J-S64032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

DARREN JOHNSON,

                         Appellant                    No. 373 EDA 2016


                Appeal from the PCRA Order January 4, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0113961-1993


BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                 FILED SEPTEMBER 07, 2016

      Darren Johnson (“Appellant”) appeals, pro se, from the order entered

in the Court of Common Pleas of Philadelphia County dismissing his self-

styled “Writ of Habeas Corpus” as an untimely serial petition under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. § 9541 et seq. We affirm.

      The PCRA court provides an apt procedural history of the case as

follows:

      On June 30, 1993, Petitioner was found guilty of first degree
      murder and possessing an instrument of a crime (PIC) after a
      nonjury trial before the Honorable Lisa A. Richette. On January
      9, 1994, Petitioner was sentenced to mandatory life
      imprisonment for murder and a concurrent term of two and one-
      half to five years’ incarceration for PIC. Petitioner filed a timely
      appeal, and his judgment of sentence was affirmed by the
      Superior Court on February 6, 1995. The Supreme Court denied
      allocator on August 22, 1995.




*Former Justice specially assigned to the Superior Court.
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     Petitioner filed his first post conviction relief petition on May 14,
     1996. Petitioner was appointed counsel and after an amended
     petition was filed, the court denied his petition on September 23,
     1998. The Superior Court affirmed the dismissal on October 1,
     1999, and the Supreme Court denied allocator on February 11,
     2000.

     On August 30, 2001, the trial court dismissed Petitioner’s second
     post conviction relief petition, and he filed a timely appeal. The
     Superior Court affirmed the dismissal on October 7, 2002.

     Petitioner filed his third PCRA petition, which was dismissed as
     untimely on January 17, 2013. On April 9, 2014, Petitioner filed
     his fourth PCRA petition, along with a writ of mandamus on July
     17, 2014. Both of these filings were dismissed as untimely on
     August 25, 2014.

     Petitioner filed the instant petition on July 6, 2015.[] After
     conducting an extensive and exhaustive review of these filings,
     the record and applicable case law, th[e PCRA court] determined
     Petitioner’s Writ of Habeas Corpus should be treated as a PCRA
     [petition] and [found] that Petitioner’s petition for post
     conviction collateral relief was untimely filed. Therefore, th[e
     PCRA court determined that it] does not have jurisdiction to
     consider Petitioner’s PCRA petition [and entered its order of
     January 4, 2016 denying PCRA relief].

PCRA Court Opinion, filed January 19, 2016, at 1-2.         This timely appeal

followed.

     Appellant contends, inter alia, that the PCRA court erred in treating

Appellant’s “Writ of Habeas Corpus” as an untimely PCRA petition because

his legality of sentence challenge argues not that his sentence exceeds the

lawful maximum but, instead, that the sentencing order fails to state the

statutory authority underlying his sentence.    Because such a basis for an

illegal sentence is not expressly stated within the PCRA, Appellant asserts,

his claim is not cognizable under the Act. We disagree.


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      In reviewing a PCRA appeal, our scope and standard of review are

well-settled. The restraints set forth in the PCRA confine an appellate court’s

review of a PCRA petition.       Commonwealth v. Strong, 761 A.2d 1167,

1170 n. 3 (Pa. 2000). The “standard of review for an order denying post-

conviction relief is limited to whether the trial court's determination is

supported by evidence of record and whether it is free of legal error.”

Commonwealth       v.   Allen,    732   A.2d   582,   586   (Pa.   1999)   (citing

Commonwealth v. Jermyn, 709 A.2d 849, 856 (Pa. 1998)).

      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 under

the PCRA)).     See also Commonwealth v. Vega, 754 A.2d 714, 719

(Pa.Super. 2000) (finding that, within the PCRA, legality of sentence claims

are always reviewable).      Moreover, it is well-settled that a sentence

unsupported by statutory authority is an illegal sentence and subject to

correction.   Commonwealth v. Fennell, 105 A.3d 13, 15, 20 (Pa.Super.

2014)

      Therefore, we discern nothing exotic about Appellant's particular

challenge to the legality of his sentence such that it would not be amenable

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to correction under the PCRA if substantiated. It would appear, instead, that

Appellant has characterized his petition as a writ of habeas corpus rather

than a PCRA petition in an attempt to avoid PCRA time-bar restraints. Such

an attempt is unavailing, for the PCRA is the “sole means of obtaining

collateral relief and encompasses all other common law and statutory

remedies for the same purpose ... including habeas corpus and coram

nobis.” 42 Pa.C.S.A. § 9542. As this Court previously has held, “[i]ssues

that are cognizable under the PCRA must be raised in a timely PCRA petition

and cannot be raised in a habeas corpus petition.”          Commonwealth v.

Taylor, 65 A.3d 462, 466 (Pa.Super. 2013). While habeas corpus has not

been extinguished altogether, it “continues to exist only in cases in which

there is no remedy under the PCRA.”        Commonwealth v. Peterkin, 722

A.2d 638, 640 (Pa. 1998).      Because the PCRA provides a remedy for an

illegal sentence, see Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa.

1999), Vega, supra, Appellant's        attempt    to    obtain   relief from his

purportedly illegal sentence outside of the PCRA fails.

      Having determined the PCRA court correctly deemed Appellant’s writ of

habeas corpus a serial PCRA petition, we next examine whether the petition

is untimely. In order for a court to entertain a PCRA petition, a petitioner

must comply with the PCRA filing deadline.             See Commonwealth v.

Robinson, 837 A.2d 1157, 1161 (Pa. 2003). The time for filing a petition is

set forth in 42 Pa.C.S.A § 9545(b), which provides in relevant part:

      (b) Time for filing petition.—

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     (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.

     ***
     42 Pa.C.S.A § 9545(b).

     “[T]he time limitations pursuant to ... the PCRA are
     jurisdictional.” Fahy, 737 A.2d at 222. “[Jurisdictional time]
     limitations are mandatory and interpreted literally; thus, a court
     has no authority to extend filing periods except as the statute
     permits.” Id. “If the petition is determined to be untimely, and
     no exception has been pled and proven, the petition must be
     dismissed without a hearing because Pennsylvania courts are
     without jurisdiction to consider the merits of the petition.”
     Commonwealth v. Perrin, 947 A.2d 1284, 1285 (Pa.Super.
     2008).

Commonwealth v. Jackson, 30 A.3d 516, 518–19 (Pa.Super. 2011).

     The present PCRA petition, filed nearly twenty years after Appellant’s

judgment of sentence became final, is clearly untimely under Section

9545(b)(1).    Moreover, Appellant alleged no enumerated exception at

Section 9545(b)(1)(i), (ii), or (iii) in an attempt to overcome the time-bar.


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For these reasons, we agree with the PCRA court that it lacked jurisdiction to

entertain the present challenge to Appellant’s sentence. 1    Accordingly, we

affirm the order entered below.

     Order is AFFIRMED.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2016




____________________________________________


1
  Although “not technically waivable, a legality [of sentence] claim may
nevertheless be lost should it be raised for the first time in an untimely PCRA
petition for which no time-bar exception applies, thus depriving the court of
jurisdiction over the claim.” Commonwealth v. Slotcavage, 939 A.2d
901, 903 (Pa.Super. 2007).



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