J-S14009-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 STEVEN ERIC SEMPLE                       :
                                          :
                    Appellant             :     No. 2430 EDA 2019

           Appeal from the PCRA Order Entered August 13, 2019
   In the Court of Common Pleas of Montgomery County Criminal Division
                     at No(s): CP-46-CR-0001766-2005

BEFORE: BOWES, J., KING, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                              FILED APRIL 29, 2020

      Steven Eric Semple appeals pro se from the order that dismissed his

petition for writ of habeas corpus as an untimely petition for relief under the

Post Conviction Relief Act (“PCRA”). We affirm.

      The history of this case is as follows.    On March 6, 2006, Appellant

entered a negotiated guilty plea to attempted murder and received the

agreed-upon sentence of seventeen to thirty-four years of imprisonment. He

filed no direct appeal. In September 2006, Appellant filed a pro se motion

challenging the validity of his guilty plea.   The court treated it as a PCRA

petition and appointed counsel, who was ultimately permitted to withdraw

pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and

Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). The

PCRA court dismissed the petition, and Appellant did not appeal.
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      In February 2014, Appellant filed a motion for modification of sentence,

contending that his sentence was excessive, which the court denied as an

untimely post-sentence motion. On appeal, this Court ruled that the motion

should have been treated as Appellant’s second PCRA petition, and affirmed

its dismissal on the basis of untimeliness. See Commonwealth v. Semple,

116 A.3d 682 (Pa.Super. 2014) (unpublished memorandum at 4-5).

      Appellant filed the pro se petition that is the subject of the instant appeal

on June 28, 2019. Therein, Appellant acknowledged that his sentence is legal,

but claimed that it is “excessive and unreasonable and not needed[,]” and

that a miscarriage of justice will occur if his sentence is not vacated. Petition

for Writ of Habeas Corpus Relief, 6/28/19, at 4, 11.           The court treated

Appellant’s petition as his third, untimely PCRA petition and issued notice of

its intent to dismiss it without a hearing pursuant to Pa.R.Crim.P. 907. After

receiving Appellant’s response, the PCRA court dismissed the petition by order

docketed on August 13, 2019.        Appellant filed a timely appeal and both

Appellant and the PCRA court complied with Pa.R.A.P. 1925.

      Appellant presents the following questions for this Court’s review: (1)

“Did the PCRA court incorrectly determined, [sic] that [Appellant’s] habeas

corpus petition seeks relief cognizable under the [PCRA] . . . ?” and (2) “Did

the PCRA court incorrectly determine that [Appellant’s] subsequent converted

PCRA petition is time-barred?”         Appellant’s brief at 6-7 (unnecessary

capitalization omitted).


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      We begin by noting that “the PCRA subsumes all forms of collateral

relief, including habeas corpus, to the extent a remedy is available under such

enactment.” Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007).

“[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,

466 (Pa.Super. 2013). “Simply because the merits of the PCRA petition cannot

be considered due to previous litigation, waiver, or an untimely filing, there is

no alternative basis for relief outside the framework of the PCRA.”

Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.Super. 2001).

However, “claims that fall outside the eligibility parameters of the PCRA may

be raised through a writ of habeas corpus.” Commonwealth v. Masker, 34

A.3d 841, 850 (Pa.Super. 2011) (en banc).

      The PCRA court and the Commonwealth maintain that Appellant’s

petition challenges the legality of his sentence.     See Trial Court Opinion,

11/18/19, at 5; Commonwealth’s brief at 8-9. Such claims are cognizable

under the PCRA. See, e.g., Commonwealth v. Ballance, 203 A.3d 1027,

1031 (Pa.Super. 2019) (noting that the legality of a sentence is always subject

to review through a timely PCRA petition).

      Yet, Appellant expressly acknowledges that his sentence is within the

lawful maximum.     See Appellant’s brief at 16.     His claim is that his legal

sentence is unreasonable and excessive under the circumstances. Id. Hence,

Appellant’s contentions implicate the discretionary aspects of his sentence.


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See, e.g., Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006)

(holding claim that sentence is unreasonable challenges discretionary aspects

of sentence).

      This Court has held that “[c]hallenges to the discretionary aspects of

sentencing are not cognizable under the PCRA.” Commonwealth v. Fowler,

930 A.2d 586, 593 (Pa.Super. 2007). See also Commonwealth v. Wrecks,

934 A.2d 1287, 1289 (Pa.Super. 2007) (“Requests for relief with respect to

the   discretionary   aspects   of   sentence   are   not   cognizable   in   PCRA

proceedings.”). However, we have also acknowledged that “the PCRA statute

is intended as the sole means of collaterally challenging a sentence.”

Commonwealth v. Concordia, 97 A.3d 366, 372 (Pa.Super. 2014). See

also Taylor, supra at 467 (questioning in dicta the validity of decisional law

concerning the cognizability of discretionary aspects claims under the PCRA).

      Nonetheless, regardless of which framework applies, it is abundantly

clear that Appellant is entitled to no relief. If the PCRA applies, the petition

was properly dismissed as untimely. See, e.g., Taylor, supra at 468 (“A

petition for relief under the PCRA must be filed within one year of the date the

PCRA petitioner’s judgment of sentence becomes final unless the petitioner

alleges and proves that an exception to the one-year time-bar is met.”). The

claim further fails to qualify for habeas corpus relief, as “[i]t is well settled

that the extraordinary remedy of habeas corpus, which can be successfully

invoked only in exceptional cases, is not a substitute for an appeal or a motion


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for a new trial, nor is it available for the correction of trial errors.” Com. ex

rel. Williams v. Myers, 162 A.2d 419, 420 (Pa. Super. 1960). See also

Com. ex rel. Ashmon v. Banmiller, 137 A.2d 236, 238 (Pa. 1958) (“[A]

habeas corpus petition is not available for the correction of trial errors which

could have been reviewed and corrected on appeal; it is not a substitute for

an appeal or for a writ of error or for a motion for a new trial.”).

      Moreover, Appellant was sentenced pursuant to a negotiated plea

agreement.    It is axiomatic that “[o]ne who pleads guilty and receives a

negotiated sentence may not then seek discretionary review of that sentence.”

Commonwealth v. O’Malley, 957 A.2d 1265, 1267 (Pa.Super. 2008). See

also Commonwealth v. Reid, 117 A.3d 777, 784 (Pa.Super. 2015) (holding

challenges to discretionary aspects of a negotiated sentence are waived and

unreviewable). Therefore, Appellant’s discretionary aspects claim would have

been deemed waived even if he had raised it in a post-sentence motion and

pursued it on direct appeal.

      As such, it is apparent from the record that there is no viable avenue

for Appellant to obtain the relief requested in his petition. Therefore, it was

properly dismissed.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/29/2020




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