J-S48044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

MONTEL FAIRFAX

                            Appellant                    No. 635 WDA 2015


                 Appeal from the PCRA Order of March 23, 2015
                In the Court of Common Pleas of Fayette County
               Criminal Division at No.: CP-26-CR-0000390-2005


BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                              FILED OCTOBER 27, 2015

       Montel Fairfax appeals the order denying his petition under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541, et seq.           He contends

that the PCRA court should not have evaluated his petition under the PCRA

or applied that act’s jurisdictional timeliness requirements. We affirm.

       On November 15, 2005, the trial court sentenced Fairfax to an

aggregate ten to twenty years’ imprisonment for two counts each of rape of

a child, aggravated indecent assault, indecent assault, and corruption of

minors.1     On November 21, 2006, this Court affirmed his judgment of

sentence.        See     Commonwealth          v.   Fairfax,   2123   WDA   2005

____________________________________________


1
      See 18 Pa.C.S. §§ 3121(c), 3125(a)(7), 3126(a)(7), and 6301(a)(1),
respectively. The facts underlying these convictions are immaterial to our
disposition.
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(Pa. Super. Nov. 21, 2006). On May 17, 2007, our Supreme Court denied

Fairfax’s petition for allowance of appeal. See Commonwealth v. Fairfax,

923 A.2d 1173 (Pa. 2007) (per curiam). Fairfax did not appeal to the United

States Supreme Court.          In the years that followed, Fairfax filed several

petitions for collateral relief from his judgment of sentence, of which the

instant petition is the most recent. Fairfax characterizes the instant petition

as a “hybrid” petition, seeking relief under the PCRA or common-law habeas

corpus. The PCRA court, treating the instant petition as one filed under the

PCRA, denied it as untimely and subject to no applicable exception to the

PCRA’s jurisdictional time limit.

       At issue is the trial court’s alleged imposition of a mandatory minimum

sentence pursuant to 42 Pa.C.S. § 9718.2         As Fairfax correctly notes, this

Court held section 9718 unconstitutional in Commonwealth v. Wolfe, 106

A.3d 800 (Pa. Super. 2014), based upon the United Supreme Court’s holding

in Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013).            Fairfax also
____________________________________________


2
       The PCRA court asserts that Fairfax was not sentenced pursuant to a
mandatory sentence under section 9718, which would render Fairfax’s
petition moot without regard to the substance of his claims, had we
jurisdiction to consider them.     However, because we must assess our
jurisdiction first, and because we conclude, for the reasons that follow, that
we lack jurisdiction, we need not address whether the trial court in fact
imposed a mandatory sentence. That being said, the trial court’s imposition
only of consecutive five to ten-year sentences for each count of rape of a
child would be at odds with the mandatory sentence associated with that
crime under then-viable section 9718, which called for a ten-year mandatory
minimum sentence for that crime. See 42 Pa.C.S. § 9718(a)(3) (imposing a
ten-year mandatory sentence for rape of a child).



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notes that our Supreme Court has granted allowance of appeal to address

this Court’s decision in Wolfe. Commonwealth v. Wolfe, 63 MAL 2015,

2015 WL 4755651 (Pa. Aug. 12, 2015) (per curiam). The Court’s resolution

of that case remains pending.

      As set forth at length, infra, the PCRA contains strict jurisdictional time

limits.   Fairfax does not dispute this fact, and indeed makes no effort to

argue that his facially untimely petition warrants the benefit of any of the

exceptions that might extend the time during which Fairfax could seek

collateral relief. Instead, his arguments are based solely upon the premise

that his petition is more properly understood as seeking relief under

principles of habeas corpus or coram nobis.       We begin by addressing his

arguments in this regard.

      First, it is well-settled that “the PCRA is intended to be the sole means

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

462, 465 (Pa. Super. 2013). Thus, “[u]nless the PCRA could not provide for

a potential remedy, the PCRA subsumes the writ of habeas corpus,” and

“[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.” Id. at 465-

66. In short, “a defendant cannot escape the PCRA time-bar by titling his

petition or motion as a writ of habeas corpus.” Id. at 466.

      The question we face, then, is whether Fairfax’s substantive claims are

cognizable under the PCRA.      Although we have found certain prayers for

collateral relief not to be cognizable under the PCRA, we have never done so

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in a PCRA case involving the illegality of a sentence.               See, e.g.,

Commonwealth v. West, 938 A.2d 1034 (Pa. 2007) (due process

challenge    to   lengthy   delay   between   sentence   and   incarceration    not

cognizable under PCRA); Commonwealth v. Judge, 916 A.2d 511

(Pa. 2007) (invocation of international agreement as bar to deportation not

cognizable    under   PCRA);    Commonwealth       v.    Masker,   34    A.3d   41

(Pa. Super. 2011) (en banc) (SVP classification challenge not cognizable

under PCRA); Commonwealth v. Partee, 86 A.3d 245 (Pa. Super. 2014)

(challenge to retroactive application of Megan’s Law not cognizable).

     The essence of Fairfax’s claim is that Alleyne, supra, rendered his

sentence illegal.     See Commonwealth v. Miller, 102 A.3d 988, 995

(Pa. Super. 2014) (“[A]n issue pertaining to Alleyne goes to the legality of

the sentence.”). The PCRA specifically “provides for an action by which . . .

persons serving illegal sentences may obtain collateral relief.”        42 Pa.C.S.

§ 9542. Thus, contrary to Fairfax’s contention that the instant case presents

an issue that is not cognizable under the PCRA, his Alleyne-related claim

appears on its face to be cognizable under the PCRA.

     Fairfax’s first argument to the contrary invokes our determination in

Wolfe that section 9718 is unconstitutional.        Fairfax argues that Wolfe

renders that statute void ab initio, which he contends has retroactive effect

as a matter of law under the circumstances of this case.           See Brief for

Fairfax at 18-23.     Fairfax’s argument is well researched, but unavailing.

Critically, the case law upon which he relies involves cases in which this

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Court found that it lacked authority to enforce a law that was held to be

unconstitutional during the pendency of a direct appeal.          See, e.g.,

Commonwealth v. Michuk, 686 A.2d 403 (Pa. Super. 1996). Fairfax cites

Commonwealth v. Brown, 431 A.2d 905 (Pa. 1981), in support of his

argument, but Brown, in fact, hints at why this principle applies differently

in the context of a direct appeal than in PCRA proceedings.     In that case,

citing United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103 (1801),

our Supreme Court reaffirmed the principle that an appellate court “does not

have power to enforce a law which is no longer valid but rather must apply

the law as it exists at the time of its decision.”   Brown, 431 A.2d at 907

(quoting Schooner Peggy, 5 U.S. at 110). However, our Supreme Court

went on to elaborate upon the foundation of that principle in a way that

distinguishes direct appellate proceedings from those seeking collateral

relief:   “[I]t is unfair to litigants whose case is not yet final to subject

them to a law that is now recognized as offensive.      Evenhanded decision-

making requires that similarly situated individuals on direct appeal be

treated the same.” Id. at 908 (quoting Commonwealth v. Hill, 422 A.2d

491, 499 (Pa. 1980)) (emphasis added). Notably, the Supreme Court later

eschewed the per se overtones of Brown, expressly “disavow[ing] the

stated holding in [Schooner Peggy] embracing a per se application of the

Schooner Peggy doctrine,” and endorsing in its place a “balancing

approach,” in which “the litigant’s interest in securing the benefit of the

change must be considered in conjunction with the purposes intended to be

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accomplished by the change and the impact of a retrospective application

upon the system.”       Commonwealth v. Geschwendt, 454 A.2d 991, 999

(Pa. 1982).

        This Court expressly has held that retroactivity applies differently on

direct appeal than it does on PCRA review. In Commonwealth v. Riggle,

119 A.3d 1058 (Pa. Super. July 7, 2015), this Court held as follows:

        The seminal test in determining whether a constitutional rule
        warrants retroactive application during collateral review was
        delineated in Teague v. Lane, 489 U.S. 288 (1989) (plurality),
        which was subsequently adopted by a majority of [our] Supreme
        Court. See Commonwealth v. Lesko, 15 A.3d 345, 363
        (Pa. 2011) (citing Butler v. McKellar, 494 U.S. 407 (1990)).
        “Under the Teague framework, an old rule applies both on direct
        and collateral review, but a new rule is generally applicable only
        to cases that are still on direct review. A new rule applies
        retroactively in a collateral proceeding only if (1) the rule is
        substantive or (2) the rule is a ‘watershed rule of criminal
        procedure’ implicating the fundamental fairness and accuracy of
        the criminal proceeding.” Whorton v. Bockting, 549 U.S. 406,
        416 (2007) (internal citations omitted).

Riggle, 119 A.3d at ___ (citations modified).        Furthermore, there is no

question that Alleyne constituted a new rule, insofar as it overruled prior

precedent. Id. And in Riggle, this Court went on to hold that the Alleyne

ruling was neither substantive, nor did it constitute a watershed procedural

rule.   Id.3   Thus, we are bound to our prior holding that Alleyne is not

entitled to retroactive effect.
____________________________________________


3
      For this reason, we reject Fairfax’s various citations of cases in which a
criminal conviction or sentence was rendered unconstitutional by case law
(Footnote Continued Next Page)


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      As noted, it is not in question that the imposition of a mandatory

sentence under section 9718 goes to the legality of sentence, and, indeed,

renders the sentence illegal. See Miller, supra. However, the law is equally

clear that challenges to the legality of sentence are cognizable under the

PCRA, and therefore subject to its strictures. See 42 Pa.C.S. § 9542. Thus,

Fairfax’s contention that he is entitled to habeas corpus or other non-PCRA

relief on these grounds is unavailing.

      In light of this controlling case law, Fairfax’s other arguments also

must fail. Fairfax’s argument that he is entitled to non-PCRA relief because

“[a] trial court maintains its inherent powers and powers of equity over its

judgments[,] which authorize it to correct patent errors and invalid

judgments,” Brief for Fairfax at 23, is based upon a series of constitutional

and statutory citations addressing varying aspects of judicial powers, none of

which suggests that a common pleas court has the authority to reopen and

vacate old convictions or sentences at whim in the event of a new

constitutional ruling. Such a power manifestly would undermine the finality

of judgments and lead to rampant inequity between and among similarly

situated individuals convicted of crimes by the courts of the Commonwealth.

Rather, the provisions he cites largely concern the Supreme Court’s and the


                       _______________________
(Footnote Continued)

issued before the defendant’s judgment of sentence became final, i.e.,
before the defendant had exhausted his channels for direct appellate review.
See, e.g., Commonwealth v. Demor, 691 A.2d 958 (Pa. Super. 1997).



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common pleas courts’ rule-making authority and their prerogatives to act to

ensure the fulfillment of their orders and judgments, neither of which is

implicated in this case.   See id. at 23 (citing Pa. Const. art. V § 5(b);

42 Pa.C.S. §§ 323, 502, 912, 931, 1722).

      In Fairfax’s remaining argument, he maintains in so many words that

any time the PCRA cannot afford relief for any given claim, that claim must

be permitted to proceed under the common-law writ of habeas corpus. See

id. at 32-35. In effect, Fairfax simply argues redundantly that this case is

analogous to West; Judge; Masker; Partee, supra.            However, Fairfax’s

claim on its face is neither sui generis in the way that those cases were nor

categorically excluded from the confines of the PCRA; to the contrary,

sentence illegality, on constitutional grounds or otherwise, long has been

addressed within the scope of the PCRA. Thus, Fairfax has failed to establish

that he is entitled to relief by any means other than the PCRA.

      We have held in no uncertain terms that, despite the fact that a

challenge to the legality of sentence cannot be waived, the PCRA’s time

limits nonetheless apply to such challenges.        See Commonwealth v.

Fowler, 930 A.2d 586, 592 (Pa. Super. 2007).        Thus, a PCRA court “may

entertain a challenge to the legality of the sentence so long as the court has

jurisdiction to hear the claim. In the PCRA context, jurisdiction is tied to the

filing of a timely PCRA petition.” Id. (citations and internal quotation marks

omitted).




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      The PCRA time limits are jurisdictional, and must be strictly construed,

regardless of the potential merit of the claims asserted. Commonwealth v.

Leggett, 16 A.3d 1144, 1145 (Pa. Super. 2011); Commonwealth v.

Murray, 753 A.2d 201, 202-03 (Pa. 2000), abrogated on other grounds by

Commonwealth v. Brown 943 A.2d 264 (Pa. 2008).               “[N]o court may

properly disregard or alter [these filing requirements] in order to reach the

merits of the claims raised in a PCRA petition that is filed in an untimely

manner.”   Murray, 753 A.2d at 203; see Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000).

      Despite facial untimeliness, a tardy PCRA petition nonetheless will be

considered timely if (but only if) the petitioner pleads and proves one of the

following three exceptions to the one-year time limit enumerated in

subsection 9545(b) of the PCRA:

          (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.




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42 Pa.C.S. § 9545(b)(1). When an appellant files a facially untimely petition

under the PCRA, and fails to plead and prove one or more of the exceptions

to the PCRA’s one-year jurisdictional time limit, the petition is untimely and

we must deny relief. Gamboa-Taylor, 753 A.2d at 783.

       Fairfax’s petition is untimely on its face, which he does not contest.4

Furthermore, although he styled his original petition in the PCRA court as a

“hybrid petition” seeking relief under the PCRA or via the writ of habeas

corpus, before this Court he has impliedly conceded that he is time-barred

under the PCRA by seeking relief only through his invocation of habeas

corpus. Fairfax has not pleaded, let alone established, the application of any

of the PCRA’s timeliness exceptions. Consequently, he has waived any such

claim, see Lesko, 15 A.3d at 360, and this Court lacks jurisdiction to

entertain his appeal on the merits.

       Order affirmed.




____________________________________________



4
       On May 17, 2007, our Supreme Court denied Fairfax’s petition for
allowance of appeal. See Fairfax, 923 A.2d 1173. Fairfax did not seek
review in the United States Supreme Court. Therefore, his judgment of
sentence became final ninety days after our Supreme Court denied review,
on August 15, 2007. See 42 Pa.C.S. § 9545(b)(3) (“[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.”); U.S.Sup.Ct. Rule 13.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2015




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