J-S44026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                          Appellee

                     v.

CURRY VENDETTI

                          Appellant                 No. 9 WDA 2015


         Appeal from the PCRA Order entered November 21, 2014
              In the Court of Common Pleas of Erie County
            Criminal Division at No: CP-25-CR-0000037-1990


BEFORE: LAZARUS, STABILE, and JENKINS, JJ.

MEMORANDUM BY STABILE, J.:                     FILED OCTOBER 15, 2015

     Appellant, Curry Vendetti, appeals from the November 21, 2014 order

of the Court of Common Pleas of Erie County (PCRA court) denying him relief

under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Upon

review, we affirm.

     The PCRA court summarized the relevant background as follows:

     On May 22, 1990, [Appellant] was found guilty by a jury of first-
     degree murder and possessing instruments of crime. [Appellant]
     was sentenced on June 29, 1990 to a term of life imprisonment.
     [Appellant] filed a direct appeal and on January 21, 1992, the
     Superior Court affirmed his judgment of sentence. On February
     13, 1992, [Appellant] filed a Petition for Allowance of Appeal
     which was denied by the Pennsylvania Supreme Court on June 9,
     1992.

     On October 14, 1992, [Appellant] filed his first pro se PCRA
     petition. After appointment of PCRA counsel, the PCRA court
     denied the PCRA petition and granted PCRA counsel’s request for
     withdrawal. [Appellant] filed an appeal which was dismissed by
     the Superior Court on July 29, 1993.
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        On or about August 24, 1994, [Appellant] filed a second pro se
        PCRA petition which was ultimately denied on January 5, 1995.
        [Appellant] appealed and on October 30, 1995, the Superior
        Court affirmed the PCRA Court’s denial of [Appellant’s] second
        PCRA petition.   [Appellant] subsequently filed a Petition for
        Allowance of Appeal which was denied by the Supreme Court on
        March 1, 1996.

Notice of Intent to Dismiss without a Hearing Pursuant to Pa.R.Crim.P. 907,

10/14/14, at 1-2. Appellant then filed a petition for a writ of habeas corpus

on September 23, 2014. The court treated Appellant’s habeas petition as a

PCRA petition and dismissed the petition as untimely on November 21, 2014.

        On appeal, Appellant raises two claims.        First, Appellant claims that

the PCRA court erred in treating his writ of habeas corpus as a PCRA petition

because he is unable to get post-conviction relief under the PCRA due to its

time-bar limitation.    Appellant’s Brief, 3-6.      Second, Appellant claims that

the PCRA is unconstitutional because it unlawfully incorporates habeas

corpus and denies him his right to an appeal. Appellant’s Brief, 9-10. We

agree with the PCRA court and conclude that Appellant is not entitled to

relief on his claims.

        “Our 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. The PCRA court’s findings will not be disturbed unless

there    is   no   support   for   the    findings    in   the   certified   record.”

Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)

(quotation marks and citations omitted).

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      Regarding Appellant’s first claim, the PCRA court did not err in treating

Appellant’s habeas petition 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
      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. Phrased differently, a
      defendant cannot escape the PCRA time-bar by titling his
      petition or motion as a writ of habeas corpus.

Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013)

(quotation marks, citations, and footnote omitted). Appellant claims in his

petition that his sentence was “unlawful” and “stems from the trial court’s

failure to properly instruct the factfinder as to the charge of involuntary

manslaughter.” Appellant’s Brief at 1, n.1. We construe Appellant’s claim as

raising ineffective assistance of trial counsel for failing to request a charge of

involuntary manslaughter. This matter is both within the scope of and could

be remedied by the PCRA.        See 42 Pa.C.S.A. § 9543(a)(2)(ii); see also

Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa. 2000) (“This

Court has stated previously that a claim for ineffective assistance of counsel

does not save an otherwise untimely petition for review on the merits.”).

Therefore, Appellant’s filing is properly treated as a PCRA petition.        See

Commonwealth v. Deaner, 779 A.2d 578, 580 (Pa. Super. 2001) (noting a

collateral petition that raises an issue that the PCRA statute could remedy is

to be considered a PCRA petition).




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      Because Appellant’s filing is a PCRA petition, we must first determine

whether Appellant’s petition was timely filed before we can address the

merits of his issues.

      It is well settled that [a]ny and all PCRA petitions must be filed
      within one year of the date on which the petitioner’s judgment
      became final, unless one of three statutory exceptions applies.
      A judgment becomes final 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 the review.           42 Pa.C.S.A.
      § 9545(b)(3).

Garcia, 23 A.3d at 1061-62 (footnote and quotation marks omitted).

      Appellant’s judgment of sentence became final on September 9, 1992

when his time for seeking certiorari from the United States Supreme Court

expired. Appellant had one year from this day to file a timely PCRA petition.

Appellant filed the instant PCRA petition, his third, approximately 21 years

after his time to file for collateral relief had expired.   Appellant does not

allege any facts to establish any of the three timeliness exceptions set forth

in 42 Pa.C.S.A. § 9545(b). Accordingly, Appellant’s petition is untimely.

      Given our conclusion that Appellant’s PCRA petition is untimely, we do

not need to address Appellant’s second claim.          “The PCRA’s timeliness

requirements are jurisdictional in nature and must be strictly construed;

courts may not address the merits of the issues raised in a petition if it is not

timely filed.”   Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1267-68

(Pa. 2008).

      Order Affirmed.

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J-S44026-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2015




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