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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ANWAR SHARIF ALI ALI

                            Appellant                  No. 3508 EDA 2014


                Appeal from the PCRA Order November 4, 2014
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0003588-2004


BEFORE: PANELLA, J., MUNDY, J., JENKINS, J.

MEMORANDUM BY PANELLA, J.                        FILED SEPTEMBER 08, 2015

        Appellant, Anwar Sharif Ali Ali, proceeding pro se, seeks review of the

denial of his petition for a writ of habeas corpus, and avers that the PCRA

court erred in dismissing his petition as an untimely-filed Post Conviction

Relief Act (“PCRA”) petition.1 We affirm.

        On October 18, 2005, Appellant entered into a negotiated plea of

guilty to one count each of armed robbery and conspiracy to commit armed

robbery. Pursuant to the agreement, the trial court imposed an aggregate

sentence of five to ten years’ incarceration and a consecutive term of eight

years’ probation.      Appellant did not file a direct appeal.   His judgment of

sentence thus became final on November 17, 2005. See Pa.R.A.P. 903(a).

____________________________________________


1
    42 Pa.C.A. §§ 9541-9546.
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      On October 16, 2006, Appellant filed a timely pro se PCRA petition.

Counsel was appointed, but filed a petition for leave to withdraw and a no-

merit letter. On July 2, 2007, the PCRA court denied relief without a hearing

and granted counsel’s motion.     On July 10, 2008, this Court affirmed.     It

does not appear that Appellant sought allowance of appeal from the

Supreme Court. However, the Supreme Court later denied relief on various

other pro se petitions, among them a petition for a writ of habeas corpus.

See Commonwealth v. Ali, No. 226 MM 2010 (Pa. filed April 15, 2011).

Appellant also filed a petition for writ of habeas corpus in the Federal court,

which was dismissed.

      On July 18, 2014, Appellant filed a pro se petition for a writ of habeas

corpus in the civil division of the court of common pleas and a petition to

proceed in forma pauperis. The court denied his request to proceed in forma

pauperis based on a determination that the underlying action was frivolous.

See Pa.R.C.P. 240(j)(1). The court then denied the habeas corpus petition.

      While that appeal was pending, Appellant mailed a copy of his civil

petition for habeas corpus relief directly to the chambers of the Honorable

Joseph A. Smyth, Jr. Judge Smyth sent it to the clerk of courts for filing.

Thereafter, the court issued a notice of intent to dismiss the petition without

a hearing. Appellant filed a response “arguing, among other things, that the

civil nature of the remedy of habeas corpus somehow vitiated the lower

court’s treatment of Ali’s petition as one governed by the PCRA.”       Order,

entered 11/4/14, at 4. The court dismissed Appellant’s second PCRA petition

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as untimely. Appellant timely appealed to this Court, raising the following

issue (stated verbatim):

       Did the lower court abused it’s discretion and/or error at law,
       when it subsumed Appellant’s Petition for Writ of Habeas Corpus
       as a PCRA petition, and by falling to apply the Pro se liberal
       construe standard, when Appellant’s essential core claim was:
       “The continued vitality of Appellant’s sentence is illegal as it is a
       null and void judgment, unconstitutional and fundamentally
       unfair and unjust and therefore cruel and unusual punishment.
       Appellant’s restraint is unlawful,” which fell outside the sphere of
       the P.C.R.A., because the only sentence(ing) issue that is
       subject to P.C.R.A. review is whether the sentence imposed is
       greater than the lawful maximum?

Appellant’s brief at 12-13.

       The PCRA states that it “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[.]” 42 Pa.C.S.A. § 9542. This language “demonstrates quite clearly

that the General Assembly intended that claims that could be brought under

the PCRA must be brought under that Act.” Commonwealth v. Hall, 771

A.2d    1232,   1235    (Pa.   2001)    (emphasis     in   original).   See    also

Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa. 1998) (“The writ [of

habeas corpus ] continues to exist only in cases in which there is no remedy

under the PCRA.”); Commonwealth v. Descardes, 101 A.3d 105, 108 (Pa.

Super. 2014) (en banc).

       In the instant case, Appellant asserts that his sentence is “illegal as it

is a null and void judgment, unconstitutional and fundamentally unfair and

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unjust[.]”   Appellant’s Brief at 13.   There is no doubt that this explicit

challenge is to the legality of the sentence. It is thus cognizable under the

PCRA. See 42 Pa.C.S.A. §9543(a)(2)(vii); Commonwealth v. Voss, 838

A.2d 795, 799 (Pa. Super. 2003). Because the PCRA is the sole means of

obtaining relief when the legality of sentence is challenged, the court did not

err in treating Appellant’s petition as a second PCRA petition.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.”         Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,

Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013).

      Before we address the merits of a PCRA petition, we must first

consider the petition’s timeliness. “The PCRA timeliness requirements are

jurisdictional in nature and, accordingly, a court cannot hear untimely PCRA

petitions.” Commonwealth v. Flanagan, 854 A.2d 489, 509 (Pa. 2004)

(citation omitted). A petitioner must file a PCRA petition within one year of

the date that his judgment becomes final. See 42 Pa.C.S.A. § 9545(b)(1). 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

review. See 42 Pa.C.S.A. § 9545(b)(3).




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      Here, Appellant’s sentence became final on November 17, 2005. Thus,

this second PCRA petition—filed nearly nine years later on August 18, 2014—

is patently untimely. Appellant has not asserted that his petition falls within

any of the timeliness exceptions provided in the PCRA. See 42 Pa.C.S.A. §

9545(b)(1)(i)-(iii).   Accordingly, neither the lower court nor this Court has

jurisdiction to consider Appellant’s request for relief.   See 42 Pa.C.S. §

9545(b)(1).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2015




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