J-S86012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    BRAD E. JONES                              :
                                               :
                      Appellant                :   No. 87 WDA 2016

                Appeal from the PCRA Order December 10, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0014284-2001



BEFORE: GANTMAN, P.J., MOULTON, J., STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                       FILED NOVEMBER 21, 2016


        Appellant Brad E. Jones appeals pro se from the Order entered in the

Court of Common Pleas of Allegheny County on December 10, 2015, denying

his “Writ of Habeas Corpus Ad-Subjiciendum” (hereinafter “Writ of Habeas

Corpus”)1 as an untimely, serial petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

        Appellant shot and killed his friend after a night of drinking and

consuming drugs in 2001. Following a jury trial, Appellant was convicted of
____________________________________________


1
  A writ of habeas corpus ad subjiciendum is defined as “[a] writ directed to
someone detaining another person and commanding that the detainee be
brought to court.” Joseph v. Glunt, 96 A.3d 365, 367, appeal denied, 627
Pa. 774, 101 A.3d 787 (2014) citing BLACK’S LAW DICTIONARY 778 (9th ed.
2009).




* Former Justice specially assigned to the Superior Court.
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third-degree murder, corruption of minors, abuse of a corpse, carrying a

firearm without a license, and criminal conspiracy on March 14, 2002.

Appellant was sentenced to an aggregate term of twenty-one and one-half

years to forty-three years in prison, and this Court dismissed his direct

appeal on April 9, 2003, for his failure to file an appellate brief. Numerous

petitions filed pursuant to the PCRA followed.

        On October 16, 2015, Appellant filed the instant pro se Writ of Habeas

Corpus wherein he argued, inter alia, that “the continued validity of [his]

sentence under 42 Pa.C.S.A. § 9712 violates the due process and equal

protection clauses of the United States Constitution and/or Article 1 Section

9 of the Pennsylvania Constitution.” See Writ of Habeas Corpus, at 2. The

trial court treated this filing as Appellant’s fifth PCRA petition and issued a

Pa.R.Crim.P. 907 notice of its intent to dismiss the petition on October 27,

2015.    Therein, the trial court indicated that this pleading had been filed

untimely, no exception to the PCRA time-bar applied, and Alleyne v. United

States, ___ U.S. ____, 133 S.Ct. 2151, 186 L.Ed. 314 (2013) was not

retroactively applicable to Appellant’s case.

        Appellant filed a pro se Response to Notice of Intent to Dismiss on

November 17, 2015, wherein he conceded that his “claim is not cognizable

under PCRA because he is not challenging the legality or discretionary aspect

of the actual sentence as imposed” and “his sentence was lawful as originally

imposed.” See Response to Notice of Intent to Dismiss, filed 11/17/15, at


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1-2.    The trial court issued an order dismissing Appellant’s petition on

December 10, 2015, and Appellant filed a timely notice of appeal on January

8, 2016, as well as a timely concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b) wherein he raised three errors.

Herein, Appellant presents a single question for our review:

       I.    Did the Lower Court err in construing the Habeas petition
       as a PCRA?

Brief for Appellant at iii.

       In a disjointed discussion, Appellant essentially maintains the trial

court abused its discretion in determining his contentions are cognizable

under the PCRA, because he is being unlawfully detained and denied “open

access to the court” in light of the fact that our Supreme Court has declared

42 Pa.C.S.A. § 9712 to be unconstitutional. Brief for Appellant at 3-8. This

claim is meritless.

       Initially, we find that the trial court properly treated Appellant's Writ of

Habeas Corpus         as a PCRA petition. Under        established Pennsylvania

precedent, “the PCRA is intended to be the sole means of achieving post-

conviction relief.” Commonwealth v. Taylor 65 A.3d 462, 465 (Pa.Super.

2013)(citations omitted); Commonwealth v. Descardes, ___ Pa. ____,

____, 136 A.3d 493, 498 (2016) (“This Court has construed [42 Pa.C.S. §

9542] as manifesting the legislature's intent that the PCRA be the sole

means by which an appellant may collaterally challenge his conviction.”).

Thus, “[u]nless the PCRA could not provide for a potential remedy, the PCRA


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statute subsumes the writ of habeas corpus.” Taylor, supra at 465-466

(citations omitted).   Furthermore, “[i]ssues that are cognizable under the

PCRA must be raised in a timely PCRA petition and cannot be raised in a

habeas corpus petition. Taylor, at 466; Descardes, supra ___ Pa. at ____,

136 A.3d at 501 (stating that where a claim is cognizable under the PCRA,

the PCRA is the only method by which one may obtain collateral review”).

Finally, “a defendant cannot escape the PCRA time-bar by titling his petition

or motion as a writ of habeas corpus.” Taylor, supra at 466.

      Herein, Appellant contends that due to his “unique circumstances” he

is serving an illegal sentence because the third-degree murder statute under

which he previously had been convicted was declared unconstitutional “after

the PCRA time limitations attached.”      Brief for Appellant at 3-6.   While

Appellant does not specifically cite to Alleyne, this Court has held that

claims asserted thereunder implicate the legality of one’s sentence.

Accordingly, Appellant’s argument is cognizable under the PCRA, not under

habeas corpus law. See Commonwealth v. Newman, 99 A.3d 86, 90

(Pa.Super. 2014) (en banc); Commonwealth v. Ruiz, 131 A.3d 54, 60

(Pa.Super. 2015) (Alleyne claim challenges legality of sentence which

petitioner could raise in timely filed PCRA petition where his direct appeal

had been pending when Alleyne was decided).        Therefore, the trial court

properly treated Appellant’s Writ of Habeas Corpus as a PCRA petition, and

we must next determine whether the petition is properly before this Court.


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     “The question of whether a petition is timely raises a question of law.

Where the petitioner raises questions of law, our standard of review is de

novo and our scope of review is plenary.” Id. (citations omitted). All PCRA

petitions must be filed within one year of the date upon which the judgment

of sentence became final, unless one of the statutory exceptions set forth in

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies, and the petitioner bears the

burden to plead and prove an applicable statutory exception. If the petition

is found to be untimely, and the petitioner has not pled and proven an

exception, the petition must be dismissed without a hearing because

Pennsylvania courts are without jurisdiction to consider the merits of the

petition. Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.Super. 2011).

See also Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super. 2013).

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

     (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 of sentence becomes final, unless the
           petition alleges and the petitioner proves that:

           (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


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      this section and has been held by that court to               apply
      retroactively.

42 Pa.C.S.A. § 9545(b)(1). In addition, any petition attempting to invoke

one of these exceptions “shall be filed within 60 days of the date the claim

could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

      This Court previously found that Appellant's judgment of sentence

became final on June 22, 2003, following the expiration of Appellant's

opportunity to petition for review with our Supreme Court. Thus, Appellant

had until June 22, 2004 to file a timely PCRA petition.      The instant PCRA

petition, filed over twelve years later, is facially untimely, and Appellant has

not invoked any of the statutory exceptions to the time-bar. In fact,

Appellant nowhere specifies which timeliness exception he satisfies. Indeed,

as the trial court noted, Appellant makes no allegations that governmental

officials prevented him from filing his petition in a timely manner, nor does

his claim rest upon facts that were unknown to him at the time of conviction

or upon facts that could not have been ascertained through due diligence.

In addition, Appellant admits his sentence was lawful as originally imposed.

As such, Appellant has failed to plead and prove one of the aforementioned

exceptions to the PCRA time-bar.

      Accordingly, the PCRA court properly concluded that Appellant’s Writ of

Habeas Corpus was an untimely, serial PCRA petition. Jackson, supra.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2016




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