J-S34009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 CARL ELISAS WHITEHEAD                   :
                                         :
                   Appellant             :   No. 1322 WDA 2017

                   Appeal from the Order August 31, 2017
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0009216-1999


BEFORE:    BOWES, J., STABILE, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.:                             FILED JULY 26, 2018

     Carl Elisas Whitehead appeals from the order denying his pro se “motion

for judgment on application for writ of error coram nobis.” We affirm.

     In 2000, Appellant was convicted of involuntary deviate sexual

intercourse, rape, aggravated assault, incest, indecent assault, endangering

the welfare of children, and corruption of minors, stemming from his acts of

vaginally and anally raping his seven-month-old daughter. On September 25,

2000, Appellant was sentenced to an aggregate term of thirty-five to seventy

years incarceration.    This court affirmed the judgment of sentence.     See

Commonwealth       v.    Whitehead,    803   A.2d   799   (Pa.Super.     2002)

(unpublished memorandum). Appellant did not file a petition for allowance of

appeal with our Supreme Court.      Consequently, his judgment of sentence

became final on May 25, 2002. See 42 Pa.C.S. § 9545(b)(3).


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      Over the next fifteen years, Appellant filed six pro se petitions pursuant

to the Post Conviction Relief Act (“PCRA”), all of which were denied. On May

17, 2017, while his appeal of the dismissal of his sixth PCRA petition was

pending before this Court, Appellant filed the pro se “motion for judgment on

application for writ of error coram nobis” which underlies the instant appeal.

In that motion, Appellant claimed that he was denied his constitutional right

to appeal his conviction for endangering the welfare of children because the

trial court did not impose a sentence for that conviction. Thereafter, on June

6, 2017, Appellant filed another pro se PCRA petition.

      On June 29, 2017, the PCRA court entered an order deferring any action

on the June 6, 2017 PCRA petition pending resolution of the appeal of

Appellant’s sixth PCRA petition. On August 31, 2017, the PCRA court entered

an order denying on the merits the “motion for judgment on application for

writ of error coram nobis.” Appellant filed a timely pro se notice of appeal.

The PCRA court did not order him to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

      Initially, we note that Pennsylvania law makes clear that any petition

for post-conviction collateral relief will generally be considered a PCRA

petition, even if captioned as a request for coram nobis relief, if the petition

raises an issue for which the relief sought is available under the PCRA. See

42 Pa.C.S. § 9542 (stating that the PCRA shall be sole means of obtaining

collateral relief and encompasses all other common law and statutory


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remedies     for    same     purpose,      including   coram   nobis);   see   also

Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa.Super. 2013) (holding that,

under established Pennsylvania precedent, the PCRA is intended to be the sole

means of achieving post-conviction relief).

       Here, as this claim raised in the “motion for judgment on application for

writ of error coram nobis” was cognizable under the PCRA, the PCRA court

should have treated Appellant’s motion as his seventh PCRA petition, and

deferred ruling on it pending resolution of the appeal of Appellant’s sixth PCRA

petition.    See Commonwealth v. Montgomery, 181 A.3d 359, 363

(Pa.Super. 2018) (en banc) (citing Commonwealth v. Lark, 746 A.2d 585,

588 (Pa. 2000) (holding that “a subsequent PCRA petition cannot be filed until

the resolution of review of the pending PCRA petition by the highest state

court in which review is sought, or upon the expiration of the time for seeking

such review”)). While we could remand the matter to the PCRA court, we

decline to do so, as the appeal of Appellant’s sixth PCRA petition was resolved

nine days after the PCRA court denied the “motion for judgment on application

for writ of error coram nobis.”1

       Having determined that Appellant’s “motion for judgment on application

for writ of error coram nobis” falls within the purview of the PCRA, we must

determine if we have jurisdiction to address his claims. See Taylor, supra


____________________________________________


1On September 9, 2017, this Court dismissed Appellant’s appeal of his sixth
pro se PCRA petition due to his failure to file a brief.

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at 465 (holding that issues that are cognizable under the PCRA must be raised

in a timely PCRA petition, and a petitioner may not escape the PCRA’s

mandates by titling his petition a “motion”).     Under the PCRA, any PCRA

petition “including a second or subsequent petition, shall be filed within

one year of the date the judgment becomes final[.]” 42 Pa.C.S. § 9545(b)(1)

(emphasis added). 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.”     Id. § 9545(b)(3).     The PCRA’s timeliness

requirements are jurisdictional in nature, and a court may not address the

merits of the issues raised if the PCRA petition was not timely filed.     See

Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010).

      Appellant’s judgment of sentence became final on May 25, 2002, when

the period of time to file an appeal with our Supreme Court expired. See 42

Pa.C.S. § 9545(b)(3); see also Commonwealth v. Rojas, 874 A.2d 638,

643 (Pa.Super. 2005). Appellant had until May 25, 2003, to file the instant

“motion for judgment on application for writ of error coram nobis,” but did not

do so until May 17, 2017. Thus, Appellant’s motion is facially untimely under

the PCRA.

      Pennsylvania courts may consider an untimely PCRA petition if the

appellant can explicitly plead and prove one of three exceptions set forth under

42 Pa.C.S. § 9545(b)(1). Any PCRA petition invoking one of these exceptions


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“shall be filed within 60 days of the date the claim could have been presented.”

Id. § 9545(b)(2); see also Albrecht, 994 A.2d at 1094.

      Here, in his “motion for judgment on application for writ of error coram

nobis,” Appellant failed to plead or prove the applicability of any of the

exceptions    to   the   PCRA   timeliness   requirements.   See   42   Pa.C.S.

§ 9545(b)(1); see also Albrecht, supra at 1094. Thus, even if the appeal

of Appellant’s sixth PCRA petition had been fully resolved, the PCRA court

should have dismissed Appellant’s “motion for judgment on application for writ

of error coram nobis” based on his failure to overcome the PCRA time bar,

rather than denying it on the merits. However, as we may affirm the PCRA

court ruling on any basis supported by the record, we affirm its August 31,

2017 order.    See Commonwealth v. Ahlborn, 683 A.2d 632, 641 n.14

(Pa.Super. 1996) (holding that this Court may affirm the PCRA court’s decision

upon any correct basis).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2018




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