J. S28009/14

NON-PRECEDENTIAL DECISION              SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                     v.                  :
                                         :
JOSEPH BESTMAN,                          :         No. 3399 EDA 2012
                                         :
                          Appellant      :


                Appeal from the PCRA Order, November 7, 2012,
               in the Court of Common Pleas of Delaware County
                Criminal Division at No. CP-23-CR-0002168-2009


COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                     v.                  :
                                         :
JOSEPH BESTMAN,                          :         No. 3400 EDA 2012
                                         :
                          Appellant      :


                Appeal from the PCRA Order, November 7, 2012,
               in the Court of Common Pleas of Delaware County
                Criminal Division at No. CP-23-CR-0001313-2009


BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND PLATT,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:          FILED AUGUST 12, 2014

        Joseph Bestman appeals from the order of November 7, 2012, denying

his PCRA1 petition as untimely filed. We affirm.




* Retired Senior Judge assigned to the Superior Court.
1
    Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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        On July 16, 2009, appellant entered a negotiated guilty plea to one

count each of retail theft, obstruction of a government function, and



incarceration for resisting arrest, with credit for time served and immediate

parole. (Notes of testimony, 7/16/09 at 11.) On the charge of obstruction

of a government function, appellant received a sentence of one year of

probation to run concurrently with the sentence on resisting arrest. (Id. at

12.) On retail theft, appellant received a sentence of one year of probation

to run consecutively to the sentence on resisting arrest; therefore,



by one year of probation. (Id.)

        Appellant did not file post-sentence motions or take a direct appeal.

                                                  otion to re-open sentence

base

counsel failed to advise appellant, a Liberian national, of the immigration



PCRA petition and counsel was appointed. An amended petition was filed on



January 4, 1992, and was a juvenile at the time of his guilty plea.

Therefore, appellant argued that the court lacked jurisdiction to accept his

plea.




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      A hearing was held on August 11, 2011, at which both trial counsel,



denied on November 7, 2012.2 This timely appeal followed. Appellant has

complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the PCRA court has

filed a Rule 1925(a) opinion.


            of the 1995 amendments to the PCRA; therefore, the
            jurisdictional time limits established by those
            amendments govern this case. Commonwealth v.
            Fahy, 558 Pa. 313, 737 A.2d 214, 217-18 (1999). A
            PCRA petition, including a second or subsequent one,
            must be filed within one year of the date the

            unless he pleads and proves one of the three
            exceptions      outlined     in      42     Pa.C.S.
            § 9545(b)(1).[Footnote 2] Commonwealth v.
            Howard, 567 Pa. 481, 788 A.2d 351, 354 (2002). A
            judgment becomes final at the conclusion of direct
            review by this Court or the United States Supreme
            Court, or at the expiration of the time for seeking
            such review. 42 Pa.C.S. § 9545(b)(3); Howard, at

            jurisdictional; therefore, a court may not address the
            merits of the issues raised if the petition was not
            timely filed. Commonwealth v. Abu Jamal, 574
            Pa. 724, 833 A.2d 719, 723 24 (2003);
            Commonwealth v. Murray, 562 Pa. 1, 753 A.2d
            201, 203 (2000). The timeliness requirements apply
            to all PCRA petitions, regardless of the nature of the
            individual claims raised therein. Murray, at 203.
            The PCRA squarely places upon the petitioner the
            burden of proving an untimely petition fits within one
            of the three exceptions. See Commonwealth v.
            Bronshtein, 561 Pa. 611, 752 A.2d 868, 871 (2002)

2
  The hearing was held before the Honorable Charles C. Keeler, who also
                                                                      ed
from the bench and the matter was reassigned to the Honorable Gregory M.
Mallon.


                                    -3-
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            further requires a petition invoking one of these


            § 9545(b)(2).   On appeal from the denial of PCRA

            PCRA court are supported by the record and free of
                        Abu Jamal, at 723.

                  [Footnote 2] These exceptions are:
                      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

                  42 Pa.C.S. § 9545(b)(1)(i)-(iii).

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012).

                                                                         day,

August 17, 2009, when the time for filing a direct appeal expired.3

Therefore, appellant had until August 17, 2010 to file a timely PCRA petition.




3
  The actual 30th day fell on Saturday, August 15, 2009; therefore, appellant
had until the following Monday to file an appeal notice. 1 Pa.C.S.A. § 1908
(excluding weekends and holidays from the computation of time).


                                      -4-
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      Initially, we note that appellant was sentenced on July 16, 2009, to

3

it appears that appellant is no longer serving his sentence. 4 If so, then he is

ineligible for PCRA relief. Our supreme court has held that, to be eligible for




§ 9543(a)(1)(i).   As soon as his sentence is completed, the petitioner

becomes ineligible for relief, regardless of whether he was serving his

sentence when he filed the petition. Commonwealth v. Ahlborn, 699 A.2d

718, 720 (Pa. 1997); Commonwealth v. Matin, 832 A.2d 1141, 1143

(Pa.Super. 2003), appeal denied, 843 A.2d 1237 (Pa. 2004). In addition,

this court determined in Commonwealth v. Fisher, 703 A.2d 714

(Pa.Super. 1997), that the PCRA precludes relief for those petitioners whose

sentences have expired, regardless of the collateral consequences of their

sentence. Id. at 716 (citations omitted).

      At

applies to the statutory one-year time bar. Appellant attempted to invoke

the after-recognized constitutional right exception, relying on Padilla v.



4
  See
out that on case 1313 of 2009 [appellant] is no longer serving a sentence.
                                                               , which was
July 16, 2009; it was imposed on July 16, 2009. That 22 month [sic]
sentence expired in June of 2011. So for that additional reason [appellant]



                                     -5-
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Kentucky, 559 U.S. 356 (2010), in which the United States Supreme Court

held that counsel must inform his client whether his plea carries a risk of

deportation. However, this court determined in Commonwealth v. Garcia,

23 A.3d 1059 (Pa.Super. 2011), that Padilla did not recognize a new



review as an exception to the timeliness requirements of the PCRA.5

     Appellant also claims the trial court did not have subject matter

jurisdiction because he was a juvenile at the time of his plea.    Appellant

argues that Attorney Consadene should have filed a petition to transfer his

case to juvenile court.      According to appellant, his sentence is a



     Appellant is correct that generally, subject matter jurisdiction is

non-waivable; however, the issue would still have to be raised in a timely

PCRA petition.

           The timeliness requirements of the PCRA do not vary

           alleged therein . . . .   To the contrary, . . . the
                 s timeliness requirements . . . are intended to
           apply to all PCRA petitions, regardless of the nature

           Commonwealth v. Murray, 562 Pa. 1, 753 A.2d
           201, 202-
           requirements are mandatory and jurisdictional in
           nature, no court may properly disregard or alter

5
   We note that Attorney Consadene testified at the PCRA hearing that
appellant never told him he was a Liberian national, and he assumed he was
a United States citizen. (Notes of testimony, 8/11/11 at 12.) The issue
never came up, and Attorney Consadene had no reason to inform appellant
of the immigration consequences of his plea. (Id.)


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             them in order to reach the merits of the claims
             raised in a PCRA petition that is filed in an untimely


Id. at 203.     Howard                                                    that a

sentence was illegal, an issue deemed incapable of being waived, are not

                                                  Commonwealth v. Grafton,

928   A.2d     1112,   1114      (Pa.Super.   2007),   citing   Fahy,     supra;

Commonwealth v. Beck, 848 A.2d 987 (Pa.Super. 2004).              Certainly, we



                                          -21.)

      Appellant has also filed a petition for remand, which this court denied

without prejudice to re-raise the issue in his appellate brief.         Appellant

claims he has after-discovered evidence proving that he was born on

January 4, 1992, including a Pennsylvania non-driver identification card.

      This is not after-discovered evidence for PCRA purposes where

appellant was certainly aware of his birthdate at the time of his plea.       In

fact, appellant testified at the PCRA hearing that he purposely lied to the

court about his age because he did not want his mother to know about his

arrest. (Notes of testimony, 8/11/11 at 35.) Appellant told the court that

he was 20 years old.     (Id.)   Attorney Consadene testified that the record

indicated appellant was born on October 19, 1988, and he had no reason to

think that date was incorrect.      (Id. at 13, 21-22.)   Attorney Consadene




                                      -7-
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would have had no basis for filing a petition to transfer the case to juvenile

court. (Id.)

      Appellant also argues that, in the alternative, he should be allowed to

pursue the matter in a state habeas corpus

23-24.) Appellant states that the remedy of habeas corpus is available for

the rare instances where the PCRA offers no remedy. (Id. at 23.)

            [T]he PCRA is the exclusive vehicle for obtaining
            post-conviction collateral relief. Commonwealth v.
            Bronshtein, 561 Pa. 611, 614 n. 3, 752 A.2d 868,
            869-70 n. 3 (2000). This is true regardless of the
            manner      in    which    the    petition is titled.
            Commonwealth v. Hutchins, 760 A.2d 50, 52 n. 1
            (Pa.Super.2000).        Indeed, the PCRA statute
            specifically provides for such treatment:

                  The action established in this subchapter
                  shall be the sole means of obtaining
                  collateral relief and encompasses all
                  other common law and statutory
                  remedies for the same purpose that exist
                  when this subchapter takes effect,
                  including habeas corpus and coram
                  nobis.

            42 Pa.C.S.A. § 9542. Simply because the merits of
            the PCRA petition cannot be considered due to
            previous litigation, waiver, or an untimely filing,
            there is no alternative basis for relief outside the
            framework of the PCRA.            See generally,
            Commonwealth v. Fahy, 558 Pa. 313, 332, 737
            A.2d 214, 223-224 (1999) (citing Commonwealth
            v. Chester, 557 Pa. 358, 733 A.2d 1242 (1999)).

Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.Super. 2001).

            Unless the PCRA could not provide for a potential
            remedy, the PCRA statute subsumes the writ of
            habeas corpus.      Fahy, supra at 223-224;


                                    -8-
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               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).

                                                                             to

advise him of the immigration consequences of his plea, and for failure to

move to have the case transferred to juvenile court, are certainly cognizable



by bringing the identical claims in a habeas petition.          Simply because

                                                                           -bar

applies, and he is left without a remedy under the PCRA, does not mean that

his   claims     are   reviewable   pursuant   to   habeas     corpus.6    See

Commonwealth v. Dickerson, 900 A.2d 407, 412 (Pa.Super. 2006),

appeal denied                                                habeas corpus has

been subsumed into the PCRA for claims that are cognizable under the Act


6
  Ironically, if appellant had been adjudicated delinquent in juvenile court, he
would likely be unable to bring a claim of trial counsel ineffectiveness for
failing to warn him of the immigration consequences of his plea. The PCRA
does not apply to juveniles, and habeas corpus is limited to those juveniles
who are presently detained. In re B.S., 831 A.2d 151, 154 (Pa.Super.
2003).


                                       -9-
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and is not available merely because an otherwise cognizable claim is

jurisdictionally time-         Fahy, supra.




petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/12/2014




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