J-A10044-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA


                        v.

    CHOLEY MCKENZIE A/K/A DANIEL
    BROWN

                             Appellant               No. 3061 EDA 2017


                Appeal from the Order Entered August 24, 2017
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0005517-1995


BEFORE: GANTMAN, P.J., MCLAUGHLIN, J., and RANSOM, J.*

MEMORANDUM BY RANSOM, J.:                              FILED JUNE 20, 2018

        Appellant, Choley McKenzie, a/k/a Daniel Brown, appeals from the order

entered August 24, 2017, denying as untimely his petition for collateral relief

flied under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

We affirm.

        We adopt the following statement of facts from the trial court opinion,

which in turn is supported by the record.      See Trial Court Opinion (TCO),

10/27/17, at 1-5.        On November 10, 1995, Appellant was arrested and

charged with possession with intent to deliver and related offenses. 1    It is

unclear from the record why no further action was taken until December 9,

2002. Regardless, on that date, Appellant entered a negotiated guilty plea to

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1   35 P.S. § 780-113(a)(30).

* Retired Senior Judge assigned to the Superior Court.
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PWID. That same day, he was sentenced to the negotiated term of nine to

twenty-three months of incarceration. He did not appeal his sentence, and

indeed, completed it over thirteen years ago.

        At some time in 2017, Appellant was detained on an immigration

violation.   On August 21, 2017, Appellant pro se filed the instant petition,

which he styled as a “Pro Se Motion for Writ of Error Coram Nobis.” 2 Appellant

argued that his plea counsel provided ineffective assistance by 1) not

objecting to the drug type for which Appellant pleaded guilty to possessing;

2) not advising him of his right to a jury trial or his ability to challenge the

evidence; 3) not objecting to the fact that Appellant was deported and the

DA’s office should have dismissed the charges as a result of Appellant’s

deportation; and 4) abandoning Appellant’s direct appeal. See Pro Se Petition

for Writ of Error Coram Nobis, 8/21/17, at 2-6. Appellant also argued that

based upon a change in law, he was entitled to a lesser sentence.3             Id.

Appellant averred that he was entitled to a writ of coram nobis because he

had completed his sentence and relief was no longer available to address the

“miscarriage of justice” that had occurred. Id.

        The trial court denied Appellant’s petition on August 24, 2017. Appellant

timely appealed and both the trial court and Appellant have complied with
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2 A petition for writ of error coram nobis “is generally available to challenge
the validity of a judgment based on facts not before the court when the
judgment was entered.” Commonwealth v. Sheehan, 285 A.2d 465, 467
(Pa. 1971).

3   From his petition, it is unclear the change in law to which Appellant refers.

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Pa.R.A.P. 1925.      In its 1925(a) opinion, the trial court notes that if it did

commit error, it should have treated Appellant’s petition as a PCRA petition

and sent Appellant notice pursuant to Pa.R.Crim.P. 907 that his petition would

be dismissed without a hearing. However, we need not remand for this reason.

4


       Appellant raises the following questions for our review:

       1. Should the result of a conviction rested in the judgment of
       record as the result of the guilty plea of exactly what occurred in
       the court? [sic]

       2. Did the error in the judgment that cause[d] [Appellant] to
       [receive] an enhanced sentence constitute invalidation of this
       conviction where the transcript is unavailable to provide proof of
       simple possession plead?

       3. Did the trial court [err] in denying the petition when it held
       that[] facts were known at the time of the plea that [this] case
       [had remained] open in error?

Appellant’s Brief at 8-9 (some formatting changed).

       Appellant’s mislabeled petition must be considered under the PCRA. The

PCRA expressly states that it “shall be the sole means of obtaining collateral



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4 We note that the failure to issue a Rule 907 notice does not automatically
warrant reversal, especially where Appellant’s petition is patently untimely.
See Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013); see
also Commonwealth v. Pursell, 749 A.2d 911, 917 n.7 (Pa. 2000)
(declining to provide appellant with relief despite PCRA court’s failure to send
required notice, where appellant failed to invoke jurisdiction of the trial court
by pleading and proving the applicability of PCRA timeliness exceptions).
Accordingly, the court’s failure to send Appellant notice pursuant to
Pa.R.Crim.P. 907 does not affect our analysis.


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relief and encompasses … coram nobis.” 42 Pa.C.S. § 9542. As this Court

has previously observed:

      Under the plain words of the statute, if the underlying substantive
      claim is one that could potentially be remedied under the PCRA,
      that claim is exclusive to the PCRA. It is only where the PCRA
      does not encompass a claim that other collateral procedures are
      available.

Commonwealth v. Pagan, 864 A.2d 1231, 1233 (Pa. Super. 2004) (internal

citations omitted). A petitioner cannot escape the timeliness requirements of

the PCRA by mislabeling his petition. See Commonwealth v. Taylor, 65

A.3d 462, 466 (Pa. Super. 2013); Commonwealth v. Mercado, 826 A.2d

897, 899 (Pa. Super. 2003), appeal denied, 832 A.2d 436 (Pa. 2003) (stating

petition for habeas corpus relief must first satisfy jurisdictional PCRA

timeliness requirements).   Here, Appellant’s underlying substantive claims

concern the ineffective assistance of counsel and the legality of his sentence,

which are both claims that are cognizable under the PCRA.          See, e.g.,

Commonwealth v. Voss, 838 A.2d 795 (Pa. Super. 2003).

      We review an order denying a petition under the PCRA to determine

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

record and free of legal error. Commonwealth v. Ragan, 923 A.2d 1169,

1170 (Pa. 2007). We afford the court's findings deference unless there is no

support for them in the certified record. Commonwealth v. Brown, 48 A.3d

1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson, 995

A.2d 1184, 1189 (Pa. Super. 2010)).



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      To be eligible for PCRA relief, an Appellant must, at the time relief is

granted, be currently serving a sentence of imprisonment, probation, or parole

for the crime.   See 42 Pa.C.S. § 9543(a)(1)(i) (emphasis added); see also

Commonwealth v. Ahlborn, 699 A.2d 718, 720 (Pa. 1997); see also

Commonwealth v. Turner, 80 A.3d 754 (2013).               Although Appellant is

apparently in federal custody, he is no longer serving a state sentence, and

accordingly, he is not eligible for PCRA relief.

      Even if Appellant was still serving a sentence, he would not be eligible

for relief. We address the timeliness of Appellant’s petition, as it implicates

our jurisdiction and may not be altered or disregarded in order to address the

merits of his claim. See Commonwealth v. Bennett, 930 A.2d 1264, 1267

(Pa. 2007).   Under the PCRA, any petition for relief, including second and

subsequent petitions, must be filed within one year of the date on which the

judgment of sentence becomes final.           Id.   There are three statutory

exceptions:

      (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.



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42 Pa.C.S. § 9545(b)(1)(i)-(iii).         Any petition attempting to invoke these

exceptions “shall be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000).

       Appellant’s petition is untimely.5 Accordingly, Appellant must establish

jurisdiction by pleading and proving an exception to the timeliness

requirement. See Bennett, 930 A.2d at 1267. However, Appellant neither

pleads nor proves an exception to the time bar. Rather, he seeks relief from

alleged errors he concedes occurred at the time of his guilty plea and

sentence. See Pro Se Petition for Writ of Error Coram Nobis, 8/21/17, at 2-6.

       Appellant’s petition is untimely, and he has failed to establish an

exception to the timeliness requirements of the PCRA.          Consequently, the

PCRA court was without jurisdiction to review the merits of Appellant’s claims

and properly dismissed his petition. See Ragan, 932 A.2d at 1170.

       Order affirmed.




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5 Appellant’s petition is patently untimely. Appellant’s judgment of sentence
became final on January 8, 2003. See 42 Pa.C.S. § 9545(b)(3) (a judgment
of sentence becomes final at the conclusion of direct review or the expiration
of the time for seeking the review). Appellant’s current petition, filed August
21, 2017, was filed over thirteen years late. See Bennett, 930 A.2d at 1267.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/20/18




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