J-S35024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    GEORGE M. DURHAM                           :
                                               :
                      Appellant                :   No. 1705 WDA 2016

               Appeal from the PCRA Order September 22, 2016
                 In the Court of Common Pleas of Beaver County
              Criminal Division at No(s): CP-04-CR-0001860-2007


BEFORE:      LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                                FILED AUGUST 3, 2017

        Appellant, George M. Durham, pro se appeals from the order entered

September 22, 2016, denying as untimely his serial petition for collateral

relief filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546. We affirm.

        In March 2008, Appellant was found guilty by a jury of first-degree

murder after stabbing his then-girlfriend, Mary Ann Brown, nineteen times.1

In April 2008, Appellant was sentenced to life imprisonment. Appellant pro

se filed a litany of pleadings, including a direct appeal, while represented by

counsel.     These filings resulted in an exceedingly protracted procedural

history, outlined in great detail by this Court in its memorandum affirming


____________________________________________


1
    18 Pa.C.S. § 2502(a).


*
    Former Justice specially assigned to the Superior Court.
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his judgment of sentence.      See Commonwealth v. Durham, 998 A.2d

1019 (Pa. Super. 2010) (unpublished memorandum).              Appellant did not

appeal to the Supreme Court of Pennsylvania. Accordingly, his judgment of

sentence became final on May 21, 2010.

      In September 2010, Appellant pro se filed his first PCRA petition, and

court-appointed counsel filed an amended petition on Appellant’s behalf.

Following a hearing, the PCRA court denied Appellant’s petition as meritless

in January 2013.       This Court affirmed that decision in May 2014.

Commonwealth v. Durham, 104 A.3d 43 (Pa. Super. 2014) (unpublished

memorandum), appeal denied, 102 A.3d 34 (Pa. 2015).

      In August 2016, Appellant pro se filed the instant petition, styled as a

petition for habeas corpus relief.       According to Appellant, a lack of

jurisdiction rendered his sentence illegal. The court treated Appellant’s filing

as a PCRA and issued a notice of intent to dismiss pursuant to Pa.R.Crim.P.

907, to which Appellant timely objected.      In September 2016, the PCRA

court dismissed Appellant’s petition as untimely. Appellant timely appealed

and filed a court-ordered 1925(b) statement.        The PCRA court issued a

responsive opinion.

      Appellant raises the following issues for our review:

      1. Did the lower court err and [abuse] its discretion by holding
         that [Appellant’s] writ of habeas corpus ad subjuiciendum
         was a second untimely PCRA petition when the issues raised
         in said writ do not pertain to [Appellant’s] innocence, guilt, or
         sentence?



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      2. Did the lower court err and abuse its discretion in holding
         that [Appellant] was not entitled to state habeas corpus
         [relief] under 42 Pa.C.S.A. § 6501[] et seq., where no other
         post[-]conviction proceeding is available to same Pa.C.S.A §
         6501[] and moreover, where Article 1 Section 14 of the
         Pennsylvania Constitution 1986 [] guarantees such right not
         to be suspended or deprived/hampered as to amount to
         practical deprivation?

      3. Did the lower court err and abuse its discretion by holding
         that [Appellant] was not entitled to an evidentiary hearing on
         his writ of habeas corpus ad subjiciendum?

Appellant’s Brief at 3 (unnecessary capitalization omitted) (some formatting

applied).

      Appellant’s mislabeled petition should be considered under the PCRA.

The instant petition asserts that the court was without jurisdiction to impose

his sentence of life imprisonment and essentially claims that Appellant’s

sentence is illegal.   Appellant’s Brief at 8-28.       Therefore, his claim is

subsumed into the PCRA. 42 Pa.C.S. § 9543(a)(2)(viii) (petitioner eligible

for relief if sentence resulted from a proceeding in a tribunal without

jurisdiction). As this Court has previously observed:

      Under the plain words of the statute, if the underlying
      substantive claim is one that could potentially be remedied under
      the PCRA, that claim is exclusive to the PCRA. It is only where
      the PCRA does not encompass a claim that other collateral
      procedures are available.

Commonwealth v. Pagan, 864 A.2d 1231, 1233 (Pa. Super. 2004)

(internal citations omitted); see also 42 Pa.C.S. § 6503(b).       A petitioner

cannot escape the timeliness requirements of the PCRA by mislabeling his

petition.   See Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super.

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2013); Commonwealth v. Mercado, 826 A.2d 897, 899 (Pa. Super. 2003),

appeal denied, 832 A.2d 436 (Pa. 2003) (stating petition for habeas corpus

relief must first satisfy jurisdictional PCRA timeliness requirements). Here,

Appellant’s underlying substantive claim concerns the legality of his

sentence, which is cognizable under the PCRA. See, e.g., Commonwealth

v. Voss, 838 A.2d 795 (Pa. Super. 2003).

      This Court’s standard of review regarding an order denying a petition

under the PCRA is whether the determination of the PCRA court is supported

by the evidence of record and is free of legal error. See Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007).          We afford the court’s factual

findings deference unless there is no support for them in the certified record.

Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa. Super. 2012) (citing

Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010)).

      As an additional prefatory matter, we address the timeliness of

Appellant’s petition, as it implicates our jurisdiction and may not be altered

or disregarded in order to address the merits of his claim.               See

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the

PCRA, any petition for relief, including second and subsequent petitions,

must be filed within one year of the date on which the judgment of sentence

becomes final. Id. There are three statutory exceptions:

      (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;

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       (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).         Any petition attempting to invoke these

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

been presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v.

Gamboa-Taylor, 753 A.2d 780, 783 (Pa. 2000).

       Appellant’s petition is untimely.2 Accordingly, Appellant must establish

jurisdiction by pleading and proving an exception to the timeliness

requirement. See Bennett, 930 A.2d at 1267. However, Appellant neither

pleads nor proves an exception to the time bar.

       Consequently, the PCRA court was without jurisdiction to review the

merits of Appellant’s claims and properly dismissed his petition.            See

Ragan, 932 A.2d at 1170.

       Order affirmed.
____________________________________________


2
  Appellant’s petition is patently untimely. Appellant’s judgment of sentence
became final on May 21, 2010, thirty days after his opportunity to file a
direct appeal expired.      See 42 Pa.C.S. § 9545(b)(3) (a judgment of
sentence becomes final at the conclusion of direct review or the expiration of
the time for seeking the review); Pa.R.A.P. 1113(a). Appellant’s current
petition, filed August 25, 2016, was filed over six years late. See Bennett,
930 A.2d at 1267.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/3/2017




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