J-S71021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    WILLIAM HARRIS

                             Appellant                No. 3664 EDA 2016


             Appeal from the PCRA Order entered October 25, 2016
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-1105182-1996


BEFORE: PANELLA, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                       FILED FEBRUARY 12, 2018

        Appellant, William Harris, appeals pro se from the from the October 25,

2017 order entered in the Court of Common Pleas of Philadelphia County,

denying his petition for collateral relief pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, and denying his petition for habeas

corpus relief. Upon review, we affirm.

         The relevant factual and procedural background can be summarized as

follows.    Following a bench trial, Appellant was convicted of first degree

murder and related offenses in connection with the murder of Darryl Gibbs on

October 5, 1996. On May 13, 1999, the trial court imposed an aggregate

sentence of life imprisonment. This Court affirmed his judgment of sentence

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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on September 10, 2004, and the Pennsylvania Supreme Court denied his

petition for allowance of appeal on May 3, 2005.

      Appellant filed his first PCRA petition on April 14, 2006. After counsel

was appointed, and holding a hearing, the PCRA court entered an order

denying relief on April 28, 2008. We affirmed the order on September 20,

2010. Our Supreme Court denied allocatur on March 29, 2011.

      On May 21, 2013, Appellant filed a habeas corpus petition, alleging the

Department of Corrections is holding him illegally in the absence of an actual

sentencing order. Subsequently, on May 13, 2016, Appellant filed a PCRA

petition, his second, arguing his counsel was ineffective. The trial court

entertained both petitions concurrently. After holding a hearing, the trial court

denied both petitions. This appeal followed.

      We will address the denial of the PCRA petition first. “[A]n appellate

court reviews the PCRA court’s findings of fact to determine whether they are

supported by the record, and reviews its conclusions of law to determine

whether they are free from legal error.” Commonwealth v. Spotz, 84 A.3d

294, 311 (Pa. 2014). All PCRA petitions, “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes final”

unless an exception to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). “The

PCRA’s time restrictions are jurisdictional in nature. Thus, [i]f a PCRA petition

is untimely, neither this Court nor the [PCRA] court has jurisdiction over the

petition. Without jurisdiction, we simply do not have the legal authority to

address the substantive claims.” Commonwealth v. Chester, 895 A.2d 520,

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522 (Pa. 2006) (first alteration in original) (internal citations and quotation

marks omitted).      As timeliness is separate and distinct from the merits of

Appellant’s underlying claims, we first determine whether this PCRA petition

is timely filed.   See Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa.

2008) (consideration of Brady1 claim separate from consideration of its

timeliness). The timeliness requirements of the PCRA petition must be met,

even if the underlying claim is a challenge to the legality of the sentence. See

Commonwealth v. Holmes, 933 A.2d 57, 60 (Pa. 2007) (“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.”) (citing

Commonwealth v. Fahy, 737 A.2d 214, 223 (1999)).

        The instant PCRA petition is facially untimely as he filed it approximately

ten years after the expiration of the time for a timely filing.2 See Trial Court

Opinion, 1/25/17, at 3-4.        Appellant argues the petition meets one of the

exceptions to the timeliness general rule, the previously unknown facts




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1   Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).

2 Appellant’s sentence became final on August 1, 2005, after our Supreme
Court denied his petition for allocatur and the expiration of the time for filing
a petition for writ of certiorari in the United States Supreme Court. See 42
Pa.C.S.A. § 9545(b)(3); U.S. Sup.Ct.R. 13. Appellant had one year from that
date to file a timely petition. He filed the instant petition approximately ten
years after that date. The instant PCRA petition is therefore facially untimely.




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exception set forth in Section 9545(b)(1)(ii).3 In particular, Appellant argues

he did not know that his trial counsel had been suspended from the practice

of law for a period of two years retroactive to February 26, 2013.

       The trial court addressed Appellant’s claim as follows:

       Despite formulating his claim in terms of discovery of new facts
       not previously known to him, [Appellant]’s claim, in essence, is
       challenging prior counsel’s effectiveness.     It is well settled,
       however, that claims of ineffective assistance of counsel cannot
       serve to invoke the “new facts” exception to the PCRA’s timeliness
       requirements. See Commonwealth v. Bennett, 930 A.2d 1264
       (Pa. 2007) (stating generally that allegations of PCRA counsel’s
       ineffectiveness do not invoke “new fact” exception to PCRA’s time-
       bar); see also Commonwealth v. Gamboa-Taylor, 753 A.2d
       780 (Pa. 2000) (analyzing supposed newly discovered evidence
       claim and recognizing that it actually was a position that prior
       counsel was ineffective).

Trial Court Opinion, 1/25/17, at 5 (footnote omitted).

       We agree with the trial court’s characterization and analysis of

Appellant’s first claim. Additionally, the trial court noted:

       Even if [prior counsel]’s disciplinary proceedings qualified as a
       previously-unknown fact, [Appellant] failed to demonstrate i) that
       he presented this fact in compliance with [Section] 9545(b)(2), or
       ii) that this fact was previously unascertainable with the exercise
       of due diligence.

Id.

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3 The exception requires a petitioner to plead and prove two components:
1) the facts upon which the claim was predicated were unknown, and (2)
these unknown facts could not have been ascertained by the exercise of due
diligence. See Commonwealth v. Burton, 158 A.3d 618, 638 (Pa. 2017).
Thus, a petitioner must explain why he could not have learned the new facts
earlier with the exercise of due diligence. See Commonwealth v.
Breakiron, 781 A.2d 94, 98 (Pa. 2001).

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      We agree. Indeed, Appellant failed to allege and prove when he learned

of counsel’s disciplinary issues. Secondly, Appellant failed to allege and prove

why he could not have learned this information earlier with the exercise of due

diligence.

      Furthermore, it should be noted that Appellant’s trial took place in 1998,

whereas the Supreme Court suspended counsel in 2014 for two years

retroactive to February 26, 2013.         Appellant argues that the disciplinary

proceedings “revealed that [counsel] had been suffering from mental illness

for many years.” Appellant’s Brief at 5. Nowhere does Appellant explain what

“mental illness” actually means, what “many years” consists of, or how

counsel’s alleged illness affected him.

      In light of the foregoing, we conclude the trial court properly disposed

of Appellant’s first claim.

      Next, Appellant argues the trial court erroneously denied his habeas

corpus petition.   As noted above, Appellant claims he is being unlawfully

detained because the Department of Corrections does not have a signed

sentencing order for him, citing 42 Pa.C.S.A. § 9764 (relating to information

required upon confinement and subsequent disposition).            The claim is

meritless.

      When reviewing the denial of a petition for a writ of habeas corpus, we

are guided by the following:

      Our standard of review of a trial court’s order denying a petition
      for writ of habeas corpus is limited to abuse of discretion.

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      See Commonwealth, Dep't of Corrections v. Reese, 774 A.2d
      1255, 1261 (Pa. Super. 2001). Thus, we may reverse the court's
      order where the court has misapplied the law or exercised its
      discretion in a manner lacking reason.          See Lachat v.
      Hinchcliffe, 769 A.2d 481, 487 (Pa. Super. 2001) (defining
      abuse of discretion). As in all matters on appeal, the appellant
      bears the burden of persuasion to demonstrate his entitlement to
      the relief he requests. See Miller v. Miller, 744 A.2d 778, 788
      (Pa. Super. 1999).

Commonwealth ex rel. Fortune v. Dragovich, 792 A.2d 1257, 1259 (Pa.

Super. 2002), appeal denied, 803 A.2d 732 (Pa. 2002).

      Even if we were to assume there is no sentencing order, as alleged, but

not proved by Appellant, Appellant is entitled to no relief. As noted by the

trial court, even in the absence of a sentencing order, it is well-established

that the Department of Corrections has continuing authority to detain an

inmate where there is a record of the valid imposition of sentence. Trial Court

Opinion, 1/25/17, at 7 (citing Joseph v. Glunt, 96 A.3d 365, 372 (Pa. Super.

2014)).   We agree.

      To this end, the trial court found that

      [the presiding judge] entered sentencing orders in the instant
      matter on May 13, 1999. The original orders are being maintained
      by the clerk of courts of [the Philadelphia County Court of
      Common Pleas] as part of [Appellant]’s case file. Additionally,
      upon reviewing the criminal docket through the Common Pleas
      Case Management System, [Appellant]’s sentence was accurately
      docketed.

Trial Court Opinion, 1/25/17, at 7.    Thus, here, as in Joseph, the record

confirmed the imposition, and legitimacy, of Appellant’s sentence.




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      Regarding Appellant’s reliance on Section 9764, we conclude that such

reliance is misplaced. In Joseph we noted:

      The language and structure of section 9764, viewed in context,
      make clear that the statute pertains not to the DOC's authority to
      detain a duly-sentenced prisoner, but, rather, sets forth the
      procedures and prerogatives associated with the transfer of an
      inmate from county to state detention. None of the provisions
      of section 9764 indicate[s] an affirmative obligation on the part of
      the DOC to maintain and produce the documents enumerated in
      subsection 9764(a) upon the request of the incarcerated
      person. Moreover, section 9764 neither expressly vests, nor
      implies the vestiture, in a prisoner of any remedy for deviation
      from the procedures prescribed within.

Joseph, 96 A.3d at 371 (footnote omitted).

      In light of the foregoing, we conclude Appellant is not entitled to any

relief on his habeas corpus petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/18




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