J-S11027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

VICTORIO HINTON

                            Appellant                 No. 1066 WDA 2016


                    Appeal from the PCRA Order June 2, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0011856-1995


BEFORE: OLSON, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                              FILED APRIL 17, 2017

        Appellant, Victorio Hinton, appeals from the order entered June 2,

2016, denying as untimely his petition for collateral relief filed under the

Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, following a

guilty plea resulting in his conviction for third degree murder.1 We affirm.

        In January 1996, after being extradited from Washington state,

Appellant entered a negotiated guilty plea to third degree murder.         See

Notes of Testimony (N.T.), 1/25/96, at 2. The court immediately sentenced

Appellant to the negotiated term of incarceration, eight and one-half to

twenty-one years. Id. at 16.



____________________________________________


1
    18 Pa.C.S. § 2502(c).


*
    Former Justice specially assigned to the Superior Court.
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       In May 2004, Appellant filed a petition for writ of habeas corpus,

arguing that the Commonwealth had breached its contractual agreement by

incarcerating him past his minimum sentence.         See Petition for Writ of

Habeas Corpus, 5/3/04, at 1-2. The PCRA court treated this petition as a

request for PCRA relief.        Appointed counsel submitted a Turner/Finley2

“no merit” letter, which the court granted.          The PCRA court denied

Appellant’s petition; Appellant did not appeal to this Court.

       On October 29, 2015, Appellant filed a petition for writ of habeas

corpus, which the court treated as a petition requesting PCRA relief, as it

challenged the validity of his conviction.3 After sending Appellant notice of

intent to dismiss pursuant to Pa.R.Crim.P. 907, the PCRA court denied his

petition as untimely filed.

       Appellant timely appealed. The court did not issue an order to file a

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Nevertheless, Appellant filed his Pa.R.A.P. 1925(b) statement.     The PCRA

court did not issue an opinion but instead adopted the reasons given in its

Pa.R.Crim.P. 907 notice.



____________________________________________


2
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).
3
  In the petition, Appellant argued that he was entitled to habeas relief due
to the Commonwealth’s failure to commence trial within one hundred twenty
days of his extradition from Washington state, an alleged violation of 42
Pa.C.S. § 9101. See Petition for Writ of Habeas Corpus, 10/29/15, at 2-5.



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      On appeal, Appellant raises a single issue for our review, namely,

whether the lower court committed reversible error in denying habeas

corpus relief.    See Appellant’s Brief at 4.      Appellant argues that the court

erred in treating his petition for habeas relief as a PCRA petition. Id. at 5-6.

Appellant argues that his due process rights were violated because he was

not brought to trial within one hundred twenty days of his extradition to

Pennsylvania. Id. at 8-9.

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error. See Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007).

      We begin by addressing the timeliness of Appellant’s petition, as the

PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded      in   order   to   address   the   merits   of   his   claims.   See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for relief, including second and subsequent petitions,

must be filed within one year of the date on which the judgment of sentence

becomes final. Id. There are three exceptions:

      (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


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       (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 these

exceptions “shall be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

       Appellant’s petition is patently untimely.4       Accordingly, in order to

reach the merits of his issues, he must plead and prove one of the

exceptions to the time bar. See Bennett, 930 A.2d at 1267. Appellant’s

brief does not plead any of the time bar exceptions. Nevertheless, Appellant

argues that the court erred in treating his petition as a PCRA rather than a

request for habeas relief, as his procedural due process rights were violated.

See Appellant’s Brief at 7. It is well-settled that

       the PCRA is intended to be the sole means of achieving post-
       conviction relief. Unless the PCRA could not provide for a
       potential remedy, the PCRA statute subsumes the writ of habeas
       corpus. Issues that are cognizable under the PCRA must be
       raised in a timely PCRA petition and cannot be raised in a habeas
       corpus petition. Phrased differently, a defendant cannot escape
____________________________________________


4
  Appellant’s judgment of sentence became final in February 1996, at the
expiration of his thirty days to file a direct appeal to this Court. See 42
Pa.C.S. § 9545(b)(3) (a judgment of sentence becomes final at the
conclusion of direct review or the expiration of the time for seeking the
review). Accordingly, he had until February 1997 to timely file a petition
seeking collateral relief.



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       the PCRA time-bar by titling his petition or motion as a writ of
       habeas corpus.

Commonwealth v. Taylor, 65 A.3d 462, 465–66 (Pa. Super. 2013)

(internal citations omitted).

       Appellant’s petition appears to argue that his conviction and sentence

are invalid because they were imposed in violation of the timeliness

requirements of the Interstate Detainer Act (IAD). See Appellant’s Brief at

7-8.

       The IAD is an agreement between forty-eight states, the District of

Columbia, and the United States, establishing procedures for the transfer of

“prisoners incarcerated in one jurisdiction to the temporary custody of

another    jurisdiction   which   has   lodged   a   detainer   against   them.”

Commonwealth v. Destephano, 87 A.3d 361, 364 (Pa. Super. 2014)

(internal citations and quotations omitted). Article IV(c) of the IAD further

provides that in respect to any proceeding made possible by the Article, trial

shall be commenced within one hundred twenty days of the arrival of the

prisoner in the receiving state. See 42 Pa.C.S. § 9101, Article IV(c).

       This claim is cognizable under the PCRA as Appellant claims that his

due process rights were violated.       Taylor, 65 A.3d at 465–66; see also

Commonwealth v. Peterkin, 722 A.2d 638, 640-41 (Pa. 1998) (finding

that a defendant’s allegations of constitutional violations were cognizable

under the PCRA and, accordingly, the statutory writ of habeas corpus was

not available to him).

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     Accordingly, the PCRA court properly treated Appellant’s petition as a

request seeking collateral relief, and dismissed it as untimely.       See

Bennett, 930 A.2d at 1267.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2017




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