J-S29025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 MAURICE HIGHLEY                          :
                                          :
                    Appellant             :   No. 3185 EDA 2018

           Appeal from the PCRA Order Entered October 3, 2018
    In the Court of Common Pleas of Lehigh County Criminal Division at
                     No(s): CP-39-CR-0003693-2014


BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                             FILED JULY 09, 2019

      Maurice Highley appeals, pro se, from the order, entered in the Court of

Common Pleas of Lehigh County, dismissing his petition for relief under the

Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”), and his

petition for a writ of habeas corpus. After careful review, we affirm.

      On December 23, 2014, Highley pleaded guilty to two counts of

possession of a controlled substance with intent to deliver, for which the court

imposed an aggregate sentence of one to four years’ incarceration on February

9, 2015. He did not file a direct appeal. Though there are no docket entries

between May 18, 2015, when the court amended Highley’s sentence to make

him eligible for boot camp, and May 30, 2018, when the PCRA court appointed

counsel to pursue the instant PCRA petition, it is clear that Highley was
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released on parole, violated his parole, and returned to confinement.1

Following his return to confinement, the Board of Probation and Parole (“the

Board”) determined Highley would not receive credit for his time spent at

liberty, owing to Highley’s unresolved drug issues and the similarity between

offences committed while at large and the conviction at issue.2 See PCRA

Petition, 5/30/18, Exhibit A (reproducing notice of the Board’s decision).

       Highley filed the instant PCRA petition on May 20, 2018, for the purpose

of challenging the Board’s decision not to grant him credit for time spent at

liberty, resulting in his release date being pushed back from January 24, 2019

to August 6, 2020. See id. at 5 (“I’m filing [] to receive my time credit [from]

the Parole Board spent at liberty on parole”) (capitalization adjusted); see

also Brief of Appellant, Appendix A (attaching to brief Highley’s request for

administrative review addressed to Board).       On May 30, 2018, the court

appointed Sean Poll, Esquire, who filed a “no-merit” letter and petitioned to


____________________________________________


1 All involved—including the PCRA court, the Commonwealth, and Highley
himself—failed to fully develop the factual basis underpinning the instant case.
The clearest picture of what happened below can be gleaned from Highley’s
initial, handwritten PCRA petition which states, “I was re-arrested on 1-6-2017
while on parole for criminal case no CP 0003693 [the instant case] for CR-
266-2017 out of Carbon County Pa. I seen [sic] my parole agent upon reentry
on 6-21-17. I receive[d] my Parole Board decision on Oct[.] 16[,] 2017
denying my time at liberty.” PCRA Petition, 5/30/18, at 10 (capitalization
adjusted).

2 Highley’s copy of the Board’s decision, reproduced as an appendix to his
handwritten PCRA petition, states he received a sentence of “9 months for the
offenses of possession of a controlled substance and use/possession of drug
paraphernalia.” PCRA Petition, 5/30/18, Exhibit A (capitalization adjusted).

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withdraw as counsel on August 28, 2018, pursuant to Commonwealth v.

Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d

213 (Pa. Super. 1988) (en banc). On September 4, 2018, the PCRA court

issued notice of its intent to dismiss Highley’s petition without a hearing

pursuant to Pa.R.Crim.P. 907. In response, Highley filed a petition for a writ

of habeas corpus.     On October 3, 2018, the PCRA court dismissed both

petitions and granted Attorney Poll’s motion to withdraw. Highley’s pro se

appeal followed.

      Highley argues the PCRA court erred in dismissing both his petition for

PCRA relief and his petition for a writ of habeas corpus. See Brief of Appellant,

at 8. This Court is without jurisdiction to consider either petition.

      A PCRA petition, including a second or subsequent petition, must be filed

within one year of the date the underlying judgment of sentence becomes

final. See 42 Pa.C.S.A. § 9545(b)(1); see also Commonwealth v. Bretz,

830 A.2d 1273, 1275 (Pa. Super. 2003). A judgment is deemed 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 review.” 42 Pa.C.S.A. § 9545(b)(3); see also

Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super. 2006).

      Here, Highley’s judgment of sentence became final on or about March

11, 2015, following the expiration of the thirty-day period for filing a direct

appeal. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Thus, he had one


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year from that date—until March 11, 2016—to timely file a PCRA petition.

See 42 Pa.C.S.A. § 9545(b). Highley did not file the instant petition until May

20, 2018,3 more than three years after his judgment of sentence became final.

Accordingly, the court had no jurisdiction to entertain Highley’s PCRA petition

unless he pleaded and proved one of the three statutory exceptions to the

time bar.4 See 42 Pa.C.S.A. § 9545(b)(1)(i–iii). Highley failed to do so. The

court properly dismissed his PCRA petition.


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3 We have used the date listed on Highley’s pro se PCRA filings, rather than
the date provided on the docket. See PCRA Petition, 5/20/18, at 12 (stating
copies of PCRA petition were mailed on May 20, 2018); see also
Commonwealth v. Chambers, 35 A.3d 34, 39 (Pa. Super. 2011) (applying
prisoner mailbox rule, under which pro se prisoner’s appeals deemed filed on
date of delivery to prison authorities or placed notice of appeal in institutional
mailbox). We note the docket states the court appointed PCRA counsel on
May 30, 2018, and that Highley filed his PCRA petition on June 6, 2018—a
logical impossibility.

4   The statutory exceptions are as follows:

        (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).


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       The court dismissed Highley’s petition for a writ of habeas corpus as a

second, untimely PCRA petition. See Pa.R.A.P. 1925(a) Opinion, 12/12/2018,

citing 42 Pa.C.S.A. § 1942 (providing PCRA is “the sole means of obtaining

collateral relief [encompassing] all other common law and statutory remedies

for the same purpose . . . including habeas corpus and coram nobis.”).

       True habeas corpus petitions are properly construed as PCRA petitions—

however, a pro se petition, though styled as a habeas corpus petition, falls

within the exclusive jurisdiction of the Commonwealth Court when it seeks

direct review of the Board of Probation and Parole’s actions. See 42 Pa.C.S.

§§ 761(a)(1)(i), 762(a)(1)(i) (outlining jurisdiction of Commonwealth Court);

see also Gillespie v. Commonwealth, Dept. of Corrections, 527 A.2d

1061    (Pa.   Cmwlth.   1987)   (considering   action   properly   filed   before

Commonwealth Court, though titled as petition for habeas corpus, when

petition was “not a proper habeas corpus action but rather akin to an action

in mandamus.”) and Commonwealth v. McDermott, 547 A.2d 1236, 1240

(Pa. Super. 1988) (“Appeals from common pleas court parole orders are within

the exclusive jurisdiction of the Superior Court, while appeals from

administrative parole orders are within the exclusive jurisdiction of the

Commonwealth Court”).

       Here, Highley is attempting to appeal an administrative parole order and

is seeking review of the Board’s actions. See Brief of Appellant, Exhibit A, at

1–6 (reproducing Highley’s “Request for Administrative Review”). As such,


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neither this Court nor the PCRA court has jurisdiction to consider his habeas

corpus petition.5 See McDermott, supra at 1240. Consequently, though it

would have been more appropriate to construe Highley’s petition as incorrectly

filed rather than untimely, the PCRA court correctly dismissed his petition for

want of jurisdiction. See id.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/9/19




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5Should Highley seek further review of the Board’s decision, relief lies in a
petition for a writ of mandamus before the Commonwealth Court. See
Gillespie, supra.

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