J-S04011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
ANTHONY GLEN WRIGHT                        :
                                           :
                    Appellant              :   No. 1503 MDA 2017

             Appeal from the PCRA Order September 13, 2017
    In the Court of Common Pleas of Franklin County Criminal Division at
                      No(s): CP-28-CR-0000193-2009


BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                            FILED APRIL 09, 2018

     Appellant, Anthony Glen Wright, appeals pro se from the order denying

his pro se “Petition for Writ of Habeas Corpus.” We affirm.

           [Appellant] was charged with Involuntary Deviate Sexual
     Intercourse,1 Aggravated Indecent Assault,2 and Indecent
     Assault3 and was convicted of all counts by a jury on October 6,
     2009. On June 4, 2010, [Appellant] was sentenced to ninety to
     two hundred-forty months incarceration.      [Appellant] filed a
     timely Post-Sentence Motion on June 14, 2010, which was
     denied by the Honorable Judge Richard J. Walsh, now retired, on
     August 20, 2010. [Appellant] filed a timely Notice of Appeal of
     the Court’s denial of his Post-Sentence Motion on September 8,
     2010.    On August 19, 2011, the Superior Court affirmed
     [Appellant’s] Judgment of Sentence.4 [Appellant] did not appeal
     the Superior Court’s decision to the Pennsylvania Supreme
     Court.

           1   18 Pa. C.S.A. §3123(a)[(7)]

           2   18 Pa. C.S.A. §3125(a)(7)

           3   18 Pa. C.S.A. §3126(a)(7)


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              4 Because [Appellant] did not originally serve the
              Trial Court with his Concise Statement of Matters
              Complained of on Appeal, filed on September 27,
              2010, the Superior Court remanded the case for
              proper service to be made on the Trial Court.
              [Appellant] filed and served his Concise Statement of
              Matters Complained of on Appeal and the record was
              transmitted for a second time to the Superior Court
              on July 13, 2011. Thereafter, the Superior Court
              issued    its    memorandum       opinion    affirming
              [Appellant’s] Judgment of Sentence.

               On August 17, 2012, [Appellant] filed his first PCRA[1]
        Petition, which was filed by retained counsel. On November 15,
        2012, [Appellant] filed an Amended PCRA Petition through
        retained counsel.     The Commonwealth filed an Answer on
        January 28, 2013, and a hearing was held on April 29, 2013.
        The Trial Court issued an Opinion and Order denying
        [Appellant’s] PCRA Petition on July 3, 2013. On July 30, 201[3],
        [Appellant] filed a timely Notice of Appeal of the Trial Court’s
        denial of [Appellant’s] PCRA Petition.       The Superior Court
        affirmed the Trial Court’s dismissal of [Appellant’s] PCRA Petition
        on March 14, 2014.

               [Appellant] filed a Second PCRA Petition on April 9, 2014,
        on his own behalf, which was presided over by the undersigned.
        However, [Appellant] subsequently retained counsel Edward
        Qaquish, Esq. for PCRA proceedings. Attorney Qaquish filed a
        Petition for Leave to Withdraw as Counsel and a Turner/Finley[2]
        Letter on November 20, 2014. On December 4, 2014, this
        [c]ourt issued an Order notifying [Appellant] its intent to dismiss
        [Appellant’s] Second PCRA Petition and granted Attorney
        Qaquish leave to withdraw. [Appellant] filed an Answer to the
        [c]ourt’s Order of Intent to Dismiss on January 16, 2015. The
        undersigned issued an Order dismissing [Appellant’s] Second
        PCRA Petition on January 29, 2015. [Appellant] filed a Notice of
        Appeal Nunc Pro Tunc and Concise Statement of Matters
____________________________________________


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

2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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        Complained of on Appeal on his own behalf on June 4, 2015.
        The Superior Court issued a memorandum opinion on May 3,
        2016, affirming this [c]ourt’s dismissal of [Appellant’s] Second
        PCRA Petition.

               On July 28, 2017, [Appellant] filed on his own behalf a
        Petition for Writ of Habeas Corpus seeking relief on the basis
        that he is in prison for a different crime than he was convicted.
        Specifically, [Appellant] claims that he is being detained under
        18 Pa. C.S.A. §3123(a)(6), when he was convicted under
        §3123(a)(7).[3]     On August 8, 2017, this [c]ourt issued an
        extended Order notifying [Appellant] of its intent to dismiss his
        Petition without a hearing. [Appellant] filed an Answer to the
        [c]ourt’s Order on August 17, 2017, and this [c]ourt dismissed
        [Appellant’s] Petition on September 13, 2017. [Appellant] filed a
        timely Notice of Appeal on September 21, 2017.[4]

PCRA Court Opinion, 10/16/17, at 1-3 (footnote omitted).

        Appellant presents the following issues for our review:

        A.      Did the trial court err in dismissing Mr. Wrights petition for
        Writ of Habeas Corpus as a untimely filed PCRA petition utilizing
        inquiry procedure under 42 Pa.C.S.§9545(b)(1), a standard
        applicable to the dismissal of a PCRA petition, when a Due
        Process challenge based upon his unlawful restraint and the
        validity of his continued detention for a crime he was NOT
        convicted of, falls outside the scope of the PCRA? AND, without
        addressing Wrights claim that pursuant to 42 PA.C.S. §9543
        irregardless of timely filing, the, PCRA does not provide Wright
        an opportunity to challenge his continued detention for a crime
        he was not convicted of. Thus Resulting in the denial of his
        Constitutional right to be heard on a Substantive and or
        Procedural Due Process Rights violation.


____________________________________________


3In its opinion, the PCRA court incorrectly states that Appellant was charged
and convicted under Section 3123(a)(6), despite acknowledging that Section
3123(a)(6) was deleted in 2002. PCRA Court Opinion, 10/16/17, at 3 n. 5.

4   Appellant and the court of common pleas complied with Pa.R.A.P. 1925.



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      B.     Did the trial court violate Substantive and or Procedural
      Due Process, by Sua Sponte and or erroneously entering upon
      the official record, a determination that Wright was guilty of
      violating section §3123(a)(6)? AND now by continuing to
      unlawfully detain and or confine Mr. Wright under this
      enumerated offense, after it had been brought to the courts
      attention, that this is a separate offense he was NOT convicted
      of by his jury and on which his jury was never instructed?

Appellant’s Brief at 4-5 (verbatim).

      Appellant argues that he is being unlawfully restrained.      Appellant’s

Brief at 11.   Specifically, Appellant asserts that he is being unlawfully

detained under the enumerated offense of involuntary deviate sexual

intercourse (“IDSI”) pursuant to 18 Pa.C.S. § 3123(a)(6), a crime for which

he was not convicted by a jury.        Id.   He further contends that he is not

eligible to seek relief under the PCRA pursuant to the requirements in 42

Pa.C.S. § 9543 because his claim is not cognizable under the PCRA, and

therefore, his claim is properly raised in a writ for habeas corpus. Id. at 11-

13, 16. According to Appellant, the trial court mistakenly treated his petition

for writ of habeas corpus as a PCRA petition and dismissed it as untimely.

Id. at 12. Appellant contends that “the PCRA time bar does NOT apply, as

[Appellant] did not seek relief under the PCRA, because a challenge to the

legality of his continued detention for a crime he was NOT convicted of, is

NOT a challenge to the conviction or sentence, and as such falls outside the

scope of the PCRA.” Id. at 13 (emphasis in original).

      We note the following tenets of law when addressing the merits of a

petition for writ of habeas corpus:

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             The availability of habeas corpus in Pennsylvania is both
      prescribed and limited by statute. See 42 Pa.C.S. §§ 6502
      (Power to issue writ); 6503 (Right to apply for writ). Subject to
      these provisions, the writ may issue only when no other remedy
      is available for the condition the petitioner alleges or available
      remedies are exhausted or ineffectual. See Reese, 774 A.2d at
      1260. Thus, “habeas corpus should not be entertained . . .
      merely to correct prison conditions which can be remedied
      through an appeal to prison authorities or to an administrative
      agency.” Commonwealth ex rel. Bryant v. Hendrick, 444
      Pa. 83, 280 A.2d 110, 113 (1971). Moreover, “it is not the
      function of the courts to superintend the treatment and discipline
      of prisoners in penal institutions.” Id. Accordingly, the writ may
      be used only to extricate a petitioner from illegal confinement or
      to secure relief from conditions of confinement that constitute
      cruel and unusual punishment. See Id.; Weaver v. Pa. Bd. of
      Probation and Parole, 688 A.2d 766, 775 n. 17 (Pa. Cmwlth.
      1997). “[T]he failure or refusal of prison authorities to exercise
      discretion in a particular way may not be reviewed in a habeas
      corpus proceeding.” Commonwealth ex rel. Tancemore v.
      Myers, 189 Pa. Super. 270, 150 A.2d 180, 182 (1959).

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

Super. 2002).

      Because the writ may be used only to extricate a petitioner from illegal

confinement or to secure relief from conditions of confinement that

constitute cruel and unusual punishment, we must determine whether either

circumstance is being pled here. In the petition for writ of habeas corpus

presently before us, Appellant argues that he is being illegally detained.

      Although Appellant’s claim facially implicates one of the two bases for

invocation of a writ of habeas corpus, that he is being unlawfully detained,

closer scrutiny of Appellant’s asserted basis for this unlawful detention

reflects that he claims he is being detained under an improper sentence.


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Specifically, Appellant avers that he is serving a sentence for a crime for

which he has not been convicted, specifically IDSI under Section 323(a)(6).5

Accordingly, Appellant’s claim is properly deemed a challenge to his

sentence.

        The PCRA “provides for an action by which persons convicted of crimes

they did not commit and persons serving illegal sentences may obtain

collateral relief.”    Commonwealth v. Jackson, 30 A.3d 516, 518 (Pa.

Super. 2011) (quoting 42 Pa.C.S. § 9542). See also Commonwealth v.

Rivera, 95 A.3d 913, 915 (Pa. Super. 2014) (stating that “[i]f no statutory

authorization exists for a particular sentence, that sentence is illegal and

subject to correction.”); Commonwealth v. Hackett, 956 A.2d 978, 986

(Pa. 2008) (explaining that when considering what types of claims are

cognizable under the PCRA, “the scope of the PCRA eligibility requirements

should not be narrowly confined to its specifically enumerated areas of

review.”).

        Furthermore, claims that are cognizable under the PCRA must be

considered within the context of the PCRA.          As we have explained in

considering whether habeas corpus petitions should be treated as PCRA

petitions:

        It is well-settled that the PCRA is intended to be the sole means
        of achieving post-conviction relief.       42 Pa.C.S. § 9542;
____________________________________________


5   Appellant does not contest that he was convicted of IDSI.



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      Commonwealth v. Haun, 32 A.3d 697 (Pa. 2011). Unless the
      PCRA could not provide for a potential remedy, the PCRA statute
      subsumes the writ of habeas corpus. Fahy, supra at 223–224;
      Commonwealth v. Chester, 557 Pa. 358, 733 A.2d 1242
      (1999). Issues that are cognizable under the PCRA must be
      raised in a timely PCRA petition and cannot be raised in a habeas
      corpus petition. See Commonwealth v. Peterkin, 554 Pa.
      547, 722 A.2d 638 (1998); see also Commonwealth v.
      Deaner, 779 A.2d 578 (Pa. Super. 2001) (a collateral petition
      that raises an issue that the PCRA statute could remedy is to be
      considered a PCRA 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, 465-466 (Pa. Super. 2013).

Accordingly, we are constrained to review Appellant’s petition within the

context of the PCRA.

      Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA

court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011).      The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id.

      Before addressing the merits of Appellant’s petition, we must consider

whether the petition was timely filed. A PCRA petition must be filed within

one year of the date that the judgment of sentence becomes final.          42

Pa.C.S. § 9545(b)(1). This time requirement is mandatory and jurisdictional

in nature, and the court may not ignore it in order to reach the merits of the

petition.   Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.


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2013). A judgment of sentence “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.” 42 Pa.C.S. § 9545(b)(3).

       However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.6 A petition invoking one of these exceptions must be filed

within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2).         In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove


____________________________________________


6   The exceptions to the timeliness requirement are:

       (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. § 9545(b)(1)(i), (ii), and (iii).




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specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Hernandez, 79 A.3d at 652.

        Here, the trial court sentenced Appellant on June 4, 2010, and this

Court    affirmed     the   judgment      of   sentence   on   August   19,   2011.

Commonwealth v. Wright, 32 A.3d 839, 1480 MDA 2010 (Pa. Super. filed

August 19, 2011) (unpublished memorandum). No petition for allowance of

appeal was filed in the Pennsylvania Supreme Court. Therefore, Appellant’s

judgment of sentence became final on September 19, 2011,7 when the time

to file a petition for allowance of appeal expired.        See Pa.R.A.P. 1113(a)

(thirty-day period for filing petition for allowance of appeal from entry of

Superior Court order); 42 Pa.C.S. § 9545(b)(3) (providing that “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.”).

Accordingly, in order to be timely, any PCRA petition had to be filed before

September 19, 2012. Appellant filed the instant petition on July 28, 2017.

Thus, Appellant’s instant petition is patently untimely.

____________________________________________


7 Because the thirtieth day of the appeal period fell on September 18, 2011,
a Sunday, the judgment of sentence became final on the following business
day, Monday, September 19, 2011. See 1 Pa.C.S. § 1908 (stating that, for
computations of time, whenever the last day of any such period shall fall on
Saturday or Sunday, or a legal holiday, such day shall be omitted from the
computation.); Commonwealth v. Green, 862 A.2d 613, 618 (Pa. Super.
2004).



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       As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may nevertheless be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file

his petition within sixty days of the date that the exception could be

asserted.     42 Pa.C.S. § 9545(b)(2).         This is true despite the fact that

Appellant’s petition presents a challenge to the legality of his sentence. See

Commonwealth v. Fowler, 930 A.2d 586, 592 (Pa. Super. 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.”).

       Here, Appellant has failed to assert any exception to the PCRA time-

bar.   We further recognize that apart from Appellant’s self-serving bald

assertions that he is being unlawfully detained pursuant to Section

§ 3123(a)(6), a crime of which he claims he was not convicted, there is no

evidence of record supporting that contention.        Indeed, the record reflects

that Appellant was charged and convicted under 18 Pa.C.S. § 3123(a)(7).

The criminal information reflects that charge.8          Criminal Information on


____________________________________________


8 We note that the information includes handwritten notes changing the
relevant subsection from (a)(6) to (a)(7), and asserting additional facts that
support such charge.     The handwritten notes are initialed and dated
September 14, 2009. Information on Count 1, 3/9/09, at 1. Appellant’s
(Footnote Continued Next Page)


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Count 1, Involuntary Deviate Sexual Intercourse, 3/9/09, at 1.              At the

preliminary charge, the trial judge explained to the jury that Appellant was

being charged with IDSI under subsection 3123(a)(7). N.T., 10/5/09, at 5.

Additionally, in both the Commonwealth’s opening and closing statements,

the district attorney stated that Appellant was being charged with Section

3123(a)(7). N.T., 10/5/09, at 10 (opening statement); N.T., 10/6/09, at 44

(closing statement).      The jury charge consisted of the elements necessary

for a conviction under Section 3123(a)(7). N.T., 10/6/09, at 99-100. The

verdict colloquy also reflects that Appellant was charged with Section

3123(a)(7).      N.T., 10/6/09, at 112.           The verdict slip established that

Appellant was charged with 18 Pa.C.S. § 3123(a)(7). Verdict Slip, 10/6/09,

at 1.   Moreover, the record reflects that Appellant was sentenced under

Section 3123(a), although the sentencing order does not identify a

subsection.9     Sentencing Order for IDSI, 6/4/10, at 1.           The sentencing

transcript also reflects that Appellant was being sentenced on the conviction

of IDSI, without specifying the subsection. N.T., 6/4/10, at 59. Accordingly,

the record establishes that Appellant was charged, convicted, and sentenced
(Footnote Continued) _______________________

trial took place on October 5 and 6, 2009. Accordingly, the record reflects
that the amendment was made prior to Appellant’s trial.

9  Section 3123(a) states that the conviction under subsections (a)(1)
through (a)(7) constitute felonies of the first degree. Thus, even if (a)(6)
had not been deleted, the grading of convictions under (a)(6) and (a)(7)
would have been the same. 18 Pa.C.S. § 3123(a).




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pursuant to 18 Pa.C.S. § 3123(a)(7).               There is no evidence, nor does

Appellant cite to any, that he is being unlawfully detained pursuant to

Section 3123(a)(6).10

       Consequently, because the instant PCRA petition was untimely and no

exceptions apply, the PCRA court lacked jurisdiction to address the claims

presented and grant relief.         See Commonwealth v. Fairiror, 809 A.2d

396, 398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to

hear untimely petition).        Likewise, we lack the authority to address the

merits of any substantive claims raised in the PCRA petition.                    See

Commonwealth           v.   Bennett,      930      A.2d   1264,   1267   (Pa.   2007)

(“[J]urisdictional time limits go to a court’s right or competency to adjudicate

a controversy.”).

       Order affirmed.




____________________________________________


10 We note that the lower court in its multiple opinions throughout the
procedural history of this case consistently and incorrectly refered to
Appellant’s conviction for IDSI as being under 18 Pa.C.S. § 3123(a)(6). As
stated above, the record reflects that Appellant was convicted under Section
3123(a)(7) on October 6, 2009. Despite its mistaken identification of the
incorrect IDSI subsection, the common pleas court properly recognized that
subsection 3123(a)(6) was deleted by 2002 Dec. 9, P.L. 1350, No. 162, § 2.
PCRA Court Opinion, 10/16/17, at 3 n.5.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/09/18




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