J-S68008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                      v.                       :
                                               :
                                               :
JERRY EUGENE WILSON                            :
                                               :
                       Appellant               :   No. 343 MDA 2017

               Appeal from the PCRA Order January 20, 2017
    In the Court of Common Pleas of Dauphin County Criminal Division at
                      No(s): CP-22-MD-0001703-1984


BEFORE:      LAZARUS, J., DUBOW, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                             FILED JANUARY 10, 2018

       Jerry Eugene Wilson appeals from the order, entered in the Court of

Common Pleas of Dauphin County, dismissing his petition for writ of habeas

corpus, which the trial court treated as an untimely petition for collateral relief

under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

Upon review, we affirm.

       In 1985, a jury found Wilson guilty of first-degree murder; on June 4,

1985, the trial court sentenced him to a mandatory term of life imprisonment

without the possibility of parole.        In or around 1989, Wilson filed his first

petition for collateral relief,1 which the trial court denied. On May 11, 2012,

Wilson filed a second PCRA petition, pro se, and on March 25, 2013, he filed

an amended petition for post-conviction relief.         There, Wilson argued the
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1 Wilson filed his first petition for collateral relief under the PCRA’s
predecessor, the Post Conviction Hearing Act.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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United State Supreme Court’s decision in Lafler v. Cooper, 132 S. Ct. 1376,

1384 (2012), created a new constitutional right entitling him to post-

conviction relief. The trial court denied Wilson’s second petition by order, and

this Court affirmed. Commonwealth v. Wilson, 1873 MDA 2013 (Pa. Super.

June 24, 2014).     On December 21, 2016, Wilson filed the instant writ of

habeas corpus. On January 20, 2017, the trial court denied Wilson’s petition,

finding it was untimely under the PCRA. On February 17, 2017, Wilson filed

a timely notice of appeal. Both Wilson and the PCRA court have complied with

Pa.R.A.P. 1925. On appeal, Wilson raises the following issues:

      1. Whether the trial court erred by treating [Wilson’s] writ of
         habeas corpus as a PCRA where the claim asserted was not
         cognizable under the PCRA statute vesting jurisdiction in the
         trial court?

      2. Whether 18 Pa.C.S.[A.] § 1102(a) violates the void for
         vagueness doctrine where it fails to give notice to a person of
         ordinary intelligence that the term life imprisonment means life
         without parole?

      3. Whether a reviewing court has statutory authority to impose a
         sentence of life without parole where Pa.C.S.[A.] § 1102(a)
         does not provide language suggesting parole cannot be issued.

Brief of Appellant, at 4.

      The PCRA is intended to be the sole means of achieving post-conviction

relief. 42 Pa.C.S.A. § 9542; Commonwealth v. Taylor, 65 A.3d 462, 465

(Pa. Super. 2013). See Commonwealth v. Peterkin, 722 A.2d 638, 640

(Pa. 1998) (PCRA subsumes remedy of habeas corpus with respect to

remedies offered under PCRA).      Unless the PCRA does not provide for a



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potential remedy, the PCRA statute subsumes the writ of habeas corpus.

Taylor, 65 A.3d at 466. Issues that are cognizable under the PCRA must be

raised in a timely PCRA petition and cannot be raised in a habeas corpus

petition; a defendant cannot escape the PCRA time-bar by titling his petition

for relief as a writ of habeas corpus. Id.

       Instantly, Wilson claims that his challenge to the constitutionality of

section 1102(a) is not cognizable under the PCRA, and thus, the PCRA court

erred in construing his writ of habeas corpus as a PCRA petition. Specifically,

Wilson avers that section 1102(a)(1) violates the void-for-vagueness

standard.     Section 1102(a)(1) provides in relevant part as follows:          “[A]

person who has been convicted of a murder of the first degree . . . shall be

sentenced to death or a term of life imprisonment[.]” 18 Pa.C.S.A. §

1102(a)(1) (emphasis added).2

       Wilson’s void-for-vagueness claim invokes a constitutional question.

Duly enacted legislation is presumed valid, and unless it clearly, palpably, and

plainly violates the Constitution, it will not be declared unconstitutional. 1

Pa.C.S.A. § 1922(3) (“[T]he General Assembly does not intend to violate the

Constitution     of   the   United     States    or   this   Commonwealth.”);   See

Commonwealth v. Davidson, 938 A.2d 198, 207 (Pa. 2007). “Under the

void-for-vagueness standard, a statute will only be found unconstitutional if
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2 Section 6137 of the Prisons and Parole Code, which provides that “the
[parole] board may . . . release on parole any inmate . . . except an inmate
. . . serving life imprisonment,” was not in effect when Wilson was
sentenced in 1985. 61 Pa.C.S.A. § 6137(a)(1) (emphasis added).

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the statute is so vague that persons of common intelligence must necessarily

guess at its meaning and differ as to its application.” Davidson, 938 A.2d at

207 (Pa. 2007) (quotations and citations omitted). A statute will pass a void-

for-vagueness constitutional challenge if it “defines the criminal offense with

sufficient definiteness that ordinary people can understand what conduct is

prohibited and in a manner that does not encourage arbitrary and

discriminatory enforcement.”        Id. (quotations, citations and brackets

omitted).

      Our Supreme Court has held that a claim that a defendant’s

constitutional   rights   were   violated   is   cognizable   under   the   PCRA.

Commonwealth v. Peterkin, 722 A.2d at 640-641. Therefore, the writ of

habeas corpus is unavailable to advance an averment that a statute is

unconstitutional under the void-for-vagueness standard.           Wilson’s claim

challenging the constitutionality of section 1102(a)(1), under which he was

sentenced, is therefore, cognizable under the PCRA. Accordingly, the PCRA is

the sole means by which Wilson may seek relief for his claim. Taylor, supra.

      Having established that the PCRA court properly treated Wilson’s habeas

petition as a PCRA petition, we must address the petition’s timeliness; the

PCRA time limitations implicate our jurisdiction and may not be altered to

address the merits of a petition.    Commonwealth v. Johnson, 803 A.2d

1291, 1294 (Pa. Super. 2002) (Superior Court lacks jurisdiction to reach

merits of appeal from untimely PCRA petition).




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      Generally, a PCRA petition must be filed within one year of the date the

judgment of sentence becomes final unless the petitioner meets his burden to

plead and prove      one   of the   exceptions enumerated in         subsections

9545(b)(1)(i)-(iii), which provides as follows:

      (b) Time for filing petition.–

            (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 petitioner
            alleged 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. § 9543(b)(3). Any petition attempting to invoke one of these

exceptions “shall be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2).

      Wilson was sentenced to life imprisonment on June 27, 1985.             On

December 4, 1986, this Court affirmed Wilson’s judgment of sentence.          In

1987, following the expiration of the thirty day period in which Wilson was

allowed to seek review in our Supreme Court, Wilson’s judgment of sentence

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became final. Wilson advances no argument that his petition falls under any

of the exceptions enumerated in section 9545(b). Thus, this petition, filed

approximately thirty years after Wilson’s judgment of sentence became final,

is facially untimely.3

         The PCRA court properly concluded that the instant petition is cognizable

under the PCRA and that it lacked jurisdiction. Its decision is free of legal

error.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/2018




____________________________________________


3 In 1995, our Legislature amended the PCRA, adding the timeliness provisions
of section 9545(b). The 1995 amendments provided a grace period for
petitioners whose judgment of sentence became final on or before the January
16, 1996 effective date of the amendments. However, the grace period
applies only to the first petitions filed by January 16, 1997.            See
Commonwealth v. Thomas, 718 A.2d 326, 329-30 (Pa. Super. 1998) (en
banc). As Wilson’s current petition was his second attempt at post-conviction
relief and was filed more than one year after his judgment of sentence became
final, this exception does not apply.

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