J-S33004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DEVIN RYAK                                 :
                                               :
                       Appellant               :   No. 2436 EDA 2017

                   Appeal from the PCRA Order July 13, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0910761-2003


BEFORE:      OTT, J., McLAUGHLIN, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                                    FILED JULY 26, 2018

        Devin Ryak appeals, pro se, from the order entered July 13, 2017, in

the Philadelphia County Court of Common Pleas, dismissing his petition for

writ of habeas corpus, which the trial court construed to be an untimely PCRA1

petition. Ryak seeks relief from the judgment of sentence of life imprisonment

without parole, imposed on March 29, 2006, following his jury conviction of

first-degree murder2 and related charges. Ryak’s sole issue on appeal asserts

the trial court abused its discretion when it treated his habeas corpus petition

as a PCRA petition. For the reasons below, we affirm.
____________________________________________


   Former Justice specially assigned to the Superior Court.

1   Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.

2   18 Pa.C.S. § 2502.
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        The facts and procedural history underlying this appeal are well-known

to the parties, and we need not reiterate them in detail herein. In summary,

on February 21, 2006, Ryak was convicted of first-degree murder, criminal

conspiracy and possession of an instrument of crime 3 for the July 26, 2003,

shooting death of Hakim Williams. His judgment of sentence was affirmed on

direct appeal, and the Pennsylvania Supreme Court subsequently denied his

petition for review. See Commonwealth v. Ryak, 943 A.2d 321 (Pa. Super.

2007) (unpublished memorandum), appeal denied, 945 A.2d 169 (Pa. 2008).

Thereafter, Ryak filed a timely and, later, untimely PCRA petitions, both of

which were denied by the trial court. This Court affirmed those denials of

relief on appeal. See Commonwealth v. Ryak, 64 A.3d 1296 (Pa. Super.

2013); Commonwealth v. Ryak, 134 A.3d 109 (Pa. Super. 2015), appeal

denied, 132 A.3d 458 (Pa. 2016).

        On January 4, 2017, Ryak filed the instant request for relief, which he

styled as a petition for writ of habeas corpus. On May 31, 2017, the trial court

issued notice of its intent to dismiss the petition as an untimely PCRA petition

pursuant to Pa.R.Crim.P. 907.          Subsequently, on July 13, 2017, the court

dismissed the petition, and this timely pro se appeal followed.4

____________________________________________


3   See 18 Pa.C.S. §§ 2502, 903, and 907, respectively.

4On August 15, 2017, the trial court ordered Ryak to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Ryak
complied with the court’s directive, and filed a concise statement on August
25, 2017.


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        Ryak’s sole claim on appeal is that the trial court abused its discretion

when it “converted” his habeas petition to a PCRA petition, which it then

determined was untimely filed. Ryak’s Brief at 6. Specifically, he insists the

claim he raised in his petition is not cognizable under the PCRA.         See id.

Indeed, he contends the statute under which he was sentenced, 18 Pa.C.S. §

1102(a),5 is “unconstitutionally vague and therefore void” under the due

process clause, because the statute does not “reasonably give fair notice” that

the penalty of life imprisonment for first-degree murder is without parole. Id.

at 7.

        “In reviewing the denial of PCRA relief, we examine whether the PCRA

court’s determination is supported by the record and free of legal error.”

Commonwealth v. Mitchell, 141 A.3d 1277, 1283–1284 (Pa. 2016)

(internal punctuation and citation omitted).        Further, a PCRA court may

dismiss a petition “without an evidentiary hearing if there are no genuine

issues of material fact and the petitioner is not entitled to relief.” Id. at 1284

(citations omitted).

        The PCRA is clear that it is “the sole means of obtaining collateral relief

and encompasses all other common law and statutory remedies …, including

____________________________________________


5 Section 1102(a) provides, in pertinent part, “a person who has been
convicted of a murder of the first degree … shall be sentenced to death or to
a term of life imprisonment in accordance with 42 Pa.C.S. § 9711 (relating to
sentencing procedure for murder of the first degree).”         18 Pa.C.S. §
1102(a)(1).



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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). Subsequently, this Court further explained, “[i]ssues

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

and cannot be raised in a habeas corpus petition.”          Commonwealth v.

Taylor, 65 A.3d 462, 466 (Pa. Super. 2013).

      Here, Ryak does not challenge the court’s determination that his

petition, if viewed under the rubric of the PCRA, is untimely. Rather, the sole

question on appeal is whether the claim Ryak raised in his petition is

cognizable under the PCRA. We agree with the trial court’s conclusion.

      Section 9543 of the PCRA lists the seven specific claims cognizable under

the Act. See 42 Pa.C.S. § 9543(a)(2). Included in these bases for relief is

“[t]he imposition of a sentence greater than the lawful maximum.” 42 Pa.C.S.

§ 9543(a)(2)(vii). Ryak insists his constitutional challenge to the sentencing

statute does not fall under this claim. However, the Pennsylvania Supreme

Court has interpreted Subsection 9543(a)(2) broadly, as is evident from its

recent decision granting a defendant relief from an illegal sentence under

Alleyne v. United States, 570 U.S. 99 (2013):

      We are cognizant that Section 9543 specifically delineates the
      availability of relief and includes relief from “[t]he imposition of a
      sentence greater than the lawful maximum[;]” or “[a] proceeding
      in a tribunal without jurisdiction.”          Id. § 9543(vii), (viii).
      However, the traditional view of sentence illegality claims was

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       limited to either a sentence that exceeded that statutory
       maximum or one imposed by a court lacking jurisdiction. In
       [Commonwealth v.] Barnes, [151 A.3d 121 (Pa. 2016),] this
       Court adopted a test to determine whether a sentencing claim is
       illegal, thereby expanding the concept of illegal sentencing. That
       the PCRA speaks to addressing illegal sentences and specifically
       sentences exceeding the lawful maximum or imposed by a court
       without jurisdiction, does not preclude [a petitioner] from
       obtaining relief from his unquestionably illegal sentence, as the
       “legality of the sentence is always subject to review within the
       PCRA” where, as here, the petition is timely.

Commonwealth v. DiMatteo, 177 A.3d 182, 192 (Pa. 2018) (some internal

citations omitted).

       In his petition, Ryak asserts his sentence is unconstitutional, and

thereby illegal, because the statute authorizing a life sentence for those

convicted of first-degree murder, 18 Pa.C.S. § 1102, does not specify that

term is to be imposed without parole. We agree with the trial court that this

claim is cognizable under the PCRA as a challenge to the legality of Ryak’s

sentence.6 Therefore, Ryak was constrained to bring this claim in a timely

PCRA petition. Moreover, because his judgment of sentence was final in June

of 2008, Ryak’s current petition is patently untimely. See Commonwealth

v. Ryak, 134 A.3d 109 (Pa. Super. 2015) (unpublished memorandum at *3)

(concluding Ryak’s prior PCRA petition, filed in April of 2013, was untimely).

Furthermore, as noted supra, Ryak does not argue on appeal that his petition

was timely filed, nor does he raise any of the time for filing exceptions set

____________________________________________


6 Indeed, even considering the language of Section 9543(a)(2) narrowly, an
argument could be made that Ryak’s sentence is greater than the lawful
maximum if it were to be determined that the statute imposing a life sentence
without parole was unconstitutionally vague.

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forth in 42 Pa.C.S. § 9545(b)(1).   Accordingly, we conclude the trial court

properly dismissed Ryak’s request for relief as an untimely PCRA petition.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/18




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