J-S23023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SHELDON BLAIR CULBREATH

                            Appellant                  No. 3100 EDA 2015


                   Appeal from the PCRA Order October 1, 2015
              In the Court of Common Pleas of Montgomery County
               Criminal Division at No(s): CP-46-CR-0016474-1996


BEFORE: PANELLA, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                   FILED MAY 17, 2016

        Sheldon Blair Culbreath appeals, pro se, from the order entered

October 1, 2015, in the Montgomery County Court of Common Pleas denying

his petition for habeas corpus, which the court construed to be a fourth

petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546.             Culbreath seeks relief from the

judgment of sentence of an aggregate 17½ to 50 years’ imprisonment

imposed on April 2, 1998, following his conviction of possession with intent

to deliver controlled substances, corrupt organizations, and conspiracy 1 for

his involvement in an illegal drug distribution ring.     On appeal, Culbreath

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*
    Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30), and 18 Pa.C.S. §§ 911 and 903, respectively.
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argues the PCRA court improperly denied him relief from an illegal sentence.

We affirm.

       The facts and procedural history underlying this appeal are well known

to the parties, and were summarized by a panel of this Court in a prior

unpublished      decision    affirming     the       denial   of    PCRA    relief.    See

Commonwealth           v.   Culbreath,         118    A.3d    453    (Pa.   Super.    2015)

(unpublished memorandum).            Therefore, we need not recite them herein.

We note only that, in the prior decision, the panel determined that

Culbreath’s third PCRA petition, filed on June 16, 2014, was untimely. Id.

Moreover, the panel concluded that, to the extent Culbreath argued his

sentence was illegal pursuant to Alleyne v. United States, 133 S.Ct. 2151

(U.S. 2013),2 the claim was (1) waived because Culbreath failed to plead or

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2
  In Alleyne, the United States Supreme Court held “[a]ny fact that, by law,
increases the penalty for a crime is an ‘element’ that must be submitted to
the jury and found beyond a reasonable doubt.” Alleyne, supra, 133 S.Ct.
at 2155. In interpreting that decision, the courts of this Commonwealth
have determined that most of our mandatory minimum sentencing statutes
are unconstitutional because the language of those statutes “permits the
trial court, as opposed to the jury, to increase a defendant’s minimum
sentence based upon a preponderance of the evidence” standard.
Commonwealth v. Newman, 99 A.3d 86, 98 (Pa. Super. 2014) (en banc),
appeal denied, 121 A.3d 496 (Pa. 2015).           See Commonwealth v.
Hopkins, 117 A.3d 247 (Pa. 2015) (invalidating 18 Pa.C.S. § 6317);
Commonwealth v. Vargas, 108 A.3d 858 (Pa. Super. 2014) (en banc),
(invalidating 18 Pa.C.S. § 7508), appeal denied, 121 A.3d 496 (Pa. 2015).
Further, our courts have held that the unconstitutional provisions of the
mandatory minimum statutes are not severable from the statute as a whole.
Hopkins, supra, 117 A.3d at 262; Newman, supra, 99 A.3d at 101.

(Footnote Continued Next Page)


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prove that (a) Alleyne satisfied one of the time-for-filing exceptions, and

(b) the petition was filed within 60 days of that decision, and (2) meritless,

because “neither the Supreme Court of the United States nor the Supreme

Court of Pennsylvania has held Alleyne to apply retroactively to matters on

collateral appeal[.]”         Culbreath, supra, 118 A.3d 453 (unpublished

memorandum at *2). Culbreath’s subsequent petition for review before the

Pennsylvania Supreme Court was denied. Commonwealth v. Culbreath,

116 A.3d 602 (Pa. 2015).

      On August 20, 2015, Culbreath filed the instant petition, styled as a

petition for writ of habeas corpus, in which he asserted his mandatory

minimum sentence, imposed pursuant to 18 Pa.C.S. § 7508, is a “nullity” in

light of this Court’s decision in Commonwealth v. Newman, 99 A.3d 86

(Pa. Super. 2014) (en banc), appeal denied, 121 A.3d 496 (Pa. 2015). The

PCRA court determined Culbreath’s petition was “really a serial [PCRA]

petition,” and on September 2, 2015, issued notice, pursuant to Pa.R.Crim.P.

907, of its intent to dismiss the petition as untimely filed without first

conducting an evidentiary hearing. Culbreath did not file a response to the

court’s Rule 907 notice. Consequently, on October 1, 2015, the PCRA court


                       _______________________
(Footnote Continued)

      Here, Culbreath asserts he was sentenced pursuant to the mandatory
minimum provision at 18 Pa.C.S. § 7508, which, pursuant to the case law
stated above, has been declared unconstitutional “in its entirety.”
Commonwealth v. Carter, 122 A.3d 388, 393 (Pa. Super. 2015).




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entered an order dismissing Culbreath’s petition.           This timely appeal

followed.3

       Culbreath’s sole issue on appeal asserts he is entitled to relief from his

illegal sentence “as the statute has been unconstitutional from the date of its

passage and ineffective for any purpose[.]” Culbreath’s Brief at 10.

       Our standard of review of an order denying PCRA relief is
       whether the record supports the PCRA court’s determination and
       whether the PCRA court’s decision is free of legal error. The
       PCRA court’s findings will not be disturbed unless there is no
       support for the findings in the certified record.

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

citations omitted).

       Preliminarily, we note the PCRA court properly construed Culbreath’s

habeas petition to be a PCRA petition. The PCRA clearly states it is “the sole

means of obtaining collateral relief and encompasses all other common law

and statutory remedies …, including habeas corpus and coram nobis.” 42

Pa.C.S. § 9542. Therefore, “if the underlying substantive claim is one that

could potentially be remedied under the PCRA, that claim is exclusive to

the PCRA.” Commonwealth v. Pagan, 864 A.2d 1231, 1233 (Pa. Super.

2004), cert. denied, 546 U.S. 909 (2005) (emphasis in original).            See

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3
  On October 16, 2015, the PCRA court ordered Culbreath to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Culbreath complied with the court’s directive, and filed a concise statement
on October 29, 2015.




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

differently, a defendant cannot escape the PCRA time-bar by titling his

petition or motion as a writ of habeas corpus.”) (footnote omitted).

Accordingly, because “[i]ssues concerning the legality of sentence are

cognizable under the PCRA[,]”4 the court properly reviewed Culbreath’s

petition under the rubric of the PCRA.

       In the present case, the PCRA court determined Culbreath’s petition,

his fourth, was untimely filed.        See Trial Court Opinion, 11/4/2015, at 6.

See also Culbreath, supra, 118 A.3d 453 (unpublished memorandum at 1-

2) (holding Culbreath’s third PCRA petition, filed on June 16, 2014, was

untimely).    We agree.      Culbreath’s judgment of sentence became final on

February 16, 1999, 30 days after this Court affirmed the sentence on direct

appeal, and Culbreath did not petition the Supreme Court for allowance of

appeal. See Culbreath, supra, 118 A.3d 453 (unpublished memorandum

at *2. See also 42 Pa.C.S. § 9545. Therefore, the instant petition filed on

August 20, 2015, was patently untimely.

       However, pursuant to 42 Pa.C.S. § 9545, an otherwise untimely

petition is not time-barred if a petitioner pleads and proves the applicability

of one of three time-for-filing exceptions:

       (i) the failure to raise the claim previously was the result of
       interference by government officials with the presentation of the
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4
    Commonwealth v. Beck, 848 A.2d 987, 989 (Pa. Super. 2004).



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      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)-(iii). Further, any petition invoking one of these

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

been presented.” Id. at § 9545(b)(2).

      Rather than prove the applicability of one of the Section 9545(b)

exceptions, Culbreath contends simply that Section 7508 “is void ab initio, a

nullity and not subject to any timeliness constraints when being challenged.”

Culbreath’s Brief at 12. However, this argument has no support under the

PCRA.

      The mandate of the statute is clear:

      The PCRA’s timeliness requirements are jurisdictional; therefore,
      a court may not address the merits of the issues raised if the
      petition was not timely filed. Commonwealth v. Abu–Jamal,
      574 Pa. 724, 833 A.2d 719, 723–24 (2003); Commonwealth v.
      Murray, 562 Pa. 1, 753 A.2d 201, 203 (2000). The timeliness
      requirements apply to all PCRA petitions, regardless of the
      nature of the individual claims raised therein. Murray, at 203.

Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 2012).            This includes an

Alleyne claim challenging the legality of a sentence. See Commonwealth

v. Miller, 102 A.3d 988, 995 (Pa. 2014).




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       Accordingly, because Culbreath’s petition was untimely filed, and he

did not plead and prove the applicability of one of the time for filing

exceptions set forth in Section 9545(b), he is entitled to no relief.5

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/2016



____________________________________________


5
  Furthermore, we note that even if Culbreath had attempted to invoke one
of the time-for-filing exceptions, his claim would still fail. First, Culbreath
raised an Alleyne challenge in his third PCRA appeal. See Culbreath,
supra. Accordingly, the claim is previously litigated. See 42 Pa.C.S. §
9544(a)(3) (a claim is previously litigated if “it has been raised and decided
in a proceeding collaterally attacking the conviction or sentence.”). Second,
his petition was filed on August 20, 2015, more than 60 days after Alleyne
was decided on June 17, 2013. See 42 Pa.C.S. § 9545(b)(2). Third, none
of the time-for-filing exceptions are applicable to his Alleyne claim.
Culbreath’s claim does not include any facts which could reasonably support
an allegation of “interference by government officials” pursuant to Section
9545(b)(1)(i). Moreover, this Court has “expressly rejected the notion that
judicial decisions can be considered newly-discovered facts which would
invoke the protections afforded by section 9545(b)(1)(ii).” Commonwealth
v. Cintora, 69 A.3d 759, 763 (Pa. Super. 2013). Finally, in Miller, supra, a
panel of this Court held that an Alleyne claim fails to satisfy the “new
constitutional right exception to the time-bar” codified at Section
9545(b)(1)(iii) because neither the United States or Pennsylvania Supreme
Court has held that Alleyne is to be applied retroactively. Miller, supra,
102 A.3d at 995.



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