent authority in

support of his core assertion that the relief he seeks is not afforded by the

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PCRA.      Furthermore, his claim that he is not seeking relief encompassed

within the PCRA is belied by the facts.      Accordingly, Appellant’s claim is

frivolous.      The PCRA court properly construed his claim for relief as an

untimely PCRA petition. Appellant’s first issue does not merit relief.

      For Appellant’s two remaining issues our standard of review is well-

settled.     Under our standard of review, we must determine whether the

ruling of the PCRA court is supported by the record and is free of legal error.

See Commonwealth v. Marshall, 947 A.2d 714, 719 (Pa. 2008).               “The

scope of review is limited to the findings of the PCRA court and the evidence

of record, viewed in the light most favorable to the prevailing party at the

trial level.”    Commonwealth v. Colavita, 993 A.2d 874, 886 (Pa. 2010)

(citation omitted).

      However, before we may review the merits of a PCRA claim we must

determine if the petition was timely filed. Our Supreme Court has stressed

that “[t]he PCRA’s timeliness requirements are jurisdictional in nature and

must be strictly construed; courts may not address the merits of the issues

raised in a petition if it is not timely filed.” Commonwealth v. Abu–Jamal,

941 A.2d 1263, 1267–68 (Pa. 2008) (citation omitted), cert. denied, 555

U.S. 916 (2008); see also Commonwealth v. Monaco, 996 A.2d 1076,

1079 (Pa. Super. 2010), appeal denied, 20 A.3d 1210 (Pa. 2011) (holding no

court has jurisdiction to hear an untimely PCRA petition).




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      “[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).

      Here, the trial court imposed sentence on May 21, 2007.               Our

Supreme Court denied Appellant’s petition for allowance of appeal on July

21, 2010.   Therefore, Appellant’s judgment of sentence became final on

October 19, 2010, when the ninety-day period for filing a writ of certiorari

with the United States Supreme Court expired.      See U.S.Sup.Ct.R. 13(1).

Appellant then had until October 19, 2011 to file a timely PCRA petition.

      Accordingly, Appellant’s instant petition, filed on August 18, 2015, is

untimely by almost four years. Relying solely on his habeas corpus claim,

Appellant does not plead or prove any of the statutory exceptions to the

PCRA time bar.      We are without jurisdiction to review the merits of

Appellant’s remaining claims.   The PCRA court properly treated Appellant’s

petition for a writ of habeas corpus as a PCRA petition and properly

dismissed it as untimely.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/12/2016




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