J-S35042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                             Appellee

                       v.

TODD H. CURLEY,

                             Appellant                  No. 3097 EDA 2014


               Appeal from the PCRA Order September 26, 2014
                in the Court of Common Pleas of Wayne County
               Criminal Division at No.: CP-64-CR-0000493-2001


BEFORE: MUNDY, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                  FILED JUNE 10, 2015

        Appellant, Todd H. Curley, appeals pro se from the denial of his

petition for writ of habeas corpus, which the court treated as an untimely

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

9546. We affirm.

        On January 15, 2002, the Commonwealth filed an information charging

Appellant with criminal homicide for the murder of Michael Marquez.           On

October 3, 2002, Appellant entered a plea of nolo contendere to murder of

the second degree.1         The court sentenced Appellant to life without parole,

and denied his post-sentence motion.            This Court affirmed Appellant’s
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 2502(b).
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sentence on October 21, 2003. (See Commonwealth v. Curley, 839 A.2d

1151 (Pa. Super. 2003) (unpublished memorandum)). Appellant did not file

a petition for allowance of appeal with the Pennsylvania Supreme Court.

       On December 21, 2009, Appellant filed his first pro se PCRA petition.

Appointed counsel filed an amended petition, and the court issued a Rule

907 notice of its intent to dismiss. See Pa.R.Crim.P. 907(1). On December

27, 2012, the PCRA court dismissed the petition without a hearing.               This

Court affirmed the decision of the PCRA court on June 11, 2013, and our

Supreme      Court     denied     review       on   November   19,    2013.     (See

Commonwealth v. Curley, 82 A.3d 459 (Pa. Super. 2013), appeal denied,

622 Pa. 755 (Pa. 2013)).

       On February 12, 2014, Appellant filed a pro se petition for writ of

habeas corpus, and on September 8, 2014, he filed a supplement thereto.

The court treated these requests for relief as a second PCRA petition, and

denied them as untimely on September 26, 2014.2                      Appellant timely

appealed.3

____________________________________________


2
  Our review of the record reveals that the court did not issue a Rule 907
notice before denying the petitions. However, Appellant has not raised this
issue, and therefore it is waived. See Commonwealth v. Taylor, 65 A.3d
462, 468 (Pa. Super. 2013). “Moreover, even if the issue is raised, where
the petition is untimely, it does not automatically warrant reversal.” Id.
(citation omitted).
3
  On October 24, 2014, the PCRA court ordered Appellant to file a Rule
1925(b) statement within twenty-one days. (See Order, 10/24/14, at 1);
(Footnote Continued Next Page)


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      Appellant raises two questions for our review:

      [1.] Whether the [PCRA] court abused its discretion in
      dismissing Appellant’s petition for writ of habeas corpus ad
      subjiciendum concluding allegation fits squarely within the
      purview of the PCRA where Appellant sought relief from his
      illegal confinement because the restraint of his liberty is based
      on the absence of a sentencing order containing the statute
      under Pennsylvania law that the judge received statutory
      authorization from to impose the sentence for the Pennsylvania
      Department of Corrections to detain him which is required
      pursuant to 42 Pa.C.S.[A.] Section 9764(a)(8), is not cognizable
      under the PCRA because it challenges the commitment and
      detention sounding in habeas corpus and it is not the duration or
      severity of the sentence that renders the restraint
      constitutionally invalid?

      [2.] Whether the [PCRA] court abused its discretion in
      dismissing Appellant’s supplemental petition for habeas corpus
      relief alleging entitlement to relief from his illegal confinement
      because the restraint of his liberty is based on a sentencing
      process that violated due process of law where the court
      imposed sentence after being adjudicated guilty of second
      degree murder following a plea of nolo contendre [sic] after
      being charge[d] with criminal homicide therefore sentenced for

                       _______________________
(Footnote Continued)

Pa.R.A.P. 1925(b). On December 5, 2014, the court issued a Rule 1925(a)
opinion in which it stated that Appellant had failed to file a Rule 1925(b)
statement. (See PCRA Court Opinion, 12/05/14, at 1). On December 18,
2014, Appellant filed an application to enter his Rule 1925(b) statement
nunc pro tunc on the basis that he had not received the court’s earlier order.
(See Application for Nunc Pro Tunc Relief, 12/18/14, at 1). This Court
issued a per curiam order on January 14, 2015 in which we directed the
PCRA court to decide Appellant’s application. (See Per Curiam Order,
1/14/15, at 1).

       Thereafter, the PCRA court granted Appellant’s request for relief and
ordered him to file a Rule 1925(b) statement within twenty-one days. (See
Order, 1/22/15, at 1); Pa.R.A.P. 1925(b). On February 3, 2015, Appellant
filed a timely statement pursuant to the court’s order, and the court filed an
opinion on March 3, 2015. See Pa.R.A.P. 1925.



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      an offense for which he never received notice he was charged
      with?

(Appellant’s Brief, at 3 (most capitalization omitted)).

      We first consider whether the court properly treated Appellant’s

petition for writ of habeas corpus, and supplement thereto, as a PCRA

petition.   It is well-established that “both the PCRA and the state habeas

corpus statute contemplate that the PCRA subsumes the writ of habeas

corpus in circumstances where the PCRA provides a remedy for the claim.”

Commonwealth v. Hackett, 956 A.2d 978, 985 (Pa. 2008), cert. denied,

556 U.S. 1285 (2009) (citations omitted); see also 42 Pa.C.S.A. § 9542; 42

Pa.C.S.A. § 6503(b) (“[T]he writ of habeas corpus shall not be available if a

remedy may be had by post-conviction hearing proceedings authorized by

law.”). As explained by this Court:

            Simply stated, the PCRA subsumes the remedy of habeas
      corpus with respect to remedies offered under the PCRA. . . .
      The writ continues to exist, but is available only in cases in which
      no remedy is provided under the PCRA.              The fact that a
      particular petitioner is precluded by the . . . timing requirements
      of the PCRA from presenting claims that would otherwise have
      been cognizable does not entitle him to habeas corpus relief.

             Habeas corpus is an extraordinary remedy which may be
      invoked only when remedies in the ordinary course have
      been exhausted or are not available. A judgment rendered
      in the ordinary course is beyond the reach of habeas corpus and
      cannot be put aside lightly. The presumption of regularity
      becomes      stronger    the   longer   the conviction   stands.
      Consequently, a writ of habeas corpus generally is not available
      to review a conviction which has been affirmed on appeal.
      Furthermore, habeas corpus may not be used to litigate claims
      of ineffective assistance of counsel[.]


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Commonwealth v. Johnson, 732 A.2d 639, 644 (Pa. Super. 1999)

(citations and quotation marks omitted) (emphasis added); see also

Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007), appeal

denied, 944 A.2d 756 (Pa. 2008) (“[T]he PCRA provides the sole means for

obtaining collateral review, and . . . any petition filed after the judgment of

sentence becomes final will be treated as a PCRA petition.”) (citation

omitted).

      Here, the court sentenced Appellant on October 3, 2002, in ordinary

course, after his nolo contendere plea to second degree murder, and this

Court affirmed the judgment of sentence on October 21, 2003. Accordingly,

Appellant’s attempt to challenge the trial court’s judgment of sentence in a

writ of habeas corpus nearly twelve years later is unavailing. See Johnson,

supra at 644.

      Further, we note that, to the extent that Appellant’s writ raised issues

not cognizable by the PCRA, we conclude that these issues are waived where

they could have been pursued in his direct appeal. See id. Specifically, in

Appellant’s writ, he alleges that the court erred in imposing his sentence on

the record, but not in a separate sentencing order; and that his conviction of

second degree murder was illegal where he did not receive notice of the

charge. (See Writ of Habeas Corpus, 2/12/14, at 6 ¶ 31; Supplemental Writ

of Habeas Corpus, 9/08/14, at 2-3 ¶¶ 13-14).          These are claims that




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Appellant could have invoked in his direct appeal and, therefore, habeas

corpus relief is unavailable. See Johnson, supra at 644.

       Moreover, Appellant’s writ asserted ineffectiveness of counsel as an

alternative theory of relief, a claim cognizable under the PCRA.              (See

Petition for Writ of Habeas Corpus, 2/12/14, at 4 ¶ 20); see also 42

Pa.C.S.A. § 9543(a)(2)(ii).       Therefore, a writ of habeas corpus was

unavailable for this allegation. Hackett, supra at 985; Johnson, supra at

644.

       Accordingly, we conclude that the court did not err in addressing

Appellant’s habeas corpus petition under the PCRA. See Fowler, supra at

591; Johnson, supra at 644.

       We consider next whether the court erred when it found that

Appellant’s petition was untimely, and that he did not properly plead an

exception to the PCRA time-bar.        (See Order, 9/26/14, at 1 n.1).         We

conclude that this finding was not in error.

       Our standard of review for an order denying PCRA relief is well-settled:

             This Court’s standard of review regarding a PCRA court’s
       order is whether the determination of the PCRA court is
       supported by the evidence of record and is free of legal error.
       Great deference is granted to the findings of the PCRA court, and
       these findings will not be disturbed unless they have no support
       in the certified record. Moreover, a PCRA court may decline to
       hold a hearing on the petition if the PCRA court determines that
       a petitioner’s claim is patently frivolous and is without a trace of
       support in either the record or from other evidence.




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Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citations

and quotation marks omitted). However, “if a PCRA [p]etition is untimely, a

trial court has no jurisdiction to entertain the petition.” Commonwealth v.

Hutchins, 760 A.2d 50, 53 (Pa. Super. 2000) (citations omitted).

        Here, Appellant filed his petition on February 12, 2014.     The PCRA

provides that “[a]ny petition under this subchapter, including a second or

subsequent petition, shall be filed within one year of the date the judgment

becomes final . . . .” 42 Pa.C.S.A. § 9545(b)(1). Appellant’s judgment of

sentence became final on November 20, 2003, thirty days after this Court

affirmed the judgment of sentence, and the time for filing an appeal with our

Supreme Court expired. See 42 Pa.C.S.A. § 9545(b)(3). Therefore, he had

one year, until November 22, 2004,4 to file a timely PCRA petition. Because

Appellant did not file his current petition until February 2014, nearly ten

years later, the petition is facially untimely. Thus, he must plead and prove

that he falls under one of the exceptions at Section 9545(b) of the PCRA.

See 42 Pa.C.S.A. § 9545(b).

        Section 9545 provides that the court can still consider an untimely

petition where the petitioner successfully 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;
____________________________________________


4
    November 20, 2004 fell on a Saturday. See 1 Pa.C.S.A. § 1908.



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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.

Id. at § 9545(b)(1)(i)-(iii).   Further, a petitioner who wishes to invoke any

of the above exceptions must file the petition “within [sixty] days of the date

the claim could have been presented.”           Id. at § 9545(b)(2).       The

Pennsylvania Supreme Court has repeatedly stated that it is an appellant’s

burden to plead and prove that one of the above-enumerated exceptions

applies. See, e.g., Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1268

(Pa. 2008), cert. denied, 555 U.S. 916 (2008). Therefore, an appellant must

acknowledge that his PCRA petition is untimely, and demonstrate that one or

more of the statutory exceptions applies.          See Commonwealth v.

Wharton, 886 A.2d 1120, 1125-26 (Pa. 2005).

      Here, Appellant does not acknowledge that his PCRA petition is facially

untimely, or attempt to demonstrate the applicability of any of the time-bar

exceptions.    (See Appellant’s Brief, at 7-11).       Additionally, the facts

underlying his claims would have been available at the time of sentencing in




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2002.5 Therefore, his 2014 petition was not filed “within [sixty] days of the

date the claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

       Accordingly, the PCRA court did not err when it denied Appellant’s

petition as untimely with no exception proven. See Carter, supra at 682.

Appellant’s issues do not merit relief.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/10/2015




____________________________________________


5
  Appellant’s writ alleged that he did not become aware of the fact that there
was no written sentencing order until January 15, 2014, and that, therefore,
his petition was timely. (See Petition for Writ of Habeas Corpus, 2/12/14, at
2 ¶ 7; 4 ¶ 20). However, even if not abandoned in his brief, this argument
would not merit relief. Facts contained in Appellant’s record are not new and
do not satisfy an exception to the timeliness requirements of the PCRA. See
Commonwealth v. Heredia, 97 A.3d 392, 395 n.6 (Pa. Super. 2014),
appeal denied, 104 A.3d 524 (Pa. 2014).



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