J.S23036/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
GLENN R. MILLER,                            :
                                            :
                          Appellant         :
                                            :     No. 2867 EDA 2015

                  Appeal from the PCRA Order August 25, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-1003861-1978

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

MEMORANDUM BY FITZGERALD, J.:                         FILED MARCH 22, 2016

        Appellant, Glenn R. Miller, appeals pro se from the order entered in the

Philadelphia County Court of Common Pleas dismissing his Post Conviction

Relief Act1 (“PCRA”) petition based upon untimeliness and denying his

petition for writ of habeas corpus.2 Appellant contends the court committed

reversible error in denying him access to his written sentencing order dated




*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
2
  We note that Appellant filed a petition for writ of mandamus, which the
PCRA court treated as a petition for writ of habeas corpus. See infra.
J.S23036/16


July 24, 1979. He avers in his PCRA petition that it was timely filed pursuant

to Missouri v. Frye, 132 S. Ct. 1399 (2012).3 We affirm.

      The PCRA court set forth the procedural posture of this case as

follows:

              On February 26, 1979, [Appellant] was convicted of
           First degree Murder following a jury trial presided over by
           the Honorable Bernard J. Goodheart.         After post-trial
           motions were denied, [Appellant] was sentenced to the
           mandatory term of life imprisonment.             [Appellant]
           appealed to the Supreme Court of Pennsylvania, which
           denied relief on May 25, 1982.

              On January 11, 1983, [Appellant] filed a pro se [PCHA]
           petition . . . . Counsel was appointed, and after review
           [Appellant’s] PCHA petition was denied without a hearing
           on March 23, 1984. [Appellant] appealed and the Superior
           Court affirmed the dismissal on February 18, 1986. The
           Supreme Court denied allocatur on April 17, 1990.

              On December 5, 1996, [Appellant] filed a pro se petition
           under the PCRA. After review, it was dismissed on March
           20, 1997. The Superior Court affirmed the dismissal on
           November 9, 1998. The Supreme Court denied allocatur
           on March 16, 1999.

              On May 15, 2012, [Appellant] filed the instant PCRA
           petition, his third. . . .

PCRA Ct. Op., 10/16/15, at 1-2.

      On July 14, 2014, Appellant filed a Petition for Writ of Mandamus

seeking a copy of his written sentencing order dated July 24, 1979.       Pet.

3
  In his pro se brief, Appellant does not address the timeliness of his PCRA
petition. He summarily avers, in his statement of the case, that he filed a
PCRA petition raising the Lafler/Frye claim. See Appellant’s Brief at VI.
We note further that in his PCRA petition, Appellant does not refer to Lafler
v. Cooper, 132 S. Ct. 1376 (2012).



                                      -2-
J.S23036/16


Writ Mandamus, 7/14/14, at 2. The PCRA court treated the petition for writ

of mandamus as a petition for writ of habeas corpus.         The PCRA court

dismissed the PCRA petition as untimely and denied the petition for writ of

habeas corpus. This timely appeal followed. Appellant was not ordered to

file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.

      Appellant raises the following issue for our review: “Did the Honorable

Jeffrey P. Minehart, Judge, commit reversible error in denying Appellant

access to a copy of his written judicial order of sentence as rendered by trial

court Judge Bernard J. Goodheart dated July 24, 1979?” Appellant’s Brief at

V. In his PCRA petition, Appellant claims that the petition was timely under

the PCRA’s “newly recognized constitutional right” exception in 42 Pa.C.S. §

9545(b)(1)(iii), following the decision of the United States Supreme Court in

Frye. PCRA Pet., 5/15/12, at 8-9 (unpaginated).

      This Court has stated:

            Our standard of review of the denial of a PCRA
            petition is limited to examining whether the court’s
            rulings are supported by the evidence of record and
            free of legal error. This Court treats the findings of
            the PCRA court with deference if the record supports
            those findings.     It is an appellant’s burden to
            persuade this Court that the PCRA court erred and
            that relief is due.

                                 *    *    *

         The PCRA time limitations, and exceptions thereto, are set
         forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii). That section
         states:

            (b) Time for filing petition.—


                                     -3-
J.S23036/16



              (1) Any petition under this subchapter, including a
              second or subsequent petition, shall be filed within
              one year of the date the judgment becomes final,
              unless the petition alleges and the petitioner proves
              that:

                 (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.

           To invoke one of these exceptions, the petitioner must
        plead it and satisfy the burden of proof. Additionally, any
        exception must be raised within sixty days of the date that
        the claim could have been presented. 42 Pa.C.S.A §
        9545(b)(2). Our Supreme Court “has repeatedly stated
        that the PCRA timeliness requirements are jurisdictional in
        nature and, accordingly, a PCRA court cannot hear
        untimely PCRA petitions.”

Commonwealth v. Feliciano, 69 A.3d 1270, 1274-75 (Pa. Super. 2013)

(some citations omitted). “[A] judgment becomes final at the conclusion of

direct review, including discretionary review in . . . Supreme Court of

Pennsylvania, or at the expiration of time for seeking the review.”        42

Pa.C.S. § 9545(b)(3).



                                     -4-
J.S23036/16


        Appellant filed the instant serial PCRA petition on April 18, 2012, and

thus, it is patently untimely.4 See 42 Pa.C.S. § 9545(b)(1). Therefore, we

determine whether, as averred by Appellant, any timeliness exception

applies in this case.    The PCRA court concluded that the decisions of the

United States Supreme Court in Lafler and Frye did not create a new

constitutional right to overcome the time-bar. See PCRA Ct. Op. at 3. The

Feliciano Court considered this precise issue as follows:

          [T]he Frye Court held “that, as a general rule, defense
          counsel has the duty to communicate formal offers from
          the prosecution to accept a plea on terms and conditions
          that may be favorable to the accused.” Id. at 1408. In
          determining whether counsel has satisfied this obligation,
          the two-part test set forth in Strickland applies. See id.
          at 1409. In Lafler, the Court explained that to meet the
          prejudice prong of the Strickland test where the alleged
          ineffectiveness of counsel involves the defendant’s
          rejection of a plea offer, the defendant must show,

4
    We note that

          [t]he 1995 amendments to the Act, which adopted the
          time-bar, also provide that if the judgment of sentence
          became final before the January 16, 1996 effective date of
          the amendments, a PCRA petition will be considered timely
          if it is filed within one year of that date, or by January 16,
          1997. But this grace period only applies to first post-
          conviction petitions filed as of right, not serial petitions.
          As this Court explained in Commonwealth v. Fahy, [737
          A.2d 214 (Pa. 1999),] “where the judgment becomes final
          on or before the [PCRA’s 1995] amendments’ effective
          date, a petition will be deemed timely if the petitioner’s
          first petition is filed within one year of the effective date of
          the amendments.” [Id. at 218 (emphasis in original)].

Commonwealth v. Lesko, 15 A.3d 345, 361 (Pa. 2011).




                                       -5-
J.S23036/16



              that but for the ineffective advice of counsel there is
              a reasonable probability that the plea offer would
              have been presented to the court (i.e., that the
              defendant would have accepted the plea and the
              prosecution would not have withdrawn it in light of
              intervening circumstances), that the court would
              have accepted its terms, and that the conviction or
              sentence, or both, under the offer's terms would
              have been less severe than under the judgment and
              sentence that in fact were imposed.

         Lafler, 132 S. Ct. at 1385.

             It is apparent that neither Frye nor Lafler created
         a new constitutional right. Instead, these decisions
         simply applied the Sixth Amendment right to counsel, and
         the     Strickland   test   for  demonstrating      counsel’s
         ineffectiveness, to the particular circumstances at hand,
         i.e. where counsel’s conduct resulted in a plea offer lapsing
         or being rejected to the defendant’s detriment.

Feliciano, 69 A.3d at 1276-77 (emphasis added and footnotes omitted).

       As Frye did not create a new constitutional right, Appellant’s claim

that   this   decision   provided    a    time-bar   exception   under   Section

9545(b)(1)(iii) is meritless.   See id. at 1277. We find that this issue has

been settled by our decision in Feliciano, and thus detect no basis upon

which to conclude that the PCRA court erred in dismissing the instant

petition as untimely.

       Lastly, we consider whether the PCRA court erred in denying

Appellant’s Petition for Writ of Mandamus. Appellant contends because the

Department of Corrections (“DOC”) did not have a copy of his sentencing

order, the court erred in denying his petition.      Appellant’s Brief at 2.   He



                                         -6-
J.S23036/16


avers the court erred in denying his writ “seeking the [c]ourt to compel the

Clerk of Court . . . to provide him with a copy of his written judicial order of

sentence, as rendered by the Honorable Bernard J. Goodheart, Judge of July

24, 1979.” Id.

      The PCRA court treated Appellant’s petition for writ of mandamus as a

petition for writ of habeas corpus. PCRA Ct. Op. at 4. In Joseph v. Glunt,

96 A.3d 365 (Pa. Super. 2014), appeal denied, 101 A.3d 787 (Pa. 2014),

this Court opined:

            Initially, we note that the Pennsylvania Supreme Court,
         albeit in a per curiam opinion, has held that a claim that a
         defendant’s sentence is illegal due to the inability of the
         DOC to produce a written sentencing order related to [his]
         judgment of sentence constitutes a claim legitimately
         sounding in habeas corpus. Accordingly, we will treat [the
         appellant’s] submission as a petition for a writ of habeas
         corpus instead of a petition under the PCRA, which
         typically governs collateral claims implicating the legality
         of sentence.

         Our standard of review in this context is axiomatic:

            The ancient writ of habeas corpus is inherited from
            the common law, referred to by Sir William
            Blackstone as the most celebrated writ in the English
            law. The writ lies to secure the immediate release of
            one who has been detained unlawfully, in violation of
            due process. [T]raditionally, the writ has functioned
            only to test the legality of the petitioner’s detention.

         Under Pennsylvania statute, habeas corpus is a civil
         remedy [that] lies solely for commitments under criminal
         process. Habeas corpus is an extraordinary remedy and
         may only be invoked when other remedies in the ordinary
         course have been exhausted or are not available. Our
         standard of review of a trial court’s order denying a



                                     -7-
J.S23036/16


          petition for [a] writ of habeas corpus is limited to [an]
          abuse of discretion.

Id. at 368-69 (quotation marks and citations omitted).

      In Glunt, this Court found that even if there was “no sentencing order

in the possession of the DOC or the trial court” the fact that the criminal

docket confirmed the appellant’s sentence was sufficient. Id. at 371. The

Glunt Court discerned no abuse of discretion where

          [t]he trial court properly reviewed the record and
          discovered a valid sentencing order contained therein.
          Moreover, the trial court correctly concluded that, even in
          the absence of a written sentencing order, the DOC had
          continuing authority to detain [the appellant].

Id. at 372.

      In the instant case, the PCRA court opined: “A review of the record

confirmed that [Appellant] was properly sentenced on July 24, 1979, and

[Appellant] failed to prove how the missing documentation established that

he is being held under an illegal sentence.”   PCRA Ct. Op. at 4. We agree

no relief is due.

      Appellant’s claim that there was no sentencing order is belied by the

record.    In the case at bar, the docket reveals Judge Goodheart’s

handwritten sentencing order.       A copy of the docket is attached to

Appellant’s brief.   See Appellant’s Brief at App. 6f. We discern no abuse of

discretion by the PCRA court in denying his petition for writ of habeas

corpus. See Glunt, 96 A.3d at 371-72.




                                     -8-
J.S23036/16


     Thus, we affirm the PCRA court’s order dismissing the PCRA petition as

untimely and denying his petition for writ of habeas corpus. See Glunt, 96

A.3d at 371-72; Feliciano, 69 A.3d at 1276-77.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/22/2016




                                  -9-
