J-S26008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

DWAYNE JONES

                         Appellant                    No. 2534 EDA 2015


                 Appeal from the PCRA Order July 13, 2015
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0706831-2002
                          CP-51-CR-0710831-2002
                          CP-51-CR-0715641-2002
                          CP-51-CR-0715661-2002
                          CP-51-CR-0715671-2002
                          CP-51-CR-0715681-2002
                          CP-51-CR-0904311-2002


BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                              FILED APRIL 26, 2016

      Appellant, Dwayne Jones, appeals pro se from the order entered on

July 13, 2015, dismissing a petition for a writ of habeas corpus and petitions

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-

9546. Upon review, we affirm.

      The trial court briefly set forth the facts and procedural history of this

case as follows:

        On September 24, 2002, [Appellant] entered an open guilty
        plea to nine counts of robbery and nine counts of possession
        of an instrument of crime.        On November 19, 2002,
        [Appellant] was sentenced to an aggregate term of twenty
        (20) to forty (40) years [of imprisonment].               After
        sentencing, [Appellant] filed a petition to withdraw his guilty

*Retired Senior Judge assigned to the Superior Court.
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       plea, which was denied on November 29, 2002. He also
       filed a motion to modify sentence which was denied on
       January 24, 2003.

       [Appellant] did not file a direct appeal. On June 17, 2007,
       [Appellant] filed his first Post-Conviction Relief Act (“PCRA”)
       petition. Counsel was appointed to represent him and
       subsequent thereto counsel filed a no-merit letter and
       motion to withdraw as counsel on April 29, 2010. The
       petition was formally dismissed on June 25, 2010, and
       counsel was permitted to withdraw. [Appellant] appealed
       the dismissal to the Superior Court. On February 17, 2011,
       the Superior Court dismissed [Appellant’s] appeal for failure
       to file a brief.

       On November 5, 2012, [Appellant] filed a petition for writ of
       habeas corpus. On July 18, 2013, [Appellant’s] habeas
       petition was transferred from the Civil to the Criminal
       Division of the Court of Common Pleas of the First Judicial
       District.    On November 5, 2013, [Appellant] filed an
       amended petition for writ of habeas corpus. On June 13,
       2014, [Appellant] filed a PCRA petition. On January 27,
       2015, the Supreme Court of Pennsylvania directed [the
       trial] court to adjudicate [Appellant’s] pending petitions.

       Upon review, [the trial court] determined that some of the
       issues [Appellant] raised in his habeas petitions fell under
       the provisions of the PCRA because they raised claims
       cognizable under the PCRA and that they were untimely
       raised.    After carefully reviewing [Appellant’s] habeas
       petitions and PCRA petition, [Appellant] was sent [] notice
       of intent to dismiss [pursuant to Pa.R.Crim.P. 907] on June
       8, 2015. On June 18, 2015 [Appellant] filed a response to
       the notice to dismiss.

       [Appellant’s] petitions were dismissed on July 13, 2015. On
       July 24, 2015, [Appellant] filed a notice of appeal from the
       order dismissing his PCRA petition. Also, [Appellant] sought
       clarification as to what petitions were being dismissed. All
       petitions filed were extensively reviewed and were included
       in the dismissal. This include[d] the November 5, 2012, []
       July 18, 2013, the November 5, 2013, and the June 13,
       2014 petition[s].


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Trial   Court    Opinion,    9/14/2015,        at   1-3   (footnote   and   superfluous

capitalization omitted).

        On appeal, Appellant presents the following issues, pro se, for our

review:1

           A. [Whether t]he trial court abused its discretion in
              dismissing Appellant’s petition for writ of habeas corpus
              [] since he is confined absent a sentencing order [as]
              required by 42 Pa.C.S.A. § 9764(a)(8)[?]

           B. [Whether] Appellant’s sentence of imprisonment with
              service of a consecutive term of probation constitutes an
              illegal split sentence that the court was without
              jurisdiction to impose[?]

           C. Is [] Appellant[’s] sentence a nullity as the mandatory
              sentencing statutes in Pennsylvania have been ruled
              facially unconstitutional?

Appellant’s Brief at 7, 12, and 14 (complete capitalization omitted).

        In his first issue presented, Appellant claims that when he requested a

copy of the sentencing order on his underlying convictions, the Department

of Corrections (DOC) responded that it did not have it on record. Id. at 7.

Appellant claims that “[b]ecause the [s]entencing [o]rder herein does not

exist[,] the DOC lacks the authority to detain Appellant[.]”                Id. at 10.

“Appellant claims that as a result of the absence of a [s]entencing [o]rder in

the DOC’s possession[,] his confinement is illegal.” Id.
____________________________________________


1
   We note that Appellant’s statement of questions presented does not
correspond with the argument section of Appellant’s brief. For clarity, we list
the issues on appeal as they appear immediately preceding each claim in the
argument section of Appellant’s brief.



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      “Under Pennsylvania statute, habeas corpus is a civil remedy that lies

solely for commitments under criminal process.” Joseph v. Glunt, 96 A.3d

365, 369 (Pa. Super. 2014) (citation and bracket omitted).     “The writ lies to

secure the immediate release of one who has been detained unlawfully, in

violation of due process.” Id. (citation omitted). “Traditionally, the writ has

functioned only to test the legality of the petitioner's detention.”        Id.

(citation and bracket omitted). “Habeas corpus is an extraordinary remedy

and may only be invoked when other remedies in the ordinary course have

been exhausted or are not available.”      Id.   “[A] claim that a defendant's

sentence is illegal due to the inability of the DOC to produce a written

sentencing order related to his judgment of sentence constitutes a claim

legitimately sounding in habeas corpus.” Id. at 368.

      Our standard of review regarding a writ of habeas corpus is

well-settled:

        On appeal, a trial court's decision to grant or deny a petition
        for a writ of habeas corpus will not be reversed absent an
        abuse of discretion.      Instead, it involves bias, prejudice,
        partiality, ill-will, manifest unreasonableness, or a
        misapplication of the law. In contrast, a proper exercise of
        discretion conforms to the law and the facts of record.

Commonwealth v. Carroll, 936 A.2d 1148, 1152-1153 (Pa. Super. 2007).

      Upon commitment of an inmate to the custody of the DOC:

        the sheriff or transporting official shall provide to the
        institution's records officer or duty officer, in addition to a
        copy of the court commitment form DC–300B generated
        from the Common Pleas Criminal Court Case Management
        System of the unified judicial system, […] [a] copy of the


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         sentencing order and any detainers filed against the inmate
         which the county has notice.

42 Pa.C.S.A. § 9764(a)(8).

      We previously determined:

         The current version of 42 Pa.C.S. § 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.

                             *       *          *

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

Joseph, 96 A.3d at 370-371 (footnote and citations omitted; emphasis in

original).

      Here, we conclude that the trial court properly treated Appellant’s

claim under habeas review and agree that he was not entitled to relief.

Upon review of the certified record, the trial court entered a sentencing

order in Appellant’s case on November 19, 2002. Based upon the foregoing




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law, the mere fact that the DOC did not produce a copy of it, does not entitle

Appellant to relief. Thus, Appellant’s first issue is without merit.

       In his last two issues presented, Appellant claims that his sentence is

illegal for two reasons.       We will examine them together.       First, Appellant

claims the trial court was without authority or jurisdiction to sentence him to

“a split sentence.”2 Appellant’s Brief at 12.         Next, relying upon the United

States Supreme Court’s decision in Alleyne v. United States, 133 S. Ct.

2151 (2013), Appellant argues that the trial court illegally sentenced him to

a mandatory minimum sentence under 42 Pa.C.S.A. § 9712.1 for committing

a robbery with a firearm.         Id. at 14.     Both of these claims challenge the

legality of a sentence and, thus, fall under the PCRA.3               42 Pa.C.S.A.

§ 9353(a)(2)(vii).

       “As a general proposition, we review a denial of PCRA relief to

determine whether the findings of the PCRA court are supported by the

record and free of legal error.”        Commonwealth v. Eichinger, 108 A.3d

821, 830 (Pa. 2014) (bracket omitted). This Court previously determined:
____________________________________________


2
  When incarceration and probation are imposed on the same count of
conviction, this is known as a split sentence. Allen v. Com. Dept. of
Corrections, 103 A.3d 365, 368 n. (Pa. Cmwlth. 2014), citing McCray v.
Department of Corrections, 872 A.2d 1127 (Pa. 2005). “When
determining the lawful maximum allowable on a split sentence, the time
originally imposed cannot exceed the statutory maximum.” Commonwealth
v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010).
3
   We note that Appellant does not challenge the trial court’s decision to
treat these claims under the PCRA.



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        It is well-settled that the PCRA is intended to be the sole
        means of achieving post-conviction relief. Unless the PCRA
        [does] 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 the PCRA
        time-bar by titling his petition or motion as a writ of habeas
        corpus.

Commonwealth v. Taylor, 65 A.3d 462, 465-466 (Pa. Super. 2013).

     “[A] court may entertain a challenge to the legality of the sentence so

long as the court has jurisdiction to hear the claim. In the PCRA context,

jurisdiction is tied to the filing of a timely PCRA petition.” Commonwealth

v. Fowler, 930 A.2d 586, 592 (Pa. Super. 2007). Stated differently,

“although illegal sentencing issues cannot be waived, they still must be

presented in a timely PCRA petition.” Taylor, 65 A.3d at 465 (citation

omitted).

     This Court stated:

        The timeliness of a PCRA petition is a jurisdictional
        threshold and may not be disregarded in order to reach the
        merits of the claims raised in a PCRA petition that is
        untimely. 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. 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.

                           *         *           *

        However, an untimely petition may be received when the
        petition alleges, and the petitioner proves, that any of the

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          three limited exceptions to the time for filing the petition
          [….] are met.4 A petition invoking one of these exceptions
          must be filed within sixty days of the date the claim could
          first have been presented. 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[.]

Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (internal

citations and quotations omitted).

        Here, Appellant was sentenced on November 19, 2002 and moved for

post-sentence relief on January 8, 2003.         On January 24, 2003, the trial

court denied Appellant’s post-sentence motion to modify his sentence. No

direct appeal followed. Thus, Appellant’s sentence became final on February

24, 2003, 30 days after the denial of his post-sentence motion and the
____________________________________________


4
    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.A. § 9545(b)(1)(i-iii).



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subsequent expiration of the appeal period.          See Pa.R.Crim.P. 720(a) (“If

the defendant files a timely post-sentence motion, the notice of appeal shall

be filed [] within 30 days of the entry of the order deciding the motion.”);

see also Pa.R.A.P. 903 (“notice of appeal [] shall be filed within 30 days

after the entry of the order from which the appeal is taken.”).             The PCRA

petitions at issue, filed in November 2012 and June 2014, were patently

untimely and Appellant did not assert any exceptions to the PCRA’s

jurisdictional timing requirement.           Hence, the trial court did not have

jurisdiction to entertain Appellant’s remaining sentencing claims.

        Finally, we note that Appellant filed his PCRA petition raising his

Alleyne claim on June 13, 2014, almost a full year after Alleyne was

decided on June 17, 2013. Hence, he did not present the claim within 60

days of the date the claim could first have been presented.                 Moreover,

during the pendency of this appeal, our Court issued an opinion in the case

of Commonwealth v. Ruiz, 2015 WL 9632089 (Pa. Super. 2015), which

definitely determined that Alleyne is not retroactive and cannot serve as the

basis    for   invoking   the   timeliness    exception   found   at   42   Pa.C.S.A.

§ 9545(b)(1)(iii). In Ruiz, we concluded:

          Alleyne does not invalidate a mandatory minimum
          sentence when presented in an untimely PCRA petition. See
          Commonwealth v. Miller, 102 A.3d 988 (Pa. Super.
          2014). In concluding Alleyne does not satisfy the new
          retroactive constitutional right exception to the PCRA's one
          year time bar, 42 Pa.C.S. § 9545(b)(1)(iii), the Miller Court
          explained:



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          Even assuming that Alleyne did announce a new
          constitutional right, neither our Supreme Court, nor
          the United States Supreme Court has held that
          Alleyne is to be applied retroactively to cases in
          which the judgment of sentence had become
          final. This is fatal to Appellant's argument regarding
          the PCRA time-bar. This Court has recognized that a
          new rule of constitutional law is applied retroactively
          to cases on collateral review only if the United States
          Supreme Court or our Supreme Court specifically
          holds it to be retroactively applicable to those cases.

       Id. at 995 (citations omitted) (emphasis supplied).
       Furthermore, this Court also recently declined to give
       Alleyne retroactive effect to cases on timely collateral
       review when the defendant's judgment of sentence was
       finalized before Alleyne was decided. See Commonwealth
       v. Riggle, 119 A.3d 1058 (Pa. Super. 2015).

       In Riggle, after the defendant was sentenced on August 7,
       2009, this Court affirmed, and the Pennsylvania Supreme
       Court denied allowance of appeal on December 15, 2011.
       Id., 119 A.3d at 1061–1062. Riggle filed a timely PCRA
       petition on December 18, 2012, and, when the PCRA court
       issued notice of intent to dismiss the petition, Riggle
       responded and claimed that his sentence was illegal under
       Alleyne. See id., 119 A.3d at 1062.

       In considering whether the United States Supreme Court's
       June 17, 2013, decision in Alleyne should apply to cases on
       collateral review, the Riggle Court held that while Alleyne
       “undoubtedly is a new constitutional rule,” it does not meet
       the test for retroactive application during collateral review
       as set forth in the United States Supreme Court's decision,
       Teague v. Lane, 489 U.S. 288 (1989) (plurality). Riggle,
       supra, 119 A.3d at 1066. Specifically, the panel concluded
       the rule announced in Alleyne was neither substantive, nor
       a “watershed” procedural rule, that is, “necessary to
       prevent an impermissibly large risk of an inaccurate
       conviction and alters the understanding of the bedrock
       procedural elements essential to the fairness of a
       proceeding.” Id. Therefore, the Riggle Court found that
       because “the fundamental fairness of the trial or sentencing
       is not seriously undermined, [] Alleyne is not entitled to

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         retroactive effect in this PCRA setting.”      Id. at 1067
         (emphasis supplied).

Ruiz, 2015 WL 9632089, at *3 (emphasis in original).5

       As Appellant raised his final two sentencing claims in untimely PCRA

petitions, not subject to exception to the PCRA’s one-year time-bar, we

discern no abuse of discretion or error of law in denying relief on his second

and third issues as presented.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/2016




____________________________________________


5
    We note that the future of the Riggle holding is uncertain. This Court
granted en banc review in several cases dealing with retroactive application
of Alleyne in timely filed PCRA petitions. See, e.g., Commonwealth v.
Aybar, 1224 MDA 2014 (October 26, 2015).        Moreover, on December 2,
2015, the Pennsylvania Supreme Court granted allowance of appeal on
another similar case. See Commonwealth v. Washington, 127 A.3d 1287
(Pa. 2015). However, as Appellant’s PCRA petition is untimely, Riggle, and
any subsequent interpretation of that case, are inapplicable here and Ruiz
controls.



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