J-S64002-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                             Appellee

                       v.

JUAN PEREZ

                             Appellant                   No. 456 EDA 2016


             Appeal from the PCRA Order entered January 14, 2016
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-1051451-1991


BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                         FILED NOVEMBER 16, 2016

        Appellant, Juan Perez, appeals from the January 14, 2016 order of the

Court of Common Pleas of Philadelphia County denying his petition for

habeas corpus relief. Upon review, we affirm.

        The facts and the procedural background of this matter can be

summarized as follows. Following a jury trial, Appellant was found guilty of

second degree murder, robbery, possessing an instrument of crime, and

criminal conspiracy.        The trial court sentenced Appellant to mandatory life

imprisonment for murder, and an additional concurrent term of six and one-

half to thirteen years for robbery. The court imposed no sentences on the

remaining convictions.        This Court affirmed the judgment of sentence on
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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April 17, 1997. See Commonwealth v. Perez, 698 A.2d 670 (Pa. Super.

1997) (unpublished memorandum). Our Supreme Court denied Appellant’s

petition for allocatur on October 15, 1997, and denied reconsideration on

December 5, 1997.         See Commonwealth v. Perez, 717 A.2d 1028 (Pa.

1997).

        On August 22, 2012, Appellant filed a pro se PCRA petition,

challenging his conviction in light of Miller v. Alabama, 132 S.Ct. 2455

(2012). On April 10, 2014, Appellant filed a petition for habeas corpus in

which he argued that both his confinement and sentence were illegal.         On

January 14, 2016, the trial court denied the PCRA petition as untimely and

the petition for habeas corpus as meritless.        Appellant now appeals the

denial of his petition for habeas corpus.1

        In his petition, Appellant raises two issues: (i) there is insufficient

authority for his continued detention because his sentencing order is missing

and (ii) the sentence is illegal because it is based on an unconstitutional

statute. We will address these issues ad seriatim.

        “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.” Rivera v.

Pa. Dep’t of Corr., 837 A.2d 525, 528 (Pa. Super. 2003).           As this Court

noted in Joseph v. Glunt, 96 A.3d 365 (Pa. Super. 2014):


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1
    Appellant did not challenge the denial of his PCRA petition.



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     [Joseph] [a/k/a Woodens] is not the first individual to assert this
     species of claim. In addition to the aforementioned holding in
     [Brown v. Pa. Dep’t of Corr., 81 A.3d 814 (Pa. 2013) (per
     curiam)], our Commonwealth Court has adjudicated at least one
     similar appeal on the merits, albeit in an unpublished
     memorandum. In Travis v. Giroux, No. 489 C.D. 2013, 2013
     WL 6710773 (Pa. Cmwlth. Dec. 18, 2013), an appellant
     challenged the DOC’s authority to hold him in custody because,
     as in the present situation, the DOC was unable to produce a
     written sentencing order. Relying upon two holdings from the
     United States District Court for the Eastern District of
     Pennsylvania, the Commonwealth Court held that subsection
     9764(a)(8) does not provide a cause of action for prisoners: The
     current version of [42 Pa.C.S.A. § 9764(a)(8)] requires that a
     copy of the sentencing order be provided to the [DOC] upon
     commitment of an inmate to its custody. However, it does not
     create any remedy or cause of action for a prisoner based
     upon the failure to provide a copy to the DOC. The statute
     regulates the exchange of prisoner information between the
     state and county prison system, and does not provide a basis for
     habeas relief.        Specifically, the Commonwealth Court
     emphasized that the appellant in Travis did not dispute that he
     had pleaded guilty and that he was sentenced upon that plea.
     Thus, even where there appeared to be no sentencing order in
     the possession of the DOC or the trial court, the Commonwealth
     Court held that subsection 9764(a)(8) furnished no basis for
     relief where the appellant’s sentence was confirmed by the
     certified record. . . . Although the decisions of the
     Commonwealth Court are not binding upon this Court, they may
     serve as persuasive authority. Commonwealth v. Ortega, 995
     A.2d 879, 885 (Pa. Super. 2010); see also Petow v.
     Warehime, 996 A.2d 1083, 1088 n.1 (Pa. Super. 2010) (“[W]e
     may turn to our colleagues on the Commonwealth Court for
     guidance when appropriate.”). We find the reasoning presented
     in Travis to be probative and instructive. The language and
     structure of section 9764, viewed in context, make clear that the
     statute pertains not to the DOC’s authority to detain a duly-
     sentenced prisoner, but, rather, sets forth the procedures and
     prerogatives associated with the transfer of an inmate from
     county to state detention. None of the provisions of section
     9764 indicate an affirmative obligation on the part of the DOC to
     maintain and produce the documents enumerated in subsection
     9764(a) upon the request of the incarcerated person. Moreover,
     section 9764 neither expressly vests, nor implies the vestiture,

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      in a prisoner of any remedy for deviation from the procedures
      prescribed within.

Joseph, 96 A.3d at 370-71 (emphasis in original) (footnotes and citations

omitted).

      As in Joseph, Appellant “has cited no apposite legal authorities

demonstrating that the undisputed record of his judgment of sentence

maintained by the sentencing court constitutes insufficient authority for his

continuing detention.”     Id. at 372.   Indeed, as noted by the trial court,

Appellant was found guilty of second degree murder on June 4, 1993; he

was sentenced to life on April 27, 1994; and this Court affirmed his

judgment of sentence on April 17, 1997. Appellant did not challenge these

trial court findings.   Additionally, Appellant’s own exhibit (i.e., copy of the

trial court’s quarter sessions file) not only confirms the dates and events

above described by the trial court, it also informs us that Appellant

petitioned the Supreme Court for allowance of appeal and that his petition

was denied.    In light of the foregoing, we conclude there was sufficient

evidence of his convictions. Id. Accordingly, the trial court did not abuse its

discretion in denying Appellant’s habeas corpus petition.

      Appellant, however, attempts to distinguish Joseph on the basis that

his sentence is illegal because it is based on an unconstitutional/repealed

statute (18 Pa.C.S.A. § 1311(d)) (established sentencing procedures and

standards regulating jury determinations of whether the death penalty

should be imposed as punishment for murder).         Whatever merit the claim

might have, it is not properly before us. Indeed, it should have been raised

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in a PCRA petition, but Appellant failed to do so. See, e.g., Commonwealth

v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (legality of sentence claims

cognizable under PCRA).         Additionally, Appellant failed to plead and prove

the instant claim is timely. See 42 Pa.C.S.A. 9545(b)(1). Because the claim

is patently untimely2 and Appellant failed to plead and prove any of the

exceptions to the timeliness requirements, we cannot review the merits of

his claim. See Commonwealth v. Hackett, 956 A.2d 978, 984 (Pa. 2008)

(petitioner “must demonstrate the substantive requirements for one of the

exceptions to the time-bar set forth in Section 9545(b)(1)(i)-(iii) in order for

the court to have jurisdiction over his petition.”); Commonwealth v.

Callahan, 101 A.3d 118, 123 (Pa. Super. 2014) (A court lacks jurisdiction

over the merits of an untimely PCRA petition when petitioner has failed to

plead and prove the applicability of an exception to the timeliness

requirement).

       Order affirmed.


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2
  Appellant’s judgment of sentence became final after the Supreme Court
denied allowance of appeal on October 15, 1997, and the time for filing a
petition for writ of certiorari to the United States Supreme Court expired.
See 42 Pa.C.S.A. § 9545(b)(3); U.S. Supreme Court Rule 13 (effective
January 1, 1990) (petition for writ of certiorari is deemed timely when filed
within 90 days after discretionary review is denied by the Pennsylvania
Supreme Court). Thus, in order to satisfy the timeliness requirement,
Appellant was required to file his PCRA petition within one year from January
13, 1998. Because Appellant filed the instant petition on April 10, 2014, the
petition is patently untimely.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2016




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