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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

LARRY EDWARD WEST, JR.,                 :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                        Appellant       :
                                        :
                   v.                   :          No. 134 MDA 2014
                                        :
DAVID VARANO1                           :


               Appeal from the Order Entered January 6, 2014,
               in the Court of Common Pleas of Luzerne County
                      Civil Division at No. 2013-CV-10741



COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                   v.                   :
                                        :
LARRY EDWARD WEST, JR.,                 :          No. 409 MDA 2014
                                        :
                        Appellant


            Appeal from the Order Entered December 6, 2013,
             in the Court of Common Pleas of Luzerne County
            Criminal Division at Nos. CP-40-CR-0002702-2005,
            CP-40-CR-0002703-2005, CP-40-CR-0002704-2005


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED FEBRUARY 24, 2015




* Former Justice specially assigned to the Superior Court.
1
  David Varano is the Superintendent at SCI Coal Township where appellant
is currently incarcerated.
J. S71002/14


      Appellant appeals the order denying and dismissing his second

collateral   petition,   which   was   brought   as   a   petition   for   writ    of

habeas corpus, but which the court found was subsumed by the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, and thereafter

denied and dismissed as untimely. Finding no error, we affirm.

      On June 15, 2005, a jury found appellant guilty of numerous sex and

related offenses, including involuntary deviate sexual intercourse.               The

charges arose from the molestation of appellant’s girlfriend’s two minor

daughters when they lived at appellant’s home in Freeland from June 2002

to May 2004.

      On October 3, 2006, appellant was sentenced to an aggregate term of

9 to 18 years’ imprisonment.       On April 28, 2008, this court affirmed the

judgment of sentence. Commonwealth v. West, 953 A.2d 842 (Pa.Super.

2008) (unpublished memorandum). No further appeal was taken.

      On March 24, 2009, appellant filed a counseled PCRA petition.                A

hearing was held and on December 30, 2010, the petition was denied and

dismissed. On January 10, 2012, this court affirmed the order of the PCRA

court; and on August 28, 2012, our supreme court denied appeal.

Commonwealth v. West, 43 A.3d 517 (Pa.Super. 2012) (unpublished

memorandum).2



2
  The denial of appeal by our supreme court does not appear to have been
officially reported.


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J. S71002/14


      On May 10, 2012, appellant filed the instant petition for writ of

habeas corpus in Northumberland County, where appellant is incarcerated.

On June 29, 2012, the Northumberland County court entered an order

transferring the petition to Luzerne County, where appellant was tried and

convicted. This order was appealed at docket number 823 MDA 2014 and

has been listed consecutively, at journal number S71003/14, to the two

appeals listed here at journal number S71002/14.

      On June 26, 2013, the Commonwealth filed a motion to dismiss

appellant’s petition.   On November 13, 2013, the court issued notice,

pursuant to Pa.R.Crim.P., Rule 907, 42 Pa.C.S.A., of its intention to dismiss

appellant’s petition without hearing. On December 6, 2013, the court denied

and dismissed appellant’s petition on the basis that it was subsumed by the

PCRA, that it was untimely, and that it failed to raise an exception to the

time restrictions of the PCRA.   This order was appealed at docket number

409 MDA 2014. On January 6, 2014, the court entered an order granting

the Commonwealth’s motion to dismiss appellant’s petition. This order was

appealed at docket number 134 MDA 2014 and has been consolidated with

docket number 409 MDA 2014 at journal number S71002/14.

      Preliminarily, we note that the court below properly decided that

appellant’s petition for writ of habeas corpus was subsumed by the PCRA.

Where the relief requested in a petition for writ of habeas corpus is

cognizable under the PCRA, a petition for writ of habeas corpus is



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subsumed under that statute.         42 Pa.C.S.A. § 9542; Commonwealth v.

Turner, 80 A.3d 754, 770 (Pa. 2013). The gravamen of appellant’s petition

for writ of habeas corpus is that the Luzerne County court that presided

over his convictions was without jurisdiction to do so because the trial judge

was subsequently convicted of criminal offenses himself. A proceeding in a

tribunal without jurisdiction is explicitly set out in the PCRA as a ground for

relief.      See 42 Pa.C.S.A. § 9543(a)(2)(viii).      Consequently, the relief

requested in appellant’s petition for writ of habeas corpus is available

under the PCRA, and the petition is subsumed thereunder.

          We reject appellant’s response to the ruling below that his petition is

subsumed by the PCRA. Appellant argues that his petition is challenging the

conditions of his confinement rather than the legality of his confinement

because he is objecting to that part of the sentencing order that sets the

conditions of his confinement as, “to be served in a State Correctional

Institution.”     He contends that the conditions of his confinement are not

cognizable under the PCRA.

          Simply stated, that is not the complaint contained in appellant’s

petition.     Appellant’s petition questions the jurisdiction of the court that

convicted him, which directly attacks the legality of his confinement and not

the conditions.      To this appellant then responds that his petition must be

heard because the legality of a sentence cannot be waived.             We again

disagree:



                                        -4-
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            Appellant offers that even if untimely, a petitioner’s
            claims will always be considered on the merits when
            the claims challenge the legality of the sentence.
            Appellant is mistaken. 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.

Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999).                     Therefore,

appellant’s petition is subject to the time requirements of the PCRA.

      Our standard of review for an order denying post-conviction 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.

Franklin, 990 A.2d 795, 797 (Pa.Super. 2010). The PCRA court’s findings

will not be disturbed unless there is no support for the findings in the

certified record. Id.

      A PCRA petition must be filed within one year of the date that the

judgment of sentence becomes final. 42 Pa.C.S.A. § 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.

Taylor, 933 A.2d 1035, 1038 (Pa.Super. 2007), appeal denied, 951 A.2d

1163 (Pa. 2008).

      Appellant’s judgment of sentence became final on May 28, 2008, when

the time for filing a petition for allowance of appeal with our supreme court

expired.    See    42 Pa.C.S.A.    § 9545(b)(3);    Pa.R.A.P.,   Rule    1113(a),

42 Pa.C.S.A. The instant petition, filed May 10, 2012, is manifestly untimely



                                      -5-
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and cannot be reviewed unless appellant invokes a valid exception to the

time bar of the PCRA.     See 42 Pa.C.S.A. § 9545(b)(1)(i-iii).   Appellant’s

petition failed to raise any exception to the time requirements of the PCRA.

Therefore, neither this court nor the PCRA court has jurisdiction to review

the merits of the petition, and we must affirm the order below.

     Orders affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/24/2015




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