J-S33042-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHN A. KEYS                               :
                                               :
                       Appellant               :   No. 3108 EDA 2019

             Appeal from the PCRA Order Entered October 8, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-1000371-2005


BEFORE:      DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                         FILED AUGUST 14, 2020

        Appellant, John A. Keys, appeals from the order entered in the Court of

Common Pleas of Philadelphia County dismissing his petition for habeas corpus

relief as an untimely serial petition filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546, without a hearing. We affirm.

        On April 27, 2007, a jury found Appellant guilty of robbery and

possessing an instrument of crime. Pursuant to the “third strike” mandatory

minimum provision of 42 Pa.C.S. § 9714,1 the trial court sentenced him to 25

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   The statute reads:

        Where the person had at the time of the commission of the current
        offense previously been convicted of two or more crimes of
        violence arising from separate criminal transactions, the person
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to 50 years’ incarceration for the robbery conviction and a concurrent term of

probation for the remaining charge. This Court affirmed judgment of sentence

on April 22, 2009, see Commonwealth v. Keys, 974 A.2d 1185 (Pa. Super.

2009) (unpublished memorandum), and the Supreme Court of Pennsylvania

denied Appellant’s petition for allowance of appeal on October 20, 2009.

       Appellant filed his first PCRA petition on January 22, 2010, and

appointed counsel filed a petition to withdraw pursuant to Commonwealth

v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550

A.2d 213 (Pa. Super. 1988) (en banc). On June 28, 2011, the PCRA court

dismissed Appellant’s petition and permitted counsel to withdraw. On January

24, 2012, this Court dismissed Appellant’s pro se appeal for his failure to file

a brief.

       On April 3, 2014, Appellant filed a “habeas corpus” petition, claiming the

trial court erred in calculating his credit for time served. The court treated

this filing as his second PCRA petition. Specifically, the PCRA court determined

Appellant’s claim was cognizable under the PCRA but unreviewable on the

merits because the petition was untimely and Appellant failed to establish any

time-bar exception. Appellant also raised a claim for habeas relief, based on

his assertion that the Department of Corrections lacked the legal authority for

____________________________________________


       shall be sentenced to a minimum sentence of at least 25 years of
       total confinement ....

42 Pa.C.S.A. § 9714(a)(2).


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his continued detention due to the lack of a written sentencing order. This

claim, the PCRA court determined, was meritless because the original

sentencing order is in the certified record and the sentence was accurately

reflected on the docket by the Clerk of the Court of Common Pleas. On appeal,

we affirmed on the basis of the PCRA court’s opinion. Commonwealth v.

Keys, No. 3587 EDA 2016, 2017 WL 6015781, at *1 (Pa. Super. Ct. Dec. 5,

2017).

      Appellant thereafter filed pro se the present petition, on January 5,

2018, as a habeas petition, and filed an amended petition on February 20,

2018. Therein, he raised two claims, one charging trial counsel with rendering

ineffective assistance of counsel and the other asserting that the Three Strikes

legislation pursuant to 42 Pa.C.S.A. § 9714, under which he was sentenced,

was unconstitutionally vague. The lower court deemed Appellant’s petition as

his third PCRA petition and issued its notice of intent to dismiss pursuant to

Pa.R.Crim.P. 907. Appellant filed a response to the court’s notice, but the

court dismissed the petition as untimely on October 8, 2019.        This timely

appeal followed.

      Appellant raises two issues for our consideration:

      1. [Did] the trial court abuse[] its discretion in dismissing
         Appellant’s Petition for Habeas Corpus Relief since his
         confinement is based on a PCRA proceeding that denied Due
         Process?

      2. [Did] the trial court abuse[] its discretion in dismissing
         Appellant’s Petition for Habeas Corpus Relief since his



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         confinement is based on Three Strike legislation pursuant to 42
         Pa.C.S.A. Section 9714 that is unconstitutionally vague?

Appellant’s brief, at 3.

      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.      Commonwealth v.

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We first address the timeliness of

Appellant's habeas petition, which the PCRA court deemed a PCRA petition,

because the PCRA time limitations implicate our jurisdiction such that we may

not alter or disregard them in order to address the merits of a petition.

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

            Under the PCRA, any petition for post-conviction relief,
      including a second or subsequent one, must be filed within one
      year of the date the judgment of sentence becomes final, unless
      one of the following exceptions set forth in 42 Pa.C.S. §
      9545(b)(1)(i)–(iii) applies:

          (b) Time for filing petition.—

              (1) Any petition under this subchapter, including a
              second or subsequent petition, shall be filed within
              one year of the date the judgment becomes final,
              unless the petition alleges and the petitioner 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;

                  (ii) the facts upon which the claim is
                  predicated were unknown to the petitioner


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                 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
      one of these exceptions “shall be filed within 60 days of the date
      the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

Commonwealth v. Rouse, 191 A.3d 1, 3–4 (Pa. Super. 2018).

      Here, Appellant’s judgments of sentence became final on Monday,

December 21, 2009, sixty days after The Supreme Court of Pennsylvania

denied his petition for allowance of appeal.         42 Pa.C.S. § 9545(b)(3).

Appellant, therefore, had until December 21, 2010 to file the present petition

in a timely manner.     As it is, however, Appellant did not file the present

petition until January 5, 2018, making the petition over seven years untimely.

      Furthermore, Appellant fails to allege, let alone prove, any exception to

the PCRA time bar.     He argues, however, that the PCRA court improperly

construed his writ of habeas corpus as a PCRA petition.

       It is well-settled that the PCRA remains “the sole means of obtaining

collateral relief” if the underlying claim raised in a habeas petition is one that

could potentially be remedied under the PCRA.             42 Pa.C.S. § 9542;

Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013). Reviewing

Appellant’s two claims, we observe that his allegation of ineffective assistance

of trial counsel was clearly cognizable under the PCRA, such that its


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presentation within a writ of habeas corpus did not enable it to escape the

timeliness provisions of the PCRA. See Commonwealth ex rel. Dadario v.

Goldberg, 773 A.2d 126, 130 (Pa. 2001) (holding all constitutionally-

cognizable claims of ineffective assistance of counsel are reviewable under the

PCRA). Pursuant to Dadario, it was appropriate for the PCRA court to deny

relief on Appellant's claim of trial counsel’s ineffectiveness as if the claim were

presented in an untimely third PCRA petition.

      In Appellant’s second claim, he posits that the PCRA court erroneously

reviewed his void-for-vagueness challenge to the Three Strikes law at Section

9714(a)(2) as a claim cognizable under the PCRA. Specifically, the substance

of Appellant’s void-for-vagueness argument states that, to the extent the

statute permits a judge to impose a sentence of life without parole upon

determining that a 25-year sentence is “insufficient to protect the public

safety[,]” the statute fails to define “protect the public safety” sufficiently to

notify an ordinary individual as to what is meant by “public safety.”

Appellant’s brief, at 12.

      In support of his claim, Appellant relies exclusively on Rouse, in which

this Court held that a void-for-vagueness claim raising a sentencing issue that

presents a legal question (for example, challenging the legislature’s ostensible

failure to provide adequate notice of the penalty for second-degree murder)

rather than an issue presenting a question of whether the sentence is illegal

under the purview of Section 9543(a)(2)(vii) of the PCRA is not cognizable

under the PCRA. Id. at *6. However, even assuming arguendo that Appellant

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correctly argues his void-for-vagueness sentencing claim comes under the

Rouse decision, he fails to acknowledge the second part of Rouse, which

observes that the remedy of habeas corpus relief is available only after

confirming other remedies have been exhausted or are nonexistent. Id.

      In Rouse, we determined that even though the appellant’s void-for-

vagueness claim was not contemplated by the PCRA and was, instead, of the

type eligible for habeas relief, it nevertheless was waived because the

appellant could have raised it at his sentencing hearing or in a post-sentence

motion but failed to do so.   In the case sub judice, the same fate befalls

Appellant’s claim, as he, too, failed to exhaust the available remedies of a

sentencing hearing objection or a post-sentence motion. Accordingly, waiver

applies, and we affirm the PCRA court’s order denying relief on this claim,

albeit on a different basis. See Commonwealth v. Williams, 125 A.3d 425,

433 n.8 (Pa. Super. 2015).

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/20




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