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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GARNET D. SMITH                            :
                                               :
                       Appellant               :   No. 2956 EDA 2018


           Appeal from the PCRA Order Entered September 10, 2018,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0332181-1985.


BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY KUNSELMAN, J.:                        FILED NOVEMBER 07, 2019

        Garnet D. Smith appeals pro se from the order dismissing his third

petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

        On November 2, 1980, when Smith was twenty-five years old, he shot

and killed a man outside of a bar in Germantown, Pennsylvania. On December

3, 1986, a jury convicted Smith of first-degree murder2 and possession of an

instrument of a crime (“PIC”).3           The trial court sentenced Smith to life

imprisonment without the possibility of parole for murder, and a consecutive

term of two and one-half to five years of imprisonment for PIC. This Court

affirmed Smith’s judgment of sentence, and on March 12, 1990, the Supreme
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1   42 Pa.C.S.A. §§ 9541-9546.

2   18 Pa.C.S.A. § 2502(a).

3   18 Pa.C.S.A. § 907.
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Court of Pennsylvania denied allocatur. See Commonwealth v. Smith, 552

A.2d 1053 (Pa. Super. 1988), appeal denied, 575 A.2d 112 (Pa. 1990). Smith

did not seek review with the United States Supreme Court. Therefore, Smith’s

judgment of sentence became final ninety days thereafter, on June 11, 1990.

See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13.

      Smith filed his first pro se PCRA petition in 1993, and his second pro se

petition in 2005. The PCRA court dismissed those petitions, and this Court

affirmed the dismissals. See Commonwealth v. Smith, 724 A.2d 211 (Pa.

Super. 1999) (unpublished memorandum); Commonwealth v. Smith, 964

A.2d 446 (Pa. Super. 2008) (unpublished memorandum), appeal denied, 983

A.2d 1248 (Pa. 2009).

      On April 24, 2014, Smith filed the instant pro se petition, which he styled

as a petition for writ of habeas corpus. Therein, Smith argued that he was

entitled to relief because his life sentence without the possibility of parole was

unconstitutional under the United States Supreme Court’s decision in Allyene

v. United States, 133 S. Ct. 2151 (2013). Despite Smith’s classification of

his filing as a petition for writ of habeas corpus, the PCRA court treated it as

a PCRA petition, and issued a Pa.R.Crim.P. 907 notice of intent to dismiss the

petition as untimely.   Smith filed a response to the Rule 907 notice.        On

September 10, 2018, the PCRA court entered an order dismissing the petition.

Smith filed a timely pro se notice of appeal. The PCRA court did not order

Smith to file a Pa.R.A.P. 1925(b) concise statement, but it authored an opinion

pursuant to Pa.R.A.P. 1925(a).

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       On appeal Smith raises the following issue for our review: “Did the trial

court err by reviewing [Smith’s] habeas corpus petition as a PCRA petition and

dismissing it as untimely warranting a remand to the trial court for an

adjudication on the merit of the habeas corpus petition?” Smith’s Brief at 6.

       Our standard of review of an order dismissing a PCRA petition is limited

to considering “whether the determination of the PCRA court is supported by

evidence of record and is free of legal error.” Commonwealth v. Brandon,

51 A.3d 231, 233 (Pa. Super. 2012).

       Smith argues that the PCRA court erred in treating his habeas corpus

petition as a PCRA petition subject to timeliness considerations. He contends

that his habeas corpus petition fell outside the scope of the PCRA because he

argued therein that his life sentence without the possibility of parole is

unconstitutional under Alleyne.4          Specifically, Smith asserts that Alleyne,

when read in conjunction with Miller v. Alabama, 567 U.S. 460 (2012)

(holding that mandatory minimum life sentences without possibility for parole

for persons under the age of eighteen violate the Eighth Amendment’s

prohibition on cruel and unusual punishment), and Montgomery v.

Louisiana, 136 S. Ct. 718 (2016) (holding that Miller applies retroactively to

cases on collateral appeal), dictates that Smith’s age was an element of the

crime that should have been determined by a jury beyond a reasonable doubt.
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4 Alleyne held that, other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory minimum
must be submitted to a jury and proven beyond a reasonable doubt. 133 S.
Ct. at 2160-61.

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Accordingly, Smith claims that his sentence is unconstitutional because he

received a mandatory minimum life sentence without the possibility of parole,

and a jury never determined beyond a reasonable doubt that he was over the

age of eighteen. Smith further argues that, because the claim raised in his

habeas corpus petition implicates the constitutionality of his sentence, it is not

cognizable under the PCRA, or subject to its limitations.

      First, we address whether the PCRA court correctly treated Smith’s

petition as a PCRA petition. “[B]oth 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).                  The PCRA

provides that, “[t]he action established in this subchapter shall be the sole

means of obtaining collateral relief and encompasses all other common law

and statutory remedies for the same purpose that exist when this subchapter

takes effect, including habeas corpus and coram nobis.”              42 Pa.C.S.A.

§ 9542 (emphasis added). Pennsylvania’s habeas corpus statute provides that

“the writ of habeas corpus shall not be available if a remedy may be had by

post-conviction hearing proceedings authorized by law.”              42 Pa.C.S.A.

§ 6503(b). Thus, where a petitioner’s claim is eligible for relief under the

PCRA, the petitioner must proceed thereunder.         See Commonwealth v.

Peterkin, 722 A.2d 638, 641 (Pa. 1998).         Entitling a petition as a writ of

habeas corpus rather than a PCRA petition does not remove the petition from




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the subject matter or the requirements of the PCRA. See Commonwealth

v. Breakiron, 781 A.2d 94, 96 n.2 (Pa. 2001).

      Pennsylvania courts have consistently held that “[i]ssues concerning the

legality of sentence are cognizable under the PCRA.” Commonwealth v.

Beck, 848 A.2d 987, 989 (Pa. Super. 2004).         The PCRA itself states that

“[t]his subchapter provides for an action by which . . . persons serving

illegal sentences may obtain collateral relief.”        42 Pa.C.S.A. § 9542

(emphasis added).     Moreover, this Court has specifically held that Alleyne

claims implicate the legality of the sentence and, therefore, fall within the

ambit of the PCRA.    See Commonwealth v. Ruiz, 131 A.3d 54, 60 (Pa.

Super. 2015) (holding that petitioners can raise an Alleyne claim in a timely

PCRA petition where the petitioner’s direct appeal was still pending when

Alleyne was decided); see also Commonwealth v. Newman, 99 A.3d 86,

90 (Pa. Super. 2014) (en banc) (holding that a challenge to a sentence

premised upon Alleyne implicates the legality of the sentence). Thus, Smith’s

challenge to the legality of his sentence based upon Alleyne is cognizable

under the PCRA, and the trial court properly construed Smith’s petition for writ

of habeas corpus as a PCRA petition.

      Having concluded that Smith’s Alleyne claim is cognizable under the

PCRA, we next address whether the PCRA court erred in determining that it

lacked jurisdiction to review Smith’s petition.    Pursuant to § 9545, PCRA

petitions “shall be filed within one year of the date the judgment became

final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final “at

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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). The

PCRA’s time restrictions are jurisdictional in nature; thus, if a PCRA petition is

untimely, no court has the legal authority to address the substantive claims

raised in the petition.     Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa.

Super. 2017).

        As noted above, Smith’s judgment of sentence became final on June 11,

1990. Smith filed the instant petition on April 24, 2014, almost 24 years after

his judgment of sentence became final.           Thus, Smith’s petition is facially

untimely, and the PCRA court lacked jurisdiction to address it unless Smith

pled and proved one of the three exceptions set forth in § 9545(b)(1). 5
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5   The three exceptions to the timeliness requirement are:

        (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 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.A. §§ 9545(b)(1)(i), (ii), and (iii).




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Additionally, Smith must establish that he filed the petition within sixty days

of the date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2).6

       In his petition, Smith did not attempt to establish any of the PCRA’s

timeliness exceptions. Indeed, in his appellate brief, Smith explicitly concedes

that in his original petition and amendment thereto, he “did not advance a

timeliness exception.” Smith’s Brief at 8. Instead, Smith’s entire argument

is premised upon his claim that the PCRA’s time restrictions do not apply to

his petition for writ of habeas corpus.          However, as we have already

determined, Smith cannot avoid the dictates and limitations of the PCRA

merely by styling his petition as a writ of            habeas corpus.      See

Commonwealth v. Taylor, 65 A.3d 462 (Pa. Super. 2013) (holding that an

appellant’s writ of habeas corpus that challenges the legality of sentence

should be treated as PCRA petition because “the PCRA is intended to be the

sole means of achieving post-conviction relief”). Thus, because Smith failed

to plead and prove any of the timeliness exceptions provided in § 9545(b)(1),

we conclude that the PCRA court correctly determined that it lacked

jurisdiction to consider the merits of Smith’s untimely petition.

       As the record supports the PCRA’s courts findings and the order is free


____________________________________________


6Section 9545(b)(2) has since been amended to enlarge this period from sixty
days to one year. See Act of 2018, October 24, P.L. 894, No. 146, §§ 2 and
3. Because Smith filed this appeal prior to the effective date of the
amendment, the sixty-day time period applies in this appeal.            See
Commonwealth v. Beatty, 207 A.3d 957, 962 n.3 (Pa. Super. 2019).


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of legal error, we affirm the PCRA court’s order dismissing Smith’s petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/19




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