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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


SHALAMAR CARMON,                         :    IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                       Appellant         :
                                         :
                 v.                      :
                                         :
BRIAN COLEMAN, SCI – FAYETTE             :
SUPERINTENDENT, ET. AL.,                 :
                                         :
                       Appellee          :    No. 2195 EDA 2015

                Appeal from the Order Entered June 17, 2015
               In the Court of Common Pleas of Lehigh County
                     Civil Division at No(s): 2015-C-1782

BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY DUBOW, J.:                         FILED MARCH 03, 2016

     Shalamar Carmon appeals pro se from the Order dismissing his Writ of

Habeas Corpus.    We conclude Appellant’s habeas petition is actually an

untimely fourth petition under the Post Conviction Relief Act (PCRA), 42

Pa.C.S. §§ 9541-46.   Therefore, we affirm.

     On September 24, 2008, Appellant was sentenced to a term of life

imprisonment after his conviction by a jury of first-degree murder in

connection with the 2004 death of Jason Fritchman. This Court affirmed the
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judgment of sentence on January 4, 2008, and our Supreme Court denied

allowance of appeal on June 26, 2008.1

      Appellant filed his first PCRA petition on June 12, 2009, alleging

ineffective assistance of counsel.   The PCRA court denied relief, this Court

affirmed, and our Supreme Court denied allocatur.

      On February 14, 2012, Appellant filed a pro se Writ of Habeas Corpus

in the Lehigh County Civil Division, which the trial court denied. This Court

affirmed, concluding that Appellant was seeking relief that could only be

granted under the PCRA.

      On December 22, 2014, Appellant filed a “Praecipe for Writ of Habeas

Corpus,” simultaneously with a petition to Proceed In Forma Pauperis. The

trial court ultimately denied relief with prejudice, concluding the litigation

was frivolous litigation and had been improperly filed in the civil division of

the Lehigh County Court of Common Pleas.            Appellant appealed, but

discontinued the appeal.

      On June 5, 2015, Appellant filed the instant pro se Petition for Writ of

Habeas Corpus in the civil division of the Lehigh County Court of Common

Pleas, alleging that he is confined unlawfully pursuant to an invalid

sentencing order. Appellant averred that the sentencing order is illegal

because it cites 18 Pa.C.S. § 2501 (defining criminal homicide), but not

1
 See Commonwealth v. Carmon, 947 A.2d 822 (Pa. Super. filed Jan. 4,
2008) (unpublished memorandum), appeal denied, 951 A.2d 1160 (Pa.
2008).



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Pa.C.S. § 1102(a) (providing a minimum sentence of life imprisonment for a

conviction of first-degree murder). Appellant claimed that, pursuant to the

holding in Joseph v. Glunt, 96 A.3d 365 (Pa. Super. 2014), his submission

should be treated as a petition for Writ of Habeas Corpus and not a petition

under the PCRA.

      On June 17, 2015, the trial court dismissed the petition and this

appeal followed.

      Appellant raises one issue for our review:

         Whether the [t]rial [c]ourt abused its discretion by
         dismissing Appellant’s petition for a writ of habeas corpus
         ad subjiciendum where Appellant’s claim, in a test of the
         legality of his commitment and detention, has asserted
         and demonstrated that he is being detained unlawfully in
         violation of due process of law under the Pa. Const. Art. 1
         § 9 and the 14th Amendment of the U.S. Const. due to
         Appellee’s inability to produce a lawful court order related
         to a judgment of sentence that lawfully justify [sic] the
         civil commitment of Appellant into Appellee’s custody to be
         confined as required by 30 Pa.Code. § 91.3, where the
         undisputed record of the judgment of sentence constitutes
         authority insufficient for appellant to have ever been
         committed to the [Department of Corrections] and
         confined by Appellee, which requires his immediate
         release?

Appellant’s Brief at 3.

      It is well established that the PCRA subsumes the writ of habeas

corpus in circumstances where the PCRA provides a remedy for the claim.

See Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa. 1988); 42

Pa.C.S. § 9542 (“The action established in this subchapter shall be the sole

means of obtaining collateral relief and encompass all other common law


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and statutory remedies for the same purposes that exist when this

subchapter takes effect, including habeas corpus and coram nobis.”); 42

Pa.C.S. § 6503(b) (“[T]he writ of habeas corpus shall not be available if a

remedy may be had by post-conviction hearing proceedings authorized by

law.”).

      All motions and petitions filed after a judgment of sentence becomes

final must generally be treated as PCRA petitions.     Commonwealth v.

Hackett, 956 A.2d 978, 986 (Pa. 2008) (noting that PCRA eligibility

requirements enumerated in 42 Pa.C.S. § 9543(a) must be broadly

construed to avoid creating a “bifurcated system of post-conviction review

where some post-conviction claims are cognizable under the PCRA while

others are not”). Because Appellant challenges the legality of his sentence

and seeks release from custody, both addressed in the PCRA, Appellant’s

petition is, in actuality, a PCRA petition.

      Appellant relies on Joseph v. Glunt, 96 A.3d 365 (Pa.Super. 2014),

where this Court concluded that the PCRA did not subsume an illegal-

sentence claim based on the inability of the Department of Corrections

(“DOC”) to produce a written sentencing order.      Id. at 368-69.   Here,

Appellant has not asserted that the DOC was unable to produce his

sentencing order. In fact, Appellant annexed his sentencing order to his

petition.   Joseph is, accordingly, inapplicable.




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     Before we may address the merits of Appellant’s argument, we must

first consider the timeliness of his petition because it implicates the

jurisdiction of this Court and the trial court. See Commonwealth v. Miller,

102 A.3d 988, 992 (Pa.Super. 2014).          Under the PCRA, any 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).      A

judgment of sentence becomes final at the conclusion of direct review,

including discretionary review in the Supreme Court of Pennsylvania and the

Supreme Court of the United States, or at the expiration of time for seeking

review. 42 Pa.C.S. § 9545(b)(3). A court may not address the merits of the

issues raised if the PCRA petition was not timely filed. Commonwealth v.

Taylor, 65 A.3d 462, 468 (Pa.Super. 2013).

     Appellant’s judgment of sentence became final on September 24,

2008, when the time expired to file a petition for writ of certiorari with the

Supreme Court of the United States. See Sup. Ct. R. 13(1). Appellant filed

the current habeas petition in 2015, making it patently untimely. Although

the PCRA contains three narrow exceptions to the one-year time-bar,

Appellant did not plead any of those exceptions.

     Accordingly, both the trial court and this Court lack jurisdiction to

entertain Appellant’s habeas petition under the PCRA.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/3/2016




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