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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOHN LEGNINE                                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellant

                      v.

TREVOR WINGARD
                                                       No. 1829 WDA 2015


                   Appeal from the Order November 4, 2015
        in the Court of Common Pleas of Allegheny County Civil Division
                            at No(s): GD 15-011132

BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED SEPTEMBER 12, 2016

        Pro se Appellant, John Legnine, appeals from the order dismissing his

petition for writ of habeas corpus.      Appellant contends the court erred by

construing his petition as a Post Conviction Relief Act1 (“PCRA”) petition and

by holding he was properly sentenced to thirty-two to sixty-four years’

imprisonment. We affirm.

        We adopt the facts set forth by a prior panel of this Court:

           During the summer of 1983 and March, 1984, a series of
           pharmacy robberies occurred in Allegheny County. In each
           robbery, two armed men wearing stocking masks and
           gloves took money and/or drugs. As a result, Appellant
           was charged with eight counts of robbery, one count of
           aggravated assault, and two counts of conspiracy. A jury
           trial began on November 11, 1987. Although eyewitnesses

*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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        to the crime were not able to identify either of the robbers,
        at trial Kenneth Walter Socovich (Socovich) testified that
        he committed one of the robberies with Appellant, and
        Joseph E. Farina (Farina) testified that he committed
        another five of the robberies with Appellant. In addition,
        Shirley Slaney (Slaney) testified that she drove Appellant
        and Farina from the scene of one of the robberies. All
        three of these witnesses testified under grants of
        immunity. Appellant neither testified or presented any
        witnesses on his behalf.           At the close of the
        Commonwealth’s case, Appellant’s demurrer to two
        robbery counts was granted. On November 20, 1987, the
        jury found Appellant guilty of all the remaining counts,
        except for the one count of aggravated assault.[2] On
        January 12, 1988, Appellant received an aggregate
        sentence of thirty-two to sixty-four years[‘] incarceration.

Commonwealth v. Legnine, 1504 Pittsburgh 1996, at 1-2 (Pa. Super. May

28, 1997) (unpublished memorandum).

     At the sentencing hearing, for each of the six robbery counts, the court

explicitly sentenced Appellant to a mandatory sentence of five to ten years’

imprisonment and a sentence of two to four years’ imprisonment for one

count of conspiracy. N.T. Sentencing Hr’g, 1/12/88, at 35-37. The following

exchange occurred:

        The court: Do you have any other questions as to your
        sentence? Do you understand your sentence?

        [Appellant]: Yes, sir.

        The court: You have got five to ten on the five counts of
        robbery and two to four on the conspiracy charge. All
        those sentences are to run consecutive to whatever

2
  Subsequently, the court granted Appellant’s post-trial motion in part and
acquitted Appellant of one count of conspiracy.




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           sentence you are presently serving.       Do you understand
           that?

           [Appellant]: Yes.

N.T. Sentencing Hr’g, 1/12/88, at 38 (emphasis added).             As noted above,

the court had previously sentenced Appellant for six—not five—counts of

robbery.

        That same day, the court signed seven orders3 that were attached to

the criminal information and reflected the above sentences for six counts of

robbery and one count of conspiracy. An example follows:

           And now 1-12-88 as to Cnt one Robbery Defendant
           sentenced to Mandatory term under Section 9712
           Sentencing Code

           And now 1-12 1988 in open court, defendant appearing
           with counsel, sentenced to pay a fine of 6-1/4¢ to the
           Commonwealth. Pay costs of prosecution and undergo an
           imprisonment of not less than 5 yrs or more than 10 yrs
           and [illegible faded phrase] to the Western Correctional
           Diagnostic and Classification Center of Pennsylvania. Date
           of last commitment ___ 19 ___

           By the Court

           [handwritten signature]

Order, 1/12/88 (italicized phrases signify handwriting).           A clerk of courts

also signed seven orders reflecting the above sentences but the court did not

sign those orders. The docket, however, does not indicate entry of any of




3
    Appellant refers to these orders as “clerk blotters,” infra.




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these January 12, 1988 orders.        The docket also states that sentencing

occurred on November 20, 1987, the day the jury reached its verdict.

      This Court affirmed on direct appeal, and our Supreme Court denied

Appellant’s petition for allocatur.      Commonwealth v. Legnine, 149

Pittsburgh 1988 (Pa. Super. Jan. 2, 1992), allocatur denied, 607 A.2d 251

(Pa. May 8, 1992).    In January of 1993, Appellant filed a PCRA petition,

which the PCRA court denied; this Court affirmed, and our Supreme Court

denied his petition for allowance of appeal.

      On June 15, 2015,4 Appellant filed a petition for a writ of habeas

corpus and a motion to proceed in forma pauperis. The petition alleged that

he attempted to obtain a written sentencing order from the trial court.

Appellant claimed that the Department of Corrections averred no sentencing

order existed.    Appellant, however, also contended the Department of

Correction later provided “seven pages of clerk blotters” that purportedly

increased his sentence.    Appellant attached these “clerk blotters,” among

other exhibits, to his petition.      Specifically, Appellant claimed he was

sentenced to a minimum sentence of twenty-seven years’ imprisonment and

the clerk blotters impermissibly increased his minimum sentence to thirty-

two years’ imprisonment.    He argued the Department of Corrections erred




4
 See generally Commonwealth v. Wilson, 911 A.2d 942, 944 n.2 (Pa.
Super. 2006) (discussing prisoner mailbox rule).




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by relying on those “seven pages of clerk blotters” because they are not

written sentencing orders.

        On September 28, 2015, the trial court issued a Pa.R.Crim.P. 907

notice stating that it construed Appellant’s petition as a PCRA petition and

that it would dismiss the petition as time-barred. Order, 9/28/15. Appellant

filed a response to the Rule 907 notice on October 17, 2015.5 His response

contended that his sentence was increased due to a clerical error and his

detention was unlawful because there was no written sentencing order.

Appellant’s Objections to Notice of Intent to Dismiss/ [sic] P.C.R.A. Pet.,

10/17/15, at 1.      On November 4, 2015, the court formally dismissed

Appellant’s petition for writ of habeas corpus and dismissed as moot

Appellant’s motion to proceed in forma pauperis.      The court also attached

and made part of the record the “clerk blotters”/endorsed sentencing orders

and the information.       Appellant timely appealed and filed a Pa.R.A.P.

1925(b) statement, although the court did not order one. The court did not

issue a Rule 1925(a) decision.

        Appellant raises the following issues, which we reproduce verbatim:

          1. Did the lower court exercise an abuse of discretion as it
          entered an order of court, “AND NOW, This 4th day of
          November, 2015, the Petition docketed July 1, 2015, is
          dismissed as frivolous under Pa. R. C. P. 240 (j) (1). The
          request to proceed in forma Pauperis is dismissed as
          moot.”?

5
    See note 4, supra.




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        2. Did the lower court exercise an abuse of discretion as it
        suspended the powers of the writ of habeas corpus that
        challenged the legality of Appellants commitment and
        detention without a lawful judgment of conviction order
        entered in the official criminal docket. ?

        3. Did the lower court exercise an abuse of discretion in its
        Memorandum opinion stating, “Judicial notice is taken of
        the written sentencing orders signed by the Sentencing
        Court Judge at CC 8706113. They are made part of the
        instant record and are attached hereto.”?

        4. Did the lower court commit reversible error not
        addressing a claim of Ambiguity in the trial courts oral
        pronouncement of the sentence, and the sentence actually
        imposed by the clerk’s disposition sheets?

        5. Did the lower court commit reversible error not issuing
        the writ of habeas corpus challenging the legality of
        Appellants commitment and detention by the Department
        of Corrections without a Written Sentence Order entered in
        the Criminal Docket by direction of the Trial Court Judge?

Appellant’s Brief at 4 (emphasis omitted).

     We summarize the arguments for all of Appellant’s issues together, as

they are interrelated. Appellant contends that no written sentencing order

exists and therefore he has been illegally detained. He maintains that the

docket reflects no entry of any sentencing orders. Appellant argues that the

court orally imposed an aggregate sentence of twenty-seven to fifty-four

years’ imprisonment and then imposed a greater sentence after the hearing.

He posits that because there the court did not docket any sentencing order,

he has not yet been sentenced.     Appellant, however, also argues that the

seven written sentencing orders contradict the court’s oral pronouncement of



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his sentence.   Appellant concludes that he has been illegally detained and

the Department of Corrections erroneously computed his sentence. We hold

Appellant is due no relief.

      As a prefatory matter, we address whether the PCRA court properly

construed Appellant’s petition for a writ of habeas corpus as a PCRA petition.

In Joseph v. Glunt, 96 A.3d 365 (Pa. Super.), appeal denied, 101 A.3d 787

(2014), the appellant claimed he was illegally imprisoned because the

Pennsylvania Department of Corrections did not possess the court’s

sentencing order.    Id. at 367.   The Joseph Court addressed whether it

should apply the PCRA to the appellant’s petition:

             Initially, we note that the Pennsylvania Supreme Court,
         albeit in a per curiam opinion, has held that a claim that a
         defendant’s sentence is illegal due to the inability of the
         DOC to “produce a written sentencing order related to [his]
         judgment of sentence” constitutes a claim legitimately
         sounding in habeas corpus. Brown v. Penna. Dept. of
         Corr., ––– Pa. ––––, 81 A.3d 814, 815 (2013) (per
         curiam) (citing Commonwealth ex rel. Bryant v.
         Hendrick, 444 Pa. 83, 280 A.2d 110, 112 (1971);
         Warren v. DOC, 151 Pa. Cmwlth. 46, 616 A.2d 140, 142
         (1992) (“An application for a writ of habeas corpus
         requests       the  applicant’s  release   from   prison.”)).
         Accordingly, we will treat [the appellant’s] submission as a
         petition for a writ of habeas corpus instead of a petition
         under the PCRA, which typically governs collateral claims
         implicating the legality of sentence. See 42 Pa.C.S. [§]
         9542 (“This subchapter provides for an action by which
         persons . . . serving illegal sentences may obtain collateral
         relief.”).




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Id. at 368-69.6

     Instantly, Appellant’s habeas petition—like the petition in Joseph—

contended the Department of Corrections could not produce a written

sentencing order.    See id.    Appellant further contends that the “clerk

blotters” are not valid written sentencing orders and regardless, the court’s

oral pronouncement of sentence renders ambiguous any written sentencing

order. Unlike Joseph, however, the core of Appellant’s argument is that the

trial court improperly sentenced him.     Cf. id.   Thus, Appellant’s claim

properly lies within the scope of the PCRA. See 42 Pa.C.S. § 9542.

     “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

by the evidence of record and free of legal error.”     Commonwealth v.

Wilson, 824 A.2d 331, 333 (Pa. Super. 2003) (en banc) (citation omitted).

Before weighing the substantive merits of Appellant’s arguments, however,

we consider whether this Court has jurisdiction over the present case. If the

PCRA petition is untimely, then there is no subject matter jurisdiction.

Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1267-68 (Pa. 2008).

     As our Supreme Court has explained:

        the PCRA timeliness requirements are jurisdictional in
        nature and, accordingly, a PCRA court is precluded from

6
  The Joseph Court ultimately held the appellant had no remedy if the
Department of Corrections could not produce the order. Joseph, 96 A.3d at
372.




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         considering untimely PCRA petitions.             See, e.g.,
         Commonwealth v. Murray, 753 A.2d 201, 203 ([Pa.]
         2000) (stating that “given the fact that the PCRA’s
         timeliness requirements are mandatory and jurisdictional
         in nature, no court may properly disregard or alter them in
         order to reach the merits of the claims raised in a PCRA
         petition that is filed in an untimely manner”);
         Commonwealth v. Fahy, 737 A.2d 214, 220 ([Pa.] 1999)
         (holding that where a petitioner fails to satisfy the PCRA
         time requirements, this Court has no jurisdiction to
         entertain the petition). [The Pennsylvania Supreme Court
         has] also held that even where the PCRA court does not
         address the applicability of the PCRA timing mandate, th[e
         Court would] consider the issue sua sponte, as it is a
         threshold question implicating our subject matter
         jurisdiction and ability to grant the requested relief.

Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 2003) (parallel

citations omitted). Even if the legality of the sentence itself is in question,

courts lack jurisdiction to hear an untimely PCRA petition. Fahy, 737 A.2d

at 223 (stating that “[a]lthough 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”).

      In order to satisfy the timeliness requirement, a PCRA petition “must

normally be filed within one year of the date the judgment becomes final . . .

unless one of the exceptions in § 9545(b)(1)(i)-(iii) applies and the petition

is filed within 60 days of the date the claim could have been presented.”

Commonwealth v. Copenhefer, 941 A.2d 646, 648 (Pa. 2007) (some

citations and footnote omitted). The PCRA enumerates three exceptions to

this time limitation:




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         (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)-(iii).   Finally, “a petitioner’s first PCRA petition,

that would otherwise be considered untimely because it was filed more than

one year after the judgment of sentence became final, would be deemed

timely if it was filed by January 16, 1997.”     Commonwealth v. Thomas,

718 A.2d 326, 329 (Pa. Super. 1998) (en banc).

      Instantly, Appellant’s judgment of sentence became final on August 6,

1992, as that was the deadline for filing a petition for a writ of certiorari with

the United State Supreme Court. See Sup. Ct. R. 13. Appellant filed the

instant, second PCRA petition on June 15, 2015, well after the one-year

deadline.   See generally Thomas, 718 A.2d at 329.            Appellant did not

plead, let alone prove, any of the three timeliness exceptions in his petition.

See 42 Pa.C.S. § 9545(b)(1)(i)-(iii); Whitney, 817 A.2d at 477-78.

Therefore, the PCRA court lacked jurisdiction to consider the legality of

Appellant’s sentence. See Whitney, 817 A.2d at 477-78; Fahy, 737 A.2d



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at 223.    Accordingly, the PCRA court did not err in dismissing his PCRA

petition as untimely. See Wilson, 824 A.2d at 833.

      Assuming, however, that Appellant’s claim falls within the scope of a

petition for a writ of habeas corpus, the standard of review is well-settled:

             The ancient writ of habeas corpus is inherited from
             the common law, referred to by Sir William
             Blackstone as the most celebrated writ in the English
             law. The writ lies to secure the immediate release of
             one who has been detained unlawfully, in violation of
             due process. Traditionally, the writ has functioned
             only to test the legality of the petitioner’s detention.

          Under Pennsylvania statute, habeas corpus is a civil
          remedy that lies solely for commitments under criminal
          process. Habeas corpus is an extraordinary remedy and
          may only be invoked when other remedies in the ordinary
          course have been exhausted or are not available. Our
          standard of review of a trial court’s order denying a
          petition for a writ of habeas corpus is limited to an abuse
          of discretion.

Id. at 369 (internal quotation marks, brackets, and citations omitted).

      Furthermore,

          [w]hen a petitioner is in custody by virtue of a judgment of
          sentence of a court of competent jurisdiction, the writ
          generally will not lie. The rationale for this limitation is the
          presumption of regularity which follows the judgment. The
          writ, as stated above, is an extraordinary remedy and,
          therefore, a judgment rendered in the ordinary course is
          beyond the reach of habeas corpus.            That conviction
          cannot be put aside lightly, and it becomes stronger the
          longer the judgment stands. Consequently, habeas corpus
          generally is not available to review a conviction which has
          been affirmed on appeal.

Id. at 372 (citations omitted).




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      By way of background, in 1988, “[i]n sentencing the controlling record

is the indorsement of the sentence upon the back of the indictment, signed

by the judge.” Commonwealth v. Thomas, 280 A.2d 651, 654 (Pa. Super.

1971) (citation omitted); accord Commonwealth v. Isabell, 467 A.2d

1287, 1290 (Pa. 1983) (construing written sentence endorsed on bill of

information); Commonwealth v. Williams, 636 A.2d 183, 184 n.2 (Pa.

Super. 1993) (en banc) (relying on written endorsement of sentence on back

of information that was dated the same day of the sentencing hearing);

Commonwealth v. Fleming, 480 A.2d 1214, 1223 (Pa. Super. 1984)

(stating, “Where there is a discrepancy between the sentence as written and

as orally pronounced, ‘[t]he pronounced sentence as recorded on the

indictments always controls.’” (citation omitted)).

      Instantly, Appellant’s habeas petition attached, as an exhibit, the

“clerk blotters”/endorsed sentencing orders. The trial court, in its decision

dismissing Appellant’s petition, attached and made part of the record

Appellant’s criminal information and endorsed sentencing orders at issue.

Further, the court specifically sentenced Appellant to five to ten years’

imprisonment for each of the six robbery counts and to two to four years’

imprisonment for the sole conspiracy count. N.T. Sentencing Hr’g, 1/12/88,

at 35-37. Subsequently, when summarizing Appellant’s sentences, the court

misstated that Appellant was sentenced on five—not six—counts of robbery.

Id. at 38.    To the extent this could be construed as a discrepancy, we



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examine the endorsed sentences.        See Fleming, 480 A.2d at 1223;

Thomas, 280 A.2d at 654. Although the endorsed sentencing orders were

not explicitly docketed on January 12, 1988, they accurately reflect the

court’s specific, oral pronouncement of sentence and were also dated and

signed on January 12, 1988.      See Orders, 1/12/88.    Thus, contrary to

Appellant’s protestations, sentencing orders exist in his case and the

Department of Corrections did not impermissibly increase his minimum

sentence.   Further, because Appellant’s conviction has been affirmed on

appeal, habeas relief is generally unavailable. See Joseph, 96 A.3d at 372.

Having discerned no abuse of discretion, id. at 369, we therefore affirm the

trial court’s order, albeit on different grounds.   See Commonwealth v.

Clouser, 998 A.2d 656, 661 n.3 (Pa. Super. 2010).

     Appellant’s pro se “Motion Pursuant to Pa.R.A.P. 1926(d) Objections to

Supplemented Record” denied.       Appellant’s pro se “Motion Pursuant to

Pa.R.A.P. 1926 Correction of Record” denied. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/12/2016




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