J-S58027-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

TERRENCE BRADLY,

                            Appellant                 No. 285 WDA 2014


            Appeal from the PCRA Order Entered February 13, 2014
              In the Court of Common Pleas of Allegheny County
                          Criminal Division at No(s):
                           CP-02-CR-0006702-1989
                           CP-02-CR-0006884-1989


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                   FILED SEPTEMBER 05, 2014

        Appellant, Terrence Bradly, appeals pro se from the order dismissing

his petition for a writ of habeas corpus ad subjiciendum.       After careful

review, we affirm.

        Appellant was charged at the above-listed criminal informations in

1989.     Appellant proceeded to a jury trial on February 13, 1990.       On

February 15, 1990, the jury found Appellant guilty of first degree murder

and robbery.1        On February 5, 1991, Appellant was sentenced to a

mandatory term of life imprisonment without the possibility of parole. After

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Appellant filed a direct appeal, this Court affirmed his judgment of sentence

on March 3, 1992.        Commonwealth v. Bradly, 610 A.2d 62 (Pa. Super.

1992) (unpublished memorandum).

        Appellant filed his first Post Conviction Relief Act2 (PCRA) petition on

August 23, 2012.         Counsel was appointed; however, appointed counsel

ultimately filed a no-merit letter and a motion to withdraw pursuant to

Commonwealth            v.   Turner,       544   A.2d   927   (Pa.     1988),   and

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). By




pursuant to Pa.R.Crim.P. 907.          Appellant filed objections to that order on

May 29, 2013.       The court dismissed his PCRA petition on June 17, 2013.

Although Appellant appealed the dismissal of his PCRA petition, this Court

ultimately dismissed his appeal after he failed to file a brief. See Superior

Court Order, 11/12/13, at 1.

        The instant matter arose when Appellant filed a petition for a writ of

habeas corpus ad subjiciendum (Habeas Petition) with the Court of Common

Pleas of Allegheny County3 on November 26, 2013.               Therein, Appellant

claimed that his sentence was invalid because it was imposed pursuant to a
____________________________________________


2
    42 Pa.C.S. § 9541 et seq.
3
                                                                     t PCRA petition




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subsequently repealed statute.     The PCRA court dismissed the Habeas

Petition on January 24, 2014, and Appellant filed a timely appeal from that

order. The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal. The PCRA court issued a Rule

1925(a) opinion on May 16, 2014.

      Appellant now presents the following question for our review:


      [Petition for a] Writ of Habeas Corpus Ad Subjiciendum [in]
      violat[ion of] his substantive due process rights[,] where
      Appellant has been unlawfully committed to serve life
      imprisonment on a mandated repealed statute?



      The PCRA

Conviction Relief Act is the sole means by which a criminal defendant may



at 2 (citing Commonwealth v. Mercado, 826 A.2d 897 (Pa. Super. 2003)).

The PCRA court did not offer any additional explanation for its ruling. In his

brief, Appellant asserts that his claim is properly raised in a petition for a

writ of habeas corpus ad subjiciendum                                       g

Commonwealth v. Bangs, 393 A.2d 720 (Pa. Super. 1978)).                  Both

Appellant and the PCRA court have failed to address this claim in the

appropriate fashion.




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under the PCRA or it was not. If it was, then the PCRA court should have

treated the Habeas Petition as a PCRA petition.      See Commonwealth v.

Deaner

collateral petition raising issues with respect to remedies offered under the



cognizable under the PCRA, then the trial court should have addressed the

petition as properly raised under our habeas corpus jurisprudence. In both

Commonwealth v. West, 938 A.2d 1034 (Pa. 2007), and Commonwealth

v. Judge, 916 A.2d 511 (Pa. 2007), our Supreme Court held that claims

that fall outside the sphere of the PCRA can be advanced via a petition for a

writ of habeas corpus.

      Appellant essentially argued in his Habeas Petition that his sentence of

life imprisonment lacked a valid statutory basis at the time it was imposed, a

claim that he continues to make in this appeal.      Section 1102 of Title 18

currently provides, in pertinent part, as follows:

      Except as provided under section 1102.1 (relating to sentence of
      persons under the age of 18 for murder, murder of an unborn
      child and murder of a law enforcement officer), a person who
      has been convicted of a murder of the first degree or of murder
      of a law enforcement officer of the first degree shall be
      sentenced to death or to a term of life imprisonment in
      accordance with 42 Pa.C.S. § 9711 (relating to sentencing
      procedure for murder of the first degree).

18 Pa.C.S. § 1102(a)(1).

      Thus, when a defendant is convicted of first degree murder, section

1102 establishes two possible sentences: life imprisonment or death.      The


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statute also dictates that the procedure for deciding between those penalties

is governed 42 Pa.C.S. § 9711, as denoted by the italicized portion of

section 1102(a) above.    Prior to its amendment in 1995, section 1102(a)

referenced a prior version of 18 Pa.C.S. § 1311(d) rather than section 9711

of Title 42.   However, that prior version of section 1311(d) was declared

unconstitutional by our Supreme Court in 1977.          Commonwealth v.

Moody, 382 A.2d 442, 443 (Pa. 1977). As we noted in Commonwealth v.

Hardcastle, 546 A.2d 1101 (Pa. 1988), Moody was superseded by statute

when 42 Pa.C.S. § 9711 was amended to replace 18 Pa.C.S. § 1311(d) as

the applicable procedure for determining the appropriate sentence for first

degree murder in 1980.

      Appellant was sentenced in 1991 pursuant to the then in-effect version



sentencing procedure for first degree murder had been in effect for more

than a decade, section 1102(a)(1) still referenced the version of section

1311(d) which had been deemed unconstitutional in Moody in 1977. Thus,

Appellant claims, his substantive rights were violated when he was

sentenced under section 1102, when the sentencing procedure set forth in

that st



                                                                         See

In re M.W., 725 A.2d 729, 731 (Pa. 1999) (holding that, when a sentencing




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the issue raised implicates the legality of the sentence imposed). The PCRA

specifically includes challenges to an illegal sentence within its stated scope.



convicted of crimes they did not commit and persons serving illegal

                                                        vely (or additionally),



to sentence Appellant under the version of 18 Pa.C.S. § 1102(a)(1) in effect

in 1991. See 42 Pa.C.S. § 9543(a)(2)(viii) (stating that one is eligible for




jurisdiction of the court that imposed it, it is cognizable under the PCRA.



as a PCRA petition. Deaner, supra. Because the PCRA court did not treat

the Habeas Petition as a PCRA petition, it did not give Appellant notice of

intent to dismiss or afford him the opportunity to amend the petition. See

Pa.R.Crim.P. 907(1); Pa.R.Crim.P. 905(B).      In this regard, the PCRA court

clearly erred.



of his petition on these grounds. The failure to challenge the absence of a

Rule 907 notice results in waiver of that issue. Commonwealth v. Taylor,

65 A.3d 462, 468 (Pa. Super. 2013) (citing Commonwealth v. Boyd, 923

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raised, where the petition is untimely, it does not automatically warrant

             Id. (citing Commonwealth v. Pursell, 749 A.2d 911, 917 n.7

(Pa. 2000)).

        Having   established   that   the   PCRA   court   should   have   treated

                                                   tion, we must address the



jurisdiction and may not be altered or disregarded in order to address the

merits of a petition.    Commonwealth v. Bennett, 930 A.2d 1264, 1267

(Pa. 2007) (stating PCRA time limitations implicate our jurisdiction and may

not be altered or disregarded to address the merits of the petition);

Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002)

(holding the Superior Court lacks jurisdiction to reach merits of an appeal

from an untimely PCRA petition).

        Under the PCRA, any petition for post-conviction relief, including a

second or subsequent one, must be filed within one year of the date the

judgment of sentence becomes final, unless one of the exceptions set forth

in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. That section states, in relevant

part:

        (b) Time for filing petition.--

        (1) Any petition under this subchapter, including a second or
        subsequent petition, shall be filed within one year of the date the
        judgment becomes final, unless the petition alleges and the
        petitioner proves that:


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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).   Any petition attempting to invoke one of




apply to App



also cannot be applied, because even if the defect that existed in the 1991

version of 18 Pa.C.S. § 1102 called

sentence or the jurisdiction of the sentencing court, that defect was



There is no plausible argument why Appellant could not have discovered that

defect through the exercise of due diligence in the year after his sentence

became final. There is certainly no plausible reason why it would take more

than 20 years to discover that defect.




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      We conclude, therefore, that even if the PCRA court had not erred by




Accordingly, the PCRA court lacked jurisdiction to entertain his claim, as do

we.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/5/2014




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