J-S96017-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                   v.

GIRARD WEST

                          Appellant                 No. 430 WDA 2016


               Appeal from the PCRA Order February 26, 2016
             In the Court of Common Pleas of Allegheny County
                         Criminal Division at No(s):
                          CP-02-CR-0000527-2001
                          CP-02-CR-0000528-2001
                          CP-02-CR-0000529-2001
                          CP-02-CR-0000531-2001
                          CP-02-CR-0005223-2001



BEFORE: BENDER, P.J.E., BOWES, J., AND SOLANO, J.

MEMORANDUM BY BOWES, J.:                          FILED JANUARY 9, 2017

      Girard West appeals from the February 26, 2016 order denying him

PCRA relief. We affirm.

      Appellant was charged in these actions with seventeen counts of

burglary and one count each of attempted theft and possession of an

instrument of crime.      Appellant was entering properties, including homes

and apartment buildings, throughout Pittsburgh and removing stained glass

windows and other items such as mantels, brass, and fixtures. After he was

identified in connection with one crime and his fingerprints were found at the
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scene of another, Appellant confessed to the criminal enterprise and

indicated that he committed the burglaries to support a drug habit. On June

21, 2001, he entered a guilty plea to seventeen counts of burglary and was

sentenced   on   September    25,   2011,       to   sixteen   to   thirty-two   years

imprisonment.    After his post-sentence motion to withdraw his guilty plea

was denied, Appellant appealed, and, on September 16, 2003, we affirmed.

Commonwealth       v.   West,   835      A.2d    838    (Pa.   2003)    (unpublished

memorandum).

      Appellant filed a PCRA petition on October 9, 2003.               Counsel was

appointed, and filed an amended petition. After the PCRA court conducted a

hearing, it denied PCRA relief on May 12, 2004, and we affirmed.

Commonwealth v. West, 881 A.2d 892 (Pa.Super. 2005) (unpublished

memorandum). Appellant filed a second petition on June 15, 2006, which

was   denied.      We   affirmed    by     order      dated    August    13,     2007.

Commonwealth v. West, 935 A.2d 26 (Pa.Super. 2007) (unpublished

memorandum).      We noted therein that, since Appellant had not filed a

petition for allowance of appeal, his judgment of sentence became final for

purposes of the PCRA on October 16, 2003, and he had until October 16,

2004, to file a timely PCRA petition. We concluded that Appellant’s June 15,

2006 petition was untimely.

      On April 19, 2015, Appellant filed another petition, which he styled as

a motion for habeas corpus relief and wherein he sought to vacate his

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sentence based upon its purported illegality.      That motion was denied on

February 26, 2016, and this appeal followed.           Appellant claims are as

follows:

       I. Was petitioner unconstitutionally den[ie]d by a state court, the
       retroactive rel[ie]f and application of U.S. Supreme Court
       decisions, "United States v. Alleyne, Greer, Johnson, Shavers,
       Booker; denied the application of Marbury v. Madison, Testa v.
       Katt; the Harper rule pursuant to Article VI. Clause 2. "the
       Supremacy Clause, "nunc pro tunc?

       II. Whether the state court by its refusal to apply the decisions
       Alleyne -Apprendi, via the supremacy clause to the appellant's
       case nunc pro tunc, was tantamount to a state court committing
       a unconstitutional structural defect?

       III. Whether Appellant's sentence is illegal?

Appellant’s brief at 3.1

       Initially, we note that Appellant’s so-called habeas corpus petition

must be treated as a PCRA petition.

       It is well-settled that the PCRA is intended to be the sole means
       of achieving post-conviction relief. Unless the PCRA could not
       provide for a potential remedy, the PCRA statute subsumes the
____________________________________________


1
   These averments have been construed by the PCRA court and the
Commonwealth as raising a challenge to Appellant’s sentence based upon
Alleyne v. United States, 133 S.Ct. 2151 (2013). In that decision, the
Court held that any fact, other than a prior conviction, that invokes
application of a mandatory minimum sentence must be submitted to a jury
and proven beyond a reasonable doubt. However, the sentencing order
entered herein indicates that no mandatory sentence was imposed.
Furthermore, our Supreme Court has ruled in Commonwealth v.
Washington, 142 A.3d 810, 811 (Pa. 2016), that Alleyne does not apply
retroactively “to attacks upon mandatory minimum sentences advanced on
collateral review.”



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     writ of habeas corpus. Issues 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, 465–66 (Pa.Super. 2013). Claims

pertaining to the legality of a sentence are cognizable under the PCRA,

Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999), and we regard the

motion at issue as a PCRA petition.

     This Court reviews the “denial of PCRA relief to determine whether the

findings of the PCRA court are supported by the record and free of legal

error.” Commonwealth v. Roane, 142 A.3d 79, 86 (Pa. Super. 2016)

(quoting Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015)). The

present petition was dismissed as untimely.

     All PCRA petitions must be filed within one year of the date a

defendant’s judgment becomes final unless an exception to the one-year

time restriction applies. 42 Pa.C.S. § 9545(b)(1).   If a PCRA petition is

untimely, “neither this Court nor the trial court has jurisdiction over the

petition.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014).

(citation omitted); see also Commonwealth v. Chester, 895 A.2d 520,

522 (Pa. 2006).

     We have previously noted that Appellant’s judgment of sentence

became final on October 16, 2003, and that he had until October 16, 2004,

to file a timely PCRA petition under § 9545.   The present April 19, 2015

petition is thus untimely. We further observe that, even though cognizable

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under the PCRA, illegality of sentencing issues must be brought in a timely

manner.    Fahy, supra; Commonwealth v. Jackson, 30 A.3d 516

(Pa.Super. 2011). Appellant has not invoked any exception to the one-year

time bar. Hence, we affirm.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/9/2017




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