J-S29015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES JONES                                :
                                               :
                       Appellant               :   No. 2570 EDA 2017

                    Appeal from the PCRA Order July 7, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0907751-1993


BEFORE:      PANELLA, J., MURRAY, J., and STEVENS, P.J.E.

MEMORANDUM BY PANELLA, J.                          FILED SEPTEMBER 21, 2018

        James Jones appeals, pro se, from the order dismissing his petition for

writ of habeas corpus as an untimely Post Conviction Relief Act (“PCRA”)

petition. Jones argues his sentence of life imprisonment without parole was

illegal. We conclude the court properly treated Jones’s petition as a PCRA

petition. Additionally, the court properly found no exception to the PCRA’s

time-bar applied. We therefore affirm.

        A jury found Jones guilty of killing Francis Hamilton and shooting Charles

Hamilton while trying to rob the brothers. The court subsequently sentenced

Jones to life in prison, plus four to eight years. This Court affirmed the

judgment of sentence, and the Supreme Court of Pennsylvania denied

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   Former Justice specially assigned to the Superior Court.
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allowance of appeal on February 23, 1998. Jones did not file for writ of

certiorari with Supreme Court of the United States.

     Jones filed his first PCRA petition in 1999, and the PCRA court dismissed

it. In 2009, he filed his second PCRA petition. The PCRA court dismissed

Jones’s second PCRA petition as untimely. This Court affirmed, observing that

the petition was facially untimely, and that Jones had failed to establish an

exception to the PCRA’s time-bar. See Commonwealth v. Jones, No. 1438

EDA 2012, at 6-7 (Pa. Super., filed February 19, 2013) (unpublished

memorandum).

     This appeal arises from Jones’s most recent collateral petition, which he

filed on September 29, 2014. Jones presented eight issues in his pro se

petition, each one requesting that his sentence be vacated and/or reduced.

He asserted his claims were not cognizable under the PCRA, and thus not

subject to the PCRA’s time bar provisions. In the alternative, he argued that

Miller v. Alabama, 567 U.S. 460 (2012) (holding mandatory life without

parole sentences imposed on juveniles are unconstitutional), Montgomery v.

Louisiana, 136 S.Ct. 718 (2015) (determining Miller applies retroactively

during collateral proceedings), and Alleyne v. United States 133 S.Ct. 2151

(2013) (holding disputed facts that support the imposition of a mandatory

minimum sentence must be submitted to a jury for determination), constitute

newly recognized rights sufficient to qualify for an exception to the PCRA’s

time bar.


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       The argument section of Jones’s brief on appeal verges on incoherent.

To the best of our ability to decipher his claims, we recognize Jones seeks to

raise the same eight arguments before this Court. To the extent Jones sought

to raise any issue not addressed here, we conclude such issue is waived for

failure to coherently raise it on appeal.

       First, Jones contends the court improperly treated his petition as a PCRA

petition. If “a defendant’s post-conviction claims are cognizable under the

PCRA, the common law and statutory remedies now subsumed by the PCRA

are not separately available to the defendant.” Commonwealth v. Hall, 771

A.2d 1232, 1235 (Pa. 2001) (citations omitted). It is well settled that the PCRA

subsumes the remedy of habeas corpus when the PCRA offers a remedy. See

Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007). And the PCRA

offers a remedy to prisoners who claim they are serving an illegal sentence.

See Commonwealth v. Burkett, 5 A.3d 1260, 1275 (Pa. Super. 2010). As

all of Jones’s substantive claims seek the elimination or reduction of his

sentence, the court properly treated his petition as a PCRA petition.

       Next, Jones arguably claims that he has established an exception to the

PCRA’s time bar.1 Jones contends he is entitled to relief under the newly

recognized constitutional right exception, 42 Pa.C.S.A. § 9545(b)(1)(iii).




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1 To the best we can parse Jones’s brief, we can find no passage that even
arguably claims his petition was facially timely under the PCRA.

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      With respect to his claims pursuant to Miller and Montgomery, we

note those decisions are explicitly limited to juvenile defendants. See Miller,

567 U.S. at 465; Montgomery, 136 S.Ct. at 736. A petitioner who was not a

juvenile at the time of his crime may not invoke these cases to establish an

exception to the PCRA’s time-bar. See Commonwealth v. Woods, 179 A.3d

37, 44 (Pa. Super. 2017); Commonwealth v. Furgess, 149 A.3d 90, 94 (Pa.

Super. 2016).

      The criminal information filed against Jones in 1993 indicated his birth

date was May 9, 1967. The information further identified the date of the

murder of Francis Hamilton as July 22, 1993. Thus, Jones was 25 years old

when he committed these crimes. He cannot gain relief from Miller and

Montgomery.

      With respect to his claim under Alleyne, our Supreme Court has held

that “Alleyne does not apply retroactively to cases pending on collateral

review….” Commonwealth v. Washington, 142 A.3d 810, 820 (Pa. 2016).

Jones’s sentence became final in 1998, see Jones, supra, at 5, while Alleyne

was published in 2013.

      Furthermore, the record belies Jones’s contention that he received a

mandatory minimum sentence based upon facts not presented to the jury. He

received a sentence of life imprisonment without the possibility of parole based

upon the jury’s verdict that he committed first-degree murder. This sentence

was a mandatory minimum sentence, but it did not require any judicial fact-


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finding. As such, even if we addressed Jones’s claim on the merits, he would

be due no relief.

      Finally, Jones contends he is entitled to relief under Martinez v. Ryan,

566 U.S. 1 (2012). In Martinez, the Supreme Court of the United States

recognized that “for purposes of federal habeas corpus relief, inadequate

assistance of counsel at initial-review collateral proceedings may establish

cause for a prisoner’s procedural default of a claim of ineffective assistance of

trial counsel.” Commonwealth v. Saunders, 60 A.3d 162, 165 (Pa. Super.

2013) (emphasis supplied; citation and internal quotation marks omitted).

Martinez is therefore “of no moment with respect to the way Pennsylvania

courts apply the plain language” of the PCRA’s time bar. Id. Jones is due no

relief under Martinez.

      In summary, the PCRA court properly treated Jones’s petition as a PCRA

petition. And it correctly determined Jones’s petition was untimely under the

PCRA. We therefore affirm the order dismissing Jones’s petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/21/18



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