J-S57023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                       v.

HOWARD MITCHELL

                            Appellant                No. 1405 EDA 2017


                   Appeal from the Order Dated April 6, 2017
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0005241-2004

BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.:                       FILED NOVEMBER 14, 2017

       Pro se Appellant Howard Mitchell,1 appeals from the order dismissing

his fourth Post Conviction Relief Act (PCRA) petition, which he styled as a

petition for habeas corpus. We affirm.

       We need not state the facts in length. According to the PCRA court:

           On April 31, 2004[, Appellant] committed armed robbery at a
       Radio Shack store in Upper Darby, PA. He entered the store,
       robbed two employees at gunpoint and fled with, inter alia, the
       store manager’s wallet, over $1,000.00 in cash, and a Cannon
       Video Camcorder. A radio call went out and plain clothes police
       officers in the immediate area approached [Appellant], who
       matched the description of the robber. [Appellant] attempted to
       flee but he was apprehended. He had a fully loaded handgun, a
       large sum of cash, the store manager’s wallet, a bag containing
       controlled substances and his own photo identification card and
       the stolen Cannon Camcorder in his possession. The gun he
       possessed was reported stolen . . . . This incident gave rise to a
____________________________________________
1  Appellant is also known as Mitchell Howard, and the record reflects
dispositions under that alias.
J-S57023-17


       plethora of robbery and theft charges and alleged violations of
       The Controlled Substance, Drug, Device and Cosmetic and
       Uniform Firearms Acts.

PCRA Ct. Op., 10/28/14, at 1.

       In 2005, Appellant pled guilty and was sentenced as a “third
       strike” offender pursuant to the Three Strikes Law following his
       armed robbery of two victims . . . . Thereafter, in 2006,
       Appellant filed a PCRA petition wherein he successfully
       contended his sentence had been illegal. The sentencing court
       vacated Appellant’s original mandatory minimum sentence of
       twenty-five (25) years to fifty (50) years’ imprisonment and
       imposed a new sentence of fifteen (15) years to thirty (30) years
       in prison pursuant to a negotiated plea on February 20, 2007.
       On February 22, 2007, the sentencing court realized the second
       strike penalty was applicable to only one of the two robbery
       counts and vacated its February 20, 2007, sentence. Once
       again, Appellant entered a negotiated guilty plea . . . .

Commonwealth v. Howard, No. 3522 EDA 2008, at 1-2 (Pa. Super. Nov.

16, 2009). The trial court imposed an aggregate sentence of fifteen to thirty

years’ imprisonment. PCRA Ct. Op., 9/30/09, at 3.2

       Appellant filed a timely PCRA petition in 2008, and the court appointed

counsel. Counsel filed a motion to withdraw, which the PCRA court granted.

Appellant appealed pro se, claiming that his first PCRA counsel was

ineffective, the 15-30 year sentence was illegal, and the firearm charges

merged with the robbery charges for purposes of sentencing. PCRA Ct. Op.,




____________________________________________
2 Specifically, the court imposed a 10-20 year sentence on one robbery
count, a consecutive 5-10 year sentence for the second robbery count, and
concurrent sentences of 18-36 months and 12-24 months for two firearms
counts. N.T., 2/22/07, at 5-6.


                                           -2-
J-S57023-17


9/30/09, at 24. This Court affirmed, rejecting each contention.      Howard,

No. 3522 EDA 2008, at 6.

      In June of 2014, Appellant, pro se, filed his second PCRA petition,

claiming that his sentence was illegal under Alleyne v. United States, 133

S. Ct. 2151 (2013).       The PCRA court dismissed Appellant’s petition as

untimely, and this Court affirmed. Commonwealth v. Howard, No. 2790

EDA 2014, at 3.

      On September 28, 2016, the court docketed Appellant’s third PCRA

petition, which alleged that the PCRA court’s denial of his first PCRA petition

was not a final order because counsel was ineffective.         After issuing a

Pa.R.Crim.P. 907 notice, the PCRA court dismissed the petition on October 3,

2016. Appellant appealed, but subsequently discontinued his appeal.

      On January 27, 2017, the court docketed the petition that currently is

before us, which Appellant styled as a petition for a writ of habeas corpus.

The petition claimed that the PCRA court erred by denying Appellant’s first

PCRA petition, and that his appointed PCRA counsel was ineffective.

Appellant also reiterated his claim that his 15-30 year sentence was illegal.

The PCRA court issued a Rule 907 notice which, among other things,

construed Appellant’s petition as a fourth PCRA petition, and Appellant filed a

response in opposition.    The PCRA court dismissed Appellant’s petition as

untimely, and Appellant then filed this appeal. Appellant raises one issue:

“Whether the trial court abused its discretion in dismissing Appellant’s


                                     -3-
J-S57023-17


Petition for Habeas Corpus Relief since his confinement is based on a PCRA

proceeding that denied due process?” Appellant’s Brief at 3.

      The PCRA court construed Appellant’s habeas corpus petition as a

PCRA petition and then dismissed it because it failed to meet the

jurisdictional requirements in the PCRA for the timely filing of a petition. We

conclude that the PCRA court’s disposition was correct.      First, Appellant’s

petition was properly treated as a petition for relief under the PCRA:

      It is well-settled that the PCRA is intended to be the sole means
      of achieving post-conviction relief. 42 Pa.C.S. § 9542 . . . .
      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. . . .
      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, 465-66 (Pa. Super. 2013) (some

citations and footnote omitted). Second, because this was a PCRA petition,

the PCRA’s time limits apply:

      The timeliness of a post-conviction petition is jurisdictional.
      Generally, a petition for relief under the PCRA, including a
      second or subsequent petition, must be filed within one year of
      the date the judgment is final unless the petition alleges and the
      petitioner proves one of the three exceptions to the time
      limitations for filing the petition set forth in Section 9545(b)(1)
      of the statute.4 A PCRA petition invoking one of these statutory
      exceptions must be filed within 60 days of the date the claims
      could have been presented. Asserted exceptions to the time
      restrictions for the PCRA must be included in the petition, and
      may not be raised for the first time on appeal. This Court’s
      standard of review regarding an order dismissing a petition
      under the PCRA is to determine whether the determination of the
      PCRA court is supported by the evidence of record and is free of
      legal error.

                                     -4-
J-S57023-17



      4   The three exceptions to the timeliness requirement are:

           (i) the failure to raise the claim previously was the result
           of interference of 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. § 9545(b)(1).

Commonwealth v. Furgess, 149 A.3d 90, 93 & n.4 (Pa. Super. 2016)

(quotation marks and most citations omitted).

      Appellant contends the court erred by relying on first PCRA counsel’s

“no merit” letter and granting counsel’s petition to withdraw.       Appellant’s

Brief at 9.    Appellant posits that this treatment violated due process, and

thus brings his petition outside the scope of the PCRA.         Id. at 10.   He

makes an unsupported claim that his PCRA counsel provided ineffective

representation because counsel engaged in some unspecified fraud. Id. at

11-12.

      After careful review of the record, the parties’ briefs, and the decision

of the Honorable James P. Bradley, we affirm on the basis of the PCRA

court’s decision.      See PCRA Ct. Op., 5/11/17, at 3-6 (holding that

                                       -5-
J-S57023-17


Appellant’s claims in his petition for a writ of habeas corpus fall within the

scope of the PCRA, and thus his petition should be construed as a PCRA

petition; the instant PCRA petition was untimely; and “a claim of ineffective

assistance of counsel does not save an otherwise untimely petition for

review on the merits”). Because the PCRA court did not err, we affirm the

order below. The parties are instructed to attach a copy of the PCRA court’s

decision to any pleadings that reference it.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2017




                                     -6-
                                                                           Circulated 10/25/2017 03:37 PM




 IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
                       CRIMINAL DIVISION




COMMONWEALTH OF PENNSYLVANIA                       CP-23-CR-5241-2004

                     vs.

       MITCHELL HOWARD A/K/A
          HOWARD MITCHELL

A. Sheldon Kovach, Esquire,      on behalf of the Commonwealth
Mitchell Howard, prose

                                     OPINION
Bradley, l .                                   FILED:    6lri 111

      . Petitioner, Howard Mitchell, has filed a timely Notice of Appeal from the April 6,

2015 Order dismissing his untimely serial Post Conviction Relief Act (PCRA) petition.

       On April 31, 2004 the Petitioner, Mitchell Howard, committed armed robbery at a

Radio Shack store in Upper Darby, PA. He entered the store, robbed two employees at

gunpoint and fled with, inter alia, the store manager's wallet, over $1,000.00 in cash,

and a cannon Video Camcorder. A radio call went out and plain clothes police officers in

the immediate area approached the Petitioner, who matched the description of the

robber. Petitioner attempted to flee but he was apprehended. He had a fully loaded

handgun, a large sum of cash, the store manager's wallet, a bag containing controlled

substances and his own photo identification card and the stolen Cannon camcorder in
gave rise to a plethora of robbery arid theft charges and alleged violations of The

Controlled Substance, Drug, Device and Cosmetic and Uniform Firearms Acts.

       Petitioner pied guilty to armed robbery and related offenses and was sentenced
              >

as a "third strike" offender on May 3, 2005. In 2006 pursuant to the Post Conviction

Relief Act he brought a successful claim challenging the legality of the mandatory

minimum sentence imposed. The PCRA court found that the sentence imposed was

illegal and on February 22, 2007 he again pied guilty and was sentenced to an

aggregate of fifteen to thirty years of incarceration. This sentence included a mandatory

minimum sentence as a second time offender pursuant to 42 Pa.CS.A. § 9714,

Sentences for second and subsequent offenses, for one of the two robberies.

       On February 13, 2008 Petitioner filed a pro se PCRA petition. Counsel was

appointed. Appointed counsel filed an application to withdraw accompanied by a "no

merit" letter. The PCRA Court gave Petitioner notice of its intent to dismiss the PCRA

petition on November 6, 2008. On November 26, 2008 the PCRA petition was dismissed

and counsel's application to withdraw was granted. Petitioner filed a timely appeal and

the order of the PCRA court was affirmed by the Superior Court on November 16, 2009.

       On June 23, 2014 Petitioner filed a second PCRA petition. The petition alleged



States, 133 S.Ct. 2151 (2013). Alleyne was decided on June 17, 2013. The Court gave

Petitioner notice of its intent to dismiss without a hearing and, after considering the

·Petitioner's response, the petition was dismissed on September 3, 2014. Petitioner filed

a timely Notice o                                                                     e


                                             2
  PCRA Court's conclusion that.the petition was untimely on May 1, 2015. In its Opinion in

  support the appellate court adopted the reasoning of the PCRA court. A Petition for

 Allowance of Appeal was denied by the Pennsylvania Supreme Court on November 10,

  2015.

          On September 28, 2016 a third PCRA petition was filed. It alleged that the

 Order dismissing the 2014 PCRA petition was not a "final order" and that PCRA counsel

 was ineffective in his representation. On October 24, 2016 the third PCRA petition was

 dismissed. Petitioner appealed from the dismissal. On January 10, 2017 the appeal was

· discontinued.

          The petition that is before the court was filed on January 27, 2017. Although

 Petitioner names this document a "petition for habeas corpus," the claim set forth

 therein falls within the purview of the PCRA. Specifically, Petitioner challenges the

 propriety of the dismissal of his 2008 petition following appointed counsel's withdraw

 upon submission of an application to withdraw and "no-merit" letter. Petitioner alleges,

 without factual support, that in 2008 appointed counsel perpetrated a fraud.

          A claim challenging PCRA counsel's stewardship is properly raised- in response to

 appointed counsel's application to withdraw and "no-merit" letter or a the court's Notice

. of Intent to Dismiss. See e. .    mmonwealth v. Pi s, 981 A.2d 875 (Pa. 2009);

 Commonwealth v. Ford, 44 A.3d 1190 (Pa. Super. 2012). An objection to the propriety

 of the "no-merit" letter that was filed in 2008 PCRA proceedings would have been

 properly raised in a timely matter in a response to the Notice of Intent to Dismiss that




                                               3
including habeas corpus, to the extent that a remedy is available under such

enactment. ~      Commonwealth v. Judge, 916 A.2d 511, 520 (Pa. 2007)        citing
Commonwealth v. Peterkin, 722 A.2d at 638 (Pa. 1998).

       Section 9543 of the PCRA provides, inter alia, that to be eligible for relief a

petitioner must plead and prove by a preponderance of the evidence that his conviction

resulted from one or more of the enumerated errors ordefects set forth in the Act. See

.e.,g. Commonwealth v. Carpenter, 725 A.2d 154 (Pa. 1999). Before a court may

consider any PCRA claim for relief the jurisdictional time requirements of the Act must

be satisfied. Section 9545 of the PCRA "Jurisdiction and Proceedings," provides in

pertinent part:

       (b) Time for filing petltlon.«
       (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 e y t at
      court to apply retroactively.
      (2) Any petition invoking an exception provided in paragraph (1) shall be
      filed within 60 days of the date the claim could have been presented.

      (3) For purposes of this subchapter, a judgment becomes final at the




                                             4
      Court of the United States and the Supreme Court of Pennsylvania, or at
      the expiration of time for seeking the review.

       ( 4) For purposes of this subchapter, "government officials" shall not include
       defense counsel, whether appointed or retained.

42 Pa.C.S.A. § 9543(b ).

      The time limits set forth in Section 9543 of the PCRA implicate the jurisdiction of

the court. Commonwealth v. Marshall, 947 A.2d 714 (Pa. 2008). The period for filing a

PCRA petition is not subject to the doctrine of "equitable tolllnq." The time for filing a

PCRA petition can be extended only if the PCRA permits it to be extended through one

of the statutorily enumerated exceptions to the PCRA time-bar. Commonwealth v.

Mitchell, 141 A.3d 1277, 1284 (Pa. 2016). "[TJhe one-year time limit for bringing a

petition under the PCRA cannot be circumvented by construing an untimely, serial PCRA

petition as if it were an 'extension' of a timely, but previously dismissed, first PCRA

petition in cases where an appeal was taken from the denial of the first petition but the

Superior Court ultimately dismissed the appeal when the PCRA appellant failed to file a

brief." Commonwealth v. Robinson, ·837 A.2d 1157 (Pa. 2003). Further, a claim of

ineffective assistance of counsel does not save an otherwise untimely petition for review

on the merits. See Commonwealth v. Robinson, supra,; Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 785 (Pa. 2000); Commonwealth v. Pursell, 749 A.2d 911, 915

(Pa. 2000); Commonwealth v. Lark, 746 A.2d 585, 589-90 (Pa. 2000). This well-settled

principle is applicable in this case.

          iti ner was sentenced on Februa         22, 2007. No post-sentence motions were

filed and no appeal was taken from judgment of sentence. Judgment of sentence

                                              5
became final on March 24, 2007, giving Petitioner to March 24, 2008, or one year after

the date judgment of sentence became final to challenge the legality of sentence. See

Commonwealth v. Fowler, 930 A.2d 586 (Pa. Super. 2007); Commonwealth v. Vega,

754 A.2d 714 (Pa. Super. 2000). The petition sub Judice is untimely on its face and

Petitioner has failed to plead facts that if proven satisfy an exception to the one-year

time requirement and the establish the jurisdiction of the court.



                                                 BY THE COURT:




                                                                                                                     J.




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