J-S09014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CALVIN J. FLOYD,

                            Appellant                 No. 1770 EDA 2016


                    Appeal from the PCRA Order May 9, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0813171-1980


BEFORE: SHOGAN, STABILE, and PLATT,* JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED MARCH 29, 2017

       Appellant, Calvin Floyd, appeals pro se from the order denying his

most recent petition filed pursuant to the Post Conviction Relief Act

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

       We summarize the procedural history of this case as follows.       On

February 24, 1981, a jury convicted Appellant of first-degree murder and

related crimes. The jury sentenced Appellant to death, and the trial court

imposed the sentence on October 6, 1982.          On November 24, 1984, our

Supreme Court affirmed Appellant’s conviction. Commonwealth v. Floyd,

484 A.2d 365 (Pa. 1984).             However, our Supreme Court agreed with

Appellant’s argument that the prosecutor improperly argued in closing
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*
    Retired Senior Judge assigned to the Superior Court.
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argument during the sentencing hearing “that the jury should pronounce a

sentence of death because of the possibility that Appellant might one day be

released from prison if he received a life sentence.”               Id. at 370.

Accordingly, our Supreme Court reduced Appellant’s death sentence to a

term of life imprisonment. Id.

       Appellant has since filed a series of petitions seeking collateral relief.1

Specifically, on January 4, 1988, Appellant filed a petition for collateral relief

under the Post Conviction Hearing Act (“PCHA”), the predecessor of the

PCRA,2 which was ultimately denied on April 3, 1991.          On December 16,

1991, a panel of this Court affirmed the denial of post-conviction relief.

Commonwealth v. Floyd, 606 A.2d 1228, 1051 PHL 1991 (Pa. Super. filed

December 16, 1991) (unpublished memorandum).

       On August 29, 1996, Appellant filed a PCRA petition, and the PCRA

court denied relief on October 9, 1996. Appellant filed an additional PCRA

petition on December 31, 1996, and the PCRA court denied relief on June

11, 1997. On April 4, 2001, Appellant filed another PCRA petition, which the

PCRA court dismissed on March 8, 2003.            Appellant filed his next PCRA

petition on June 30, 2003.          The PCRA court again denied relief, and this
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1
   We observe that relief was denied by the court of common pleas as to
each of Appellant’s post-conviction petitions, and that Appellant appealed to
this Court in only two of those instances.
2
   The PCHA was repealed and replaced by the PCRA for petitions filed on or
after April 13, 1988.



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Court    affirmed     the   PCRA      court’s    decision    on   August   10,   2005.

Commonwealth v. Floyd, 885 A.2d 574, 804 EDA 2004 (Pa. Super. filed

August 10, 2005).       On August 12, 2008, Appellant filed yet another PCRA

petition, which the PCRA court ultimately denied on August 30, 2010.

        On December 28, 2012, Appellant filed pro se the instant petition,

titled as a petition for writ of habeas corpus.             On February 4, 2014, and

June 5, 2014, Appellant filed amended petitions for writ of habeas corpus.

In an order and opinion dated May 9, 2016, the court of common pleas

denied relief after concluding that certain portions of Appellant’s petitions

should be considered under the PCRA, while another portion should be

considered to be a proper petition for writ of habeas corpus.3             This timely

pro se appeal followed.


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3
    We note that in addressing Appellant’s instant filing, the PCRA court
properly bifurcated the matter and considered a portion of the filing to be a
PCRA petition and a portion to be a habeas corpus petition. PCRA Court
Opinion, 5/9/16, at 2-5. Specifically, the PCRA court reviewed whether
Appellant’s claim that his continued detention is unlawful because the
Department of Corrections does not possess a sentencing order and
determined that it falls outside of the PCRA pursuant to this Court’s
precedent in Joseph v. Glunt, 96 A.3d 365 (Pa. Super. 2014), but
nevertheless found the claim to lack merit. PCRA Court Opinion, 5/9/16, at
4-5. The PCRA court properly observed that “there is no statutory obligation
for the Department of Corrections to maintain or produce documents such
as, the sentencing order, upon request of an inmate.” Id. at 4 (citing
Joseph, 96 A.3d at 371). Interestingly, the PCRA court noted that Appellant
attached to his filing a written copy of his judgment of sentence, which
imposed a term of life imprisonment. Id. at 4 n.3. We have reviewed the
certified record and agree that a written judgment of sentence, which
(Footnote Continued Next Page)


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      Appellant attempts to present the following issues for our review,

which we reproduce verbatim:

      1. Whether Appellant’s Habeas Corpus Ad Subjiciendum alleging
      Constitutional violations was properly denied by Judge Leon W.
      Tucker of the Philadelphia Court of Common Pleas without
      issuing the Writ or Order as a matter of due course, for Appellant
      did not file a PCRA?

      2. Whether Appellant’s detention is lawful in view of the fact that
      Pennsylvania has not Murder Statute-therefore, there is no
      Sentencing Order?

      3. Whether the Pennsylvania Supreme Court’s 1984 vacation of
      Appellant's death sentence and imposition of a New Sentence of
      Life in prison was properly conducted under 42 Pa. C. S. subsec.
      9711 (h) (2) and 42 Pa. C. S. subsec. 9711 (h) (4), still, in
      absence of a Murder Statute, no remand, and nor resentencing
      hearing to preserve a sentencing transcript?

      4. Whether Philadelphia Police Homicide detectives Phillip
      Checcia and his partner, detective Aikens along with Assistant
      prosecutors, Gerald Dugan and John DiDanato withhold
      exculpatory material evidence, threaten, terrorize, and coerce
      another witness to alter his testimony, then, under Gerald
      Dugan’s lead, who initiated preliminary proceedings involving
      Appellant, fashioned a so-called Prima Fascia case against
      Appellant, then have himself removed from the case and
      reentered as an ineligible witness to bolster the terrorized
      witness’s testimony, conspire to perpetrate fraud upon the
      Judicial Machinery of the Philadelphia Court of Common Pleas to
      fashion the face of the record as it reads violated his
      Constitutional rights to due process?

      5. Whether Appellant never being notified in 1991 that the
      Pennsylvania Superior Court dismissed his appeal to the denial of
      his first PCHA petition, which precipitated the following PCRA
      petitions, holds merit as a denial of due process?
                       _______________________
(Footnote Continued)

imposes a term of life imprisonment upon Appellant, exists and was
appended to Appellant’s instant filing at Exhibit A.



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Appellant’s Brief at 6. However, the argument portion of Appellant’s pro se

brief to this Court consists of the following two paragraphs:

             Appellant states and avers that in the absence of a murder
      statute his detention is unlawful. Every stage of due process
      was violated beginning with the exclusion of the eyewitness who
      could have changed the outcome of the trial. This is a Brady
      violation. Initially, Appellant was sentenced to death. The
      Pennsylvania Supreme Court vacated that sentence and
      suggested a New Sentence of life in prison, however, under the
      sentencing statutes, 9711 (h) (2) and 9711 (h) (4), Appellant
      should have been remanded for re-sentencing.

            That was thirty-two years ago. Technically, therefore,
      Appellant languishes in prison without a sentence.

Appellant’s Brief at 19.

      When reviewing the propriety of an order denying PCRA relief, we

consider the record “in the light most favorable to the prevailing party at the

PCRA level.”   Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.

2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.

2014) (en banc)). This Court is limited to determining whether the evidence

of record supports the conclusions of the PCRA court and whether the ruling

is free of legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa.

Super. 2012). We grant great deference to the PCRA court’s findings that

are supported in the record and will not disturb them unless they have no

support in the certified record.   Commonwealth v. Rigg, 84 A.3d 1080,

1084 (Pa. Super. 2014).

      Initially, we must ascertain whether this matter is properly before us.

We begin by determining whether the PCRA court correctly considered the

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majority of Appellant’s petition to be a PCRA petition.          If so, we then

determine whether the petition satisfied the timeliness requirements of the

PCRA.4

       The scope of the PCRA is explicitly defined as follows:

       This subchapter provides for an action by which persons
       convicted of crimes they did not commit and persons serving
       illegal sentences may obtain collateral relief.       The action
       established in this subchapter shall be the sole means of
       obtaining collateral relief and encompasses all other
       common law and statutory remedies for the same purpose
       that exist when this subchapter takes effect, including
       habeas corpus and coram nobis. This subchapter is not
       intended to limit the availability of remedies in the trial court or
       on direct appeal from the judgment of sentence, to provide a
       means for raising issues waived in prior proceedings or to
       provide relief from collateral consequences of a criminal
       conviction.

42 Pa.C.S. § 9542 (emphasis added).

       The plain language of the statute demonstrates that the General

Assembly intended that claims that could be brought under the PCRA must

be brought under that Act. Commonwealth v. Hall, 771 A.2d 1232, 1235

(Pa. 2001).     Where a defendant’s claims “are cognizable under the PCRA,

the common law and statutory remedies now subsumed by the PCRA are not

separately available to the defendant.” Id. at 1235 (citations omitted). By
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4
   We observe that Appellant has not presented to this Court an issue or
argument relating to the claim which the PCRA court considered to fall
outside of the PCRA, i.e., whether Appellant is properly detained because the
Department of Corrections allegedly does not possess a sentencing order.
Therefore, we will not address this concern.



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its own language, and by judicial decisions interpreting such language, the

PCRA     provides   the   sole   means   for   obtaining   state   collateral   relief.

Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999) (citations

omitted).   Thus, it is well settled that any collateral petition raising issues

with respect to remedies offered under the PCRA will be considered to be a

PCRA petition. Commonwealth v. Deaner, 779 A.2d 578, 580 (Pa. Super.

2001).

       The question then is whether the particular claims at issue, i.e.

whether Appellant’s various procedural due-process rights were violated and

whether the trial court had statutory authority to impose the sentence of life

imprisonment, are available to him under the PCRA. The relevant portion of

the PCRA provides as follows:

       (2) That the conviction or sentence resulted from one or more
       of the following:

             (i)    A violation of the Constitution of this
             Commonwealth or the Constitution or laws of the
             United States which, in the circumstances of the
             particular case, so undermined the truth-determining
             process that no reliable adjudication of guilt or
             innocence could have taken place.

                                     * * *

             (vii) The imposition of a sentence greater than the
             lawful maximum.

42 Pa.C.S. § 9543(a)(2)(i), (vii). Thus, the statute indicates that claims of a

constitutional nature and those that challenge the lawfulness of a sentence

are cognizable under the PCRA. Id.

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     Essentially, Appellant is attacking the validity of his underlying murder

conviction and the lawfulness of his sentence of life imprisonment. Because

such claims are cognizable under the PCRA, Appellant is precluded from

seeking relief on these claims pursuant to a petition for writ of habeas

corpus.    Thus, the PCRA court had no authority to entertain these claims

except under the strictures of the PCRA.

     We     next    address   whether   Appellant   satisfied   the    timeliness

requirements of the PCRA. A PCRA petition must be filed within one year of

the date that the judgment of sentence becomes final.                 42 Pa.C.S.

§ 9545(b)(1).      This time requirement is mandatory and jurisdictional in

nature, and the court may not ignore it in order to reach the merits of the

petition. Commonwealth v. Cintora, 69 A.3d 759, 762 (Pa. Super. 2013).

     Effective January 16, 1996, the PCRA was amended to require a

petitioner to file any PCRA petition within one year of the date the judgment

of sentence 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 the United States and the

Supreme Court of Pennsylvania, or at the expiration of time for seeking the

review.”    42 Pa.C.S. § 9545(b)(3).       Where a petitioner’s judgment of

sentence became final on or before the effective date of the amendment, a

special grace proviso allowed first PCRA petitions to be filed by January 16,




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1997.     See Commonwealth v. Alcorn, 703 A.2d 1054, 1056-1057 (Pa.

Super. 1997) (explaining application of PCRA timeliness proviso).

        However, an untimely petition may be received when the petition

alleges, and the petitioner proves, that any of the three limited exceptions to

the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),

and (iii), is met.5 A petition invoking one of these exceptions must be filed

within sixty days of the date the claim could first have been presented. 42

Pa.C.S. § 9545(b)(2).         In order to be entitled to the exceptions to the

PCRA’s one-year filing deadline, “the petitioner must plead and prove

specific facts that demonstrate his claim was raised within the sixty-day time

frame” under section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164,

1167 (Pa. Super. 2001).
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5
    The exceptions to the timeliness requirement are:

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

42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).




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       Our review of the record reflects that Appellant’s conviction of first-

degree murder was affirmed by our Supreme Court on November 20, 1984.

Floyd, 484 A.2d 365. Appellant did not file a petition for writ of certiorari

with the United States Supreme Court. Accordingly, Appellant’s judgment of

sentence became final on January 21, 1985,6 sixty days after the

Pennsylvania Supreme Court affirmed Appellant’s conviction and the time for

filing a petition for review with the United States Supreme Court expired.

See 42 Pa.C.S. § 9545(b)(3) (providing that “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 time for seeking the review.”); U.S.Sup.Ct.R. 20.1.7

Thus, Appellant’s judgment of sentence became final prior to the effective

date of the PCRA amendments.            Appellant’s instant PCRA petition, filed on

December 28, 2012, does not qualify for the grace proviso as it was not filed

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6
   We note that, for purposes of this Court’s computation, Appellant would
have needed to file a petition for writ of certiorari on or before Monday,
January 21, 1985, because January 19, 1985 was a Saturday. See 1
Pa.C.S. § 1908 (stating that, for computations of time, whenever the last
day of any such period shall fall on Saturday or Sunday, or a legal holiday,
such day shall be omitted from the computation).
7
   We observe that the Rules of the Supreme Court of the United States
pertaining to the time limit for filing a petition for writ of certiorari have
changed various times in relation to both length of time and rule number.
Rule 20.1, which was applicable to this case, required the filing of a petition
for a writ of certiorari within sixty days after the Pennsylvania Supreme
Court’s decision and became effective August 1, 1984.



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before January 16, 1997.      Thus, the instant PCRA petition is patently

untimely.

      As previously stated, if a petitioner does not file a timely PCRA

petition, his petition may nevertheless be received under any of the three

limited exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.

§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file

his petition within sixty days of the date that the exception could be

asserted. 42 Pa.C.S. § 9545(b)(2). Our review of the record reflects that

Appellant has not alleged, nor has he proven, that any of the three

exceptions to the timeliness requirement of the PCRA is satisfied. 42 Pa.C.S.

§ 9545(b)(1).    Thus, the PCRA court did not err in denying Appellant’s

untimely PCRA petition.

      In conclusion, because Appellant’s PCRA petition was untimely and no

exceptions apply, the PCRA court correctly determined that it lacked

jurisdiction to address the claims presented and grant relief.           See

Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding

that PCRA court lacks jurisdiction to hear untimely petition). Likewise, we

lack the authority to address the merits of any substantive claims raised in

the PCRA petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267

(Pa. 2007) (“[J]urisdictional time limits go to a court’s right or competency

to adjudicate a controversy.”).

      Order affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/2017




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