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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
                    v.                    :
                                          :
DAVID JOSEPH BAATZ,                       :          No. 2328 EDA 2017
                                          :
                         Appellant        :


                  Appeal from the PCRA Order, June 26, 2017,
                in the Court of Common Pleas of Lehigh County
               Criminal Division at No. CP-39-CR-0000893-1986


BEFORE: BENDER, P.J.E., PANELLA, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED APRIL 16, 2018

        David Joseph Baatz appeals pro se from the June 26, 2017 order

entered in the Court of Common Pleas of Lehigh County pursuant to the

Post-Conviction Relief Act1 (“PCRA”) that denied his “petition for writ of

habeas corpus ad subjiciendum” for lack of jurisdiction. We affirm.

        The PCRA court set forth the following:

                    On December 9, 1986, the appellant entered a
             guilty   plea  to   Kidnapping,    Rape,   Robbery,
             Involuntary Deviate Sexual Intercourse (hereinafter
             IDSI), Unauthorized Use of a Motor Vehicle, and
             Accidents Involving Damage to Unattended Vehicle
             or Property.[2] The appellant admitted to beating,
             robbing, and raping the victim after kidnapping her.
             Her abduction was facilitated with her own car. On

1   42 Pa.C.S.A. §§ 9541-9546.

2 18 Pa.C.S.A. §§ 2901(a)(2), 3121(1), 3701(a)(1)(i), 3123, 3928, and
3743, respectively.
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          January 29, 1987, the Honorable James N.
          Diefenderfer sentenced the appellant to not less than
          twenty-five (25) nor more than fifty (50) years in a
          state correctional institution.

                On April 19, 1987, the appellant filed a
          post-sentence motion seeking to withdraw his guilty
          plea and have his sentence vacated. On June 9,
          1989, a hearing was held on that motion, and it was
          subsequently denied. An appeal to the Superior
          Court was filed, which was treated as a first petition
          under the Post Conviction Relief Act (hereinafter
          PCRA). In an opinion dated October 24, 1990, the
          Superior Court affirmed the trial court’s denial of the
          motion.[Footnote 1] The appellant filed a Petition for
          Allowance of Appeal to the Supreme Court of
          Pennsylvania, which was denied by the Court on
          July 18, 1991.[Footnote 2]

                [Footnote 1] Commonwealth v. Baatz,
                3315 PHL 1989 (Pa.Super. October 29,
                1990).

                [Footnote 2] Commonwealth v. Baatz,
                1038 MD 1991 (Pa. July 18, 1991).

                The appellant filed a second petition under the
          PCRA on November 22, 1992, raising almost all of
          the same issues as the first PCRA petition. A hearing
          was held on January 9, 1995, and President Judge
          Diefenderfer issued an opinion denying the
          appellant’s second petition on March 29, 1995. A
          third PCRA petition was filed on June 27, 1997, and
          was assigned to the Honorable Carol K. McGinley.
          Judge McGinley denied the petition as untimely on
          August 18, 1997. The Superior Court affirmed the
          denial of the petition, issuing an order and opinion
          on May 12, 1998.[Footnote 3] The appellant again
          filed a Petition for Allowance of Appeal to the
          Supreme Court, but it was denied on December 15,
          1998.[Footnote 4]




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               [Footnote 3] Commonwealth v. Baatz,
               4594 PHL 1997 (Pa.Super. May 12,
               1998).

               [Footnote 4] Commonwealth v. Baatz,
               467 MD 1998 (Pa. December 15, 1998).

                 On August 21, 1998, during the pendency of
          his petition with the Supreme Court, the appellant
          filed a Petition for Leave to Appeal Nunc Pro Tunc.
          A hearing on the petition was held before the
          Honorable William E. Ford, during which the Court
          determined that the appellant was not afforded the
          assistance of counsel to file an appeal of his first
          PCRA petition within the statutory guidelines. On
          October 30, 2000, the appellant was granted leave
          to file a Notice of Appeal Nunc Pro Tunc challenging
          the denial his first PCRA petition, and counsel
          Albert Nelthropp was appointed to represent the
          appellant. The Notice of Appeal was thereafter filed
          on November 24, 2000. On October 1, 2001, the
          Superior Court dismissed the appeal.[Footnote 5]

               [Footnote 5] Commonwealth v. Baatz,
               101 EDA 2001 (Pa.Super. October 1,
               2001).

                 The appellant’s most recent petition was filed
          on May 4, 2017, and called a “Petition for Writ of
          Habeas Corpus Ad Subjiciendum.” It is alleged
          that his sentence is null and void for vagueness.
          Although styled as a petition for writ of habeas, it
          was treated as a petition under the PCRA. As a
          result, this Court issued a notice pursuant to
          Pa.R.Crim.P. Rule 907(1) on June 2, 2017, giving the
          appellant twenty (20) days to respond.           The
          petitioner filed a response on June 16, 2017, but
          failed to support any meritorious issues. This Court
          dismissed the appellant’s fourth PCRA petition
          without a hearing on June 26, 2017.

               On July 18, 2017, the appellant filed the
          present Notice of Appeal. The notice indicates that
          the appellant is appealing the Order entered on


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             June 26, 2017, which denies his fourth petition under
             the PCRA. This Court ordered the appellant to file a
             Concise Statement of Matters Complained of On
             Appeal (hereinafter Concise Statement).             The
             appellant timely filed his Concise Statement on
             July 28, 2017, alleging that this Court erred in
             treating his petition as one cognizable under the
             PCRA. He further alleges that if his claim does fall
             under the PCRA, this Court erred in determining that
             it was without jurisdiction to adjudicate the claim.

Trial court opinion, 8/28/17 at 1-3 (footnotes 6 and 7 omitted; emphasis

supplied).

      Appellant raises the following issues for our review:

             I.    Whether the lower court erred, as a matter of
                   law, in treating appellant’s petition for writ of
                   habeas corpus as a petition arising under the
                   [PCRA]?

             II.   Whether the lower court erred, as a matter of
                   law[,] in determining it was without jurisdiction
                   to adjudicate appellant’s claims on the merits?

Appellant’s brief at 4 (capitalization omitted; emphasis supplied).

      With respect to appellant’s first issue, the trial court properly treated

appellant’s petition for writ of habeas corpus as a serial PCRA petition

because the PCRA is the sole means by which a defendant may obtain

collateral relief and subsumes the remedy of habeas corpus with respect to

remedies offered under the PCRA. 42 Pa.C.S.A. § 9542 (providing that the

PCRA “shall be the sole means of obtaining collateral relief and encompasses

all other common law and statutory remedies for the same purpose . . . ,

including habeas corpus”); see also Commonwealth v. Descardes, 136



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A.3d 493, 497-498 (Pa. 2016) (same; citing 42 Pa.C.S.A. § 9542).             As a

result, appellant’s first claim necessarily fails.

         In his second issue, appellant claims that “[p]rior assertions by

appellate courts of this Commonwealth that the PCRA’s time-bar is

jurisdictional in nature are dicta, contrary to legislative intent, and contradict

the basic rules of statutory construction.”          (Appellant’s brief at 17;

underscore in original.) Appellant is mistaken.

         All PCRA petitions, including second and subsequent petitions, must be

filed within one year of when a defendant’s judgment of sentence becomes

final.    42 Pa.C.S.A. § 9545(b)(1).        “A judgment becomes final at the

conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).

The Pennsylvania Supreme Court has held that the PCRA’s time restriction is

constitutionally sound. Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa.

2004). In addition, our supreme court has instructed that the timeliness of

a PCRA petition is jurisdictional. If a PCRA petition is untimely, a court lacks

jurisdiction over the petition. Commonwealth v. Callahan, 101 A.3d 118,

120-121 (Pa.Super. 2014) (courts do not have jurisdiction over an untimely

PCRA); see also Commonwealth v. Wharton, 886 A.2d 1120 (Pa. 2005).

         Here, the trial court sentenced appellant on January 29, 1987.

Appellant failed to file a direct appeal to this court, and consequently,



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appellant’s judgment of sentence became final on March 2, 1987, thirty days

after imposition of sentence and the time for filing a direct appeal expired. 3

See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903; Commonwealth v.

Cintora, 69 A.3d 759, 763 (Pa.Super. 2013).              Therefore, appellant’s

petition, filed July 18, 2017, more than 30 years after his judgment of

sentence became final, is facially untimely.      Therefore, the PCRA court

lacked jurisdiction to review appellant’s petition, unless appellant alleged

and proved one of the statutory exceptions to the time-bar, as set forth in

42 Pa.C.S.A. § 9545(b)(1).

       Those three narrow exceptions to the one-year time-bar are:        when

the government has interfered with the petitioner’s ability to present the

claim, when the appellant has recently discovered facts upon which his PCRA

claim is predicated, or when either the Pennsylvania Supreme Court or the

United States Supreme Court has recognized a new constitutional right and

made     that   right   retroactive.    42   Pa.C.S.A.    §   9545(b)(1)(i-iii);

Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa.Super. 2012).

The petitioner bears the burden of pleading and proving the applicability of

any exception. 42 Pa.C.S.A. § 9545(b)(1). If a petitioner fails to invoke a




3We note that because February 28, 1987 fell on a Saturday, appellant had
until the next business day, Monday, March 2, 1987, to file his PCRA
Petition. See 1 Pa.C.S.A. § 1908 (“Whenever the last day of any such
period [of time under a statute] shall fall on Saturday or Sunday . . . such
day shall be omitted from the computation.”).


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valid exception to the PCRA time-bar, this court may not review the petition.

See 42 Pa.C.S.A. § 9545(b)(1)(i-iii).

      Here, appellant advances no claim that a jurisdictional time-bar

exception applies. Rather, he claims that his sentence is illegal and void for

vagueness because the trial court failed to impose a specific sentence on

each count. (Appellant’s brief at 25.) It is well settled, however, that “even

claims that a sentence was illegal, an issue deemed incapable of being

waived,    are   not    beyond    the     jurisdictional   time   restrictions.”

Commonwealth v. Grafton, 928 A.2d 1112, 1114 (Pa.Super. 2007), citing

Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999); Commonwealth v.

Beck, 848 A.2d 987 (Pa.Super. 2004).         Consequently, appellant’s illegal

sentencing claim does not operate as an independent exception to the

PCRA’s jurisdictional time-bar.

      Therefore, the PCRA court lacked jurisdiction to review appellant’s

petition, and we may not review the petition on appeal.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 4/16/18




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