J-S46028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                           Appellee

                      v.

THOMAS DUANE TAYLOR,

                           Appellant                 No. 3450 EDA 2014


               Appeal from the PCRA Order of October 27, 2014
                In the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0004477-2004


BEFORE: MUNDY, OLSON and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                           FILED AUGUST 25, 2015

      Appellant, Thomas D. Taylor, appeals pro se from the order entered on

October 27, 2014, dismissing his writ of habeas corpus as untimely under

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

affirm.

      A prior panel of this Court summarized the facts of this case as

follows:

           A jury found Appellant guilty of attempted homicide,
           aggravated assault, and persons not to possess a firearm,
           after he shot his girlfriend in the head with a .22 caliber
           rifle. The trial court sentenced Appellant to eighteen to
           thirty-six years[’] imprisonment on September 26, 2005, on
           the attempted homicide charge. The court also imposed a
           concurrent sentence of one and one-half to three years for
           the persons not to possess a firearm conviction. Appellant
           filed a timely direct appeal and a panel of this Court
           affirmed. Commonwealth v. Taylor, 919 A.2d 977 (Pa.
           Super. 2007) (unpublished memorandum). Our Supreme
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        Court denied Appellant's petition for allowance of appeal.
        Commonwealth v. Taylor, 931 A.2d 658 (Pa. 2007).

        While Appellant's direct appeal was pending, Appellant filed
        a writ of habeas corpus. The court treated the filing as a
        PCRA petition and appointed counsel. Counsel filed an
        amended petition, the court held a hearing and dismissed
        the petition. However, after the court discovered that
        Appellant's direct appeal was not complete, it promptly
        rescinded its order denying Appellant's PCRA petition. See
        Commonwealth v. Leslie, 757 A.2d 984 (Pa. Super.
        2000). Appellant, nonetheless, appealed. This Court
        affirmed the order rescinding the dismissal of Appellant's
        premature PCRA petition without prejudice to Appellant's
        ability to file a timely petition. Commonwealth v. Taylor,
        959     A.2d     469    (Pa.    Super. 2008)  (unpublished
        memorandum).

        After the completion of Appellant's direct appeal, Appellant
        filed another pro se writ of habeas corpus. The court again
        treated the filing as a PCRA petition and appointed counsel,
        who submitted an amended petition. Following a hearing
        where no evidence was presented, the court dismissed the
        petition. Appellant appealed, and this Court affirmed.
        Commonwealth v. Taylor, 990 A.2d 55 (Pa. Super. 2009)
        (unpublished memorandum). Thereafter, Appellant filed a
        series of post-conviction motions, which the court denied.
        No appeals were pursued on those filings. Instead, on
        December 7, 2011, Appellant filed [another] writ of habeas
        corpus. The court treated the habeas corpus motion as a
        motion to modify sentence under Pa.R.Crim.P. 720 rather
        than a PCRA petition. On December 14, 2011, the court
        dismissed the habeas corpus motion as an untimely post-
        sentence motion.

Commonwealth v. Taylor, 65 A.3d 462, 464 (Pa. Super. 2013). Viewing

Appellant’s December 7, 2011 habeas corpus motion as a petition for

collateral relief under the PCRA, this Court affirmed the dismissal of

Appellant’s filing as untimely. Id.




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       Most recently, on October 8, 2014, Appellant filed a pro se writ of

habeas corpus, alleging that his sentence was illegal because of errors

contained in his presentence investigation (PSI) report that the trial court, in

turn, erroneously relied upon in imposing his sentence.         The trial court

treated the filing as a PCRA petition and denied the petition as untimely after

determining Appellant failed to invoke an exception to the one-year

jurisdictional time-bar imposed under the PCRA. Moreover, the PCRA court

observed that Appellant previously presented this precise claim in his last

PCRA petition and, thus, it “would appear that [Appellant] is again arguing

that the information contained in the presentence report utilized during

sentencing was incorrect.”          Order, 10/9/14, at 4.   This timely appeal

ensued.1

       On appeal, Appellant presents the following issues, pro se, for our

review:

____________________________________________


1
   The trial court entered the order at issue on October 27, 2014. Appellant
was required to file a notice of appeal by Monday, December 1, 2014,
because the court was closed for Thanksgiving on Thursday, November 27,
2014 and Friday, November 28, 2014. See Pa.R.A.P. 903(a) (notice of
appeal must be filed within 30 days after the entry of the order from which
the appeal is taken); 1 Pa.C.S.A. § 1908 (whenever the last day of the
appeal falls on a weekend or legal holiday, such day shall be omitted from
the computation of time). Appellant dated his notice of appeal November
23, 2014. However, the notice of appeal bears the date stamp from the trial
court clerk of December 2, 2014. Under the prison mailbox rule, “appeals
[are] deemed filed on the date that the prisoner deposits the appeal with
prison authorities, or places it in a prison mailbox.” Commonwealth v.
Little, 716 A.2d 1287, 1288 (Pa. Super. 1998). Thus, we deem it timely.



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        1) Whether or not the sentencing court in Appellant[’]s case
           used an erroneous/unconstitutional PSI-report as its sole
           means by which it administered its sentence, whereby
           invalidating the entire sentencing process, in violation of
           both the state and federal constitutions?

        2) Does the PCRA statute provide for a remedy for
           challenges to the procedure employed to administer a
           criminal sentence, when said issue is not only a matter of
           first impression in the appell[ate] courts, but also not
           contained in any statutory language within the
           framework of the state PCRA?

Appellant’s Brief at 3 (unpaginated).

      Because Appellant’s second claim is addressed to whether his claims

come within the scope of the PCRA, an inquiry that has a direct implication

on whether the PCRA’s jurisdictional timeliness requirements apply, we

examine Appellant’s second issue first.       Appellant, here, claims that the

PCRA does not provide a basis for relief for his claim that the trial court

imposed an illegal sentence based upon an erroneous PSI report; thus,

Appellant asserts he properly filed a petition for habeas corpus. Id. at 9-10.

More specifically, Appellant claims that the PSI report “added an extra

charge of 18 Pa.C.S.A. [§] 2502 attempt[ed] murder with serious bodily

injury, which caused him to be illegally sentenced 16 years beyond the

statutory maximum.” Id. at 6, citing 18 Pa.C.S.A. § 1102(c).

      “Unless the PCRA could not provide for a potential remedy, the PCRA

statute subsumes the writ of habeas corpus.”      Commonwealth v. Taylor,

65 A.3d 462, 465-466 (Pa. Super. 2013).            This Court has previously

determined:



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        The PCRA provides the sole means for obtaining collateral
        review of a judgment of sentence. Commonwealth v.
        Fowler, 930 A.2d 586, 591 (Pa. Super. 2007), appeal
        denied, 596 Pa. 715, 944 A.2d 756 (2008); 42 Pa.C.S.A.
        § 9542. A court may entertain a challenge to the legality of
        the sentence so long as the court has jurisdiction to hear
        the claim. In the PCRA context, jurisdiction is tied to the
        filing of a timely PCRA petition. Id. at 592. Although legality
        of sentence is always subject to review within the PCRA,
        claims must still first satisfy the PCRA's time limits or one of
        the exceptions thereto. Fowler, supra. Pennsylvania law
        makes clear no court has jurisdiction to hear an untimely
        PCRA petition. Commonwealth v. Robinson, 837 A.2d
        1157 (Pa. 2003). Thus, a collateral claim regarding the
        legality of a sentence can be lost for failure to raise it in a
        timely manner under the PCRA. Commonwealth v.
        Wojtaszek, 951 A.2d 1169, 1173 n.9 (Pa. Super. 2008).

Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013)

(quotations, brackets, and parentheticals omitted).

      “An illegal sentence is one that exceeds the statutory limits.”

Commonwealth v. Bradley, 834 A.2d 1127, 1131 (Pa. 2003). A maximum

sentence for attempted murder is 20 years of imprisonment in the absence

of notice and a jury finding that the defendant inflicted serious bodily injury.

Commonwealth v. Johnson, 910 A.2d 60, 66-68 (Pa. Super. 2006).

Here, Appellant claims that the jury did not find him guilty of attempted

murder – serious bodily injury and that the trial court, therefore, sentenced

him above the statutory maximum. Thus, Appellant challenges the legality

of his sentence.    Illegal sentencing claims are “always subject to review

within the PCRA.”    Infante, 63 A.3d at 365.      Accordingly, the trial court

properly treated Appellant’s habeas corpus petition as a PCRA petition.




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      Since the PCRA court was required to treat Appellant’s habeas corpus

filing as a PCRA petition, it follows that the PCRA court needed jurisdiction to

reach the merits of Appellant’s claim. This Court has previously determined:

        The filing mandates of the PCRA are jurisdictional in nature
        and are strictly construed. The question of whether a
        petition is timely raises a question of law. Where the
        petitioner raises questions of law, our standard of review is
        de novo and our scope of review plenary. An untimely
        petition renders this Court without jurisdiction to afford
        relief. 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.

Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations

omitted).    A court may not disregard the time limits of the PCRA to reach

the merits of a petition.   Commonwealth v. Geer, 936 A.2d 1075, 1077

(Pa. Super. 2007).

      A judgment of sentence becomes final for PCRA purposes “at the

conclusion of direct review, including discretionary review in the Supreme

Court of the United States and the Supreme Court of Pennsylvania, or at the

expiration of time for seeking review.” 42 Pa.C.S.A. § 9545(b)(3). Herein,

Appellant’s judgment of sentence became final on November 25, 2007.

Hence, Appellant’s petition filed on October 8, 2014 is patently untimely.

      A petition still may be considered if it fits within one of three

exceptions to the PCRA's timeliness requirements as set forth at 42

Pa.C.S.A. § 9545(b)(1). However, Appellant has steadfastly maintained that

his claim fails outside the parameters of the PCRA and he specifically


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disavows any exception to the PCRA’s timing requirements applies.         See

Appellant’s Brief at 10. Since the Appellant’s petition was untimely and no

exception applies, the PCRA court lacked jurisdiction to entertain Appellant’s

claims.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2015




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