J-S80006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

DANIEL ALTON,

                          Appellant                  No. 3191 EDA 2017


            Appeal from the PCRA Order Entered August 23, 2017
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0807861-1997


BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

MEMORANDUM BY BENDER, P.J.E.:                       FILED MARCH 12, 2019

      Appellant, Daniel Alton, appeals pro se from the post-conviction court’s

August 23, 2017 order dismissing his second petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

      The facts of Appellant’s underlying convictions are not pertinent to our

disposition of his present appeal. The PCRA court summarized the procedural

history of his case, as follows:

             The reconstructed record reveals that on March 11, 1999,
      [Appellant] was convicted of robbery and related charges and
      sentenced to eight to sixteen years of imprisonment. [Appellant]
      filed a timely appeal, but it was dismissed by the Superior Court
      on February 2, 2001[,] for counsel’s failure to file a brief.

        The remaining procedural history is [quoted] from a prior
      Superior Court opinion:

            On April 4, 2002, Appellant filed a pro se PCRA petition
         requesting reinstatement of his direct appeal rights nunc pro
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          tunc. The trial court dismissed the petition on November
          19, 2002. It appears Appellant did not appeal the denial of
          his petition; rather, on March 11, 2003, he filed a PCRA
          petition, which the trial court dismissed on January 5, 2004,
          as untimely. On appeal, on November 17, 2005, [the
          Superior] Court vacated the order of the trial court, and
          remanded for an evidentiary hearing on the timeliness of
          Appellant’s PCRA petition, and for appointment of new
          counsel. On December 7, 2006, following an evidentiary
          hearing, [the trial c]ourt granted reinstatement of
          Appellant’s right to appeal nunc pro tunc by agreement of
          both parties. Appellant filed his nunc pro tunc appeal on
          January 3, 2007. In the following years, this matter went
          back and forth between [the Superior] Court and the trial
          court mainly for one reason: reconstruction of the trial court
          record, in particular[,] the transcript of the suppression and
          trial proceedings, which proved to be impossible.

             On June 11, 2013, in response to orders from [the
          Superior] Court, the trial court held it was without
          jurisdiction [to entertain Appellant’s PCRA petition] in that,
          [Appellant] is no longer serving a sentence of imprisonment,
          parole or probation in this case. [Appellant] has completely
          satisfied his sentence[ ] of March 19, 1999.

       Commonwealth v. Alton, [No.] 134 EDA 2007[, unpublished
       memorandum at 2-5 (Pa. Super. filed March 31, 2015)] (citations
       [and quotation marks] omitted).

             On appeal, on March 31, 2015, the Superior Court held that
       “we must conclude that Appellant’s instant appeal must be
       dismissed.     Appellant fails to meet the PCRA’s eligibility
       requirements because he has completed his sentence.” Id. On
       July 30, 2015, the Pennsylvania Supreme Court denied
       [Appellant’s] petition for allowance of appeal.1
          1 Commonwealth v. Alton, 121 A.3d 493 (Pa. 2015)
          (table).

          The instant petition for writ of habeas corpus was filed on March
       20, 2003.[1] Over fourteen years later, the Honorable Lisa Rau
       transferred this [filing] to the Criminal Division[,] ostensibly
____________________________________________


1 Appellant’s filing was actually titled, “Complaint,” and was not a writ of
habeas corpus.

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       having reached the conclusion that [Appellant’s complaint] was in
       fact a filing under the [PCRA]. After review, this court determined
       that to the extent his filing is subsumed by the PCRA, [Appellant]
       had no standing to obtain relief and entered an order stating the
       same on August 23, 2017.[2] [Appellant] filed a timely appeal on
       September 19, 2017. This opinion now follows.

PCRA Court Opinion, 11/21/17, at 1-2 (footnote omitted).

       On appeal, Appellant presents the following eight issues for our review:

       I.     Whether Appellant was denied due process of law when [the
              PCRA] … court refused to ensure that a complete record of
              the proceedings below was made a part of the record on
              appeal?

       II.    Whether the [PCRA] court abused its discretion when it
              transferred Appellant’s civil action to the criminal division,
              and refused to return it to [the] same?

       III.   Whether [the PCRA] … court abused its discretion and
              denied due process of law when it ignored Appellant’s post[-
              ]order motions?

       IV.    Whether Appellant was denied due process of law when [the
              PCRA] … court refused to file his post[-]order motions?

       V.     Whether [the PCRA] … court abused its discretion when it
              refused to address Appellant’s motion to transfer [the] case
              back to civil court or transfer [it] sua sponte?

       VI.    Whether Appellant was denied due process of law by [the
              PCRA] … court’s refusal to comply with the provisions of
              [Pa.R.A.P.] 1925(a)…?

       VII.   Whether [the PCRA] … court violated the law of the case
              doctrine when it transferred [the] civil case to [the] criminal
              division?

       VIII. Whether [the PCRA court] erred in refusing to address the
             motion for recusal?
____________________________________________


2 We note that the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent
to dismiss Appellant’s petition without a hearing. Appellant did not file a
response, after which the court entered the order dismissing his petition on
August 23, 2017.

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Appellant’s Brief at 2-3 (unnecessary capitalization omitted).

        We first address Appellant’s second issue, in which he asserts that both

Judge Rau and the current PCRA court erred by construing his civil “Complaint”

as a PCRA petition.3 Appellant is not entitled to relief. He acknowledges that

in his March 20, 2003 “Complaint,” he raised the “same claim of ineffective

assistance of counsel” as he presented in his PCRA petition filed on March 11,

2003.     Id. at 2.     Claims of ineffective assistance of counsel are clearly

cognizable under the PCRA, see 42 Pa.C.S. § 9543(a)(2)(ii), and “[i]ssues

that are cognizable under the PCRA must be raised in a timely PCRA

petition….” Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013).

Therefore, Appellant’s “Complaint” was properly transferred to the criminal

division of the court of common pleas and treated as a PCRA petition.

        We also conclude that the PCRA court did not err by dismissing

Appellant’s petition. As Appellant admits, his “ineffectiveness claim was fully

litigated” during his first PCRA petition, “and the [PCRA court] dismissed [it]

for lack of standing[]” because Appellant “is not currently serving a sentence

on this case, rendering him ineligible for PCRA relief pursuant to 42 Pa.[C.S.]




____________________________________________


3 To the extent Appellant complains that the record is incomplete, as it does
not contain the documents he filed in the civil proceeding, the record belies
this claim.



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§ 9543(a)(1)[(i)].” Appellant’s Brief at 2. Therefore, the PCRA court properly

dismissed Appellant’s petition, as he is ineligible for post-conviction relief.4

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/12/19




____________________________________________


4  Given this disposition, we deem moot and/or meritless Appellant’s
arguments that Judge Rau erred by not addressing several motions he filed
after she transferred his civil case to the criminal court, and that the PCRA
court erred by not addressing, in its Rule 1925(a) opinion, whether the
transfer of his case from civil to criminal court was improper. We also hereby
deny Appellant’s “Application for Special Relief” filed with this Court on
January 3, 2019. Therein, Appellant claims he does not have the ability to
comply with this Court’s copy requirements, and he asks us to order the
Commonwealth to provide him with ‘supplies’ that would enable him to do so.
Because our review of Appellant’s arguments was not hindered by his alleged
inability to meet this Court’s copy requirements, we deny his application.

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