J-S05042-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                             :        PENNSYLVANIA
                     Appellee                :
                                             :
                v.                           :
                                             :
  GREGORY BACON,                             :
                                             :
                     Appellant               : No. 1498 WDA 2018


          Appeal from the PCRA Order Entered September 13, 2018
           in the Court of Common Pleas of Westmoreland County
             Criminal Division at No(s): CP-65-CR-0004967-2006

BEFORE:     PANELLA, P.J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                        FILED APRIL 11, 2019

      Gregory Bacon (Appellant) pro se appeals from the September 13, 2018

order, which dismissed his petition filed pursuant to the Post Conviction Relief

Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

            On December 7, 2007, a jury convicted Appellant of first-
      degree murder and firearms not to be carried without a license for
      offenses that were committed when Appellant was twenty-four
      years old. The trial court sentenced Appellant on January 30,
      2008, to a mandatory term of life without parole. This Court
      affirmed the judgment of sentence on November 25, 2008, and
      our Supreme Court denied allowance of appeal on July 22, 2009.
      See Commonwealth v. Bacon, 964 A.2d 933 (Pa. Super. 2008)
      (unpublished memorandum), appeal denied, 981 A.2d 216 (Pa.
      2009).

             Appellant timely filed his first PCRA petition pro se on August
      10, 2009. The PCRA court appointed counsel, who subsequently
      filed a “no-merit” letter and a motion to withdraw. The PCRA court
      granted counsel’s motion and issued a notice of its intent to
      dismiss Appellant’s petition without a hearing pursuant to
      Pa.R.Crim.P. 907. Appellant filed a pro se response and a motion


*Retired Senior Judge assigned to the Superior Court.
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       requesting the appointment of counsel. The PCRA court denied
       Appellant’s motion and dismissed his petition. This Court affirmed
       the dismissal. See Commonwealth v. Bacon, 60 A.3d 567 (Pa.
       Super. 2012) (unpublished memorandum).

Commonwealth v. Bacon, 159 A.3d 44 (Pa. Super. 2016) (unpublished

memorandum at 1) (footnotes omitted).

       Appellant pro se filed a second PCRA petition on February 1, 2016. The

PCRA court dismissed Appellant’s petition, and Appellant filed a notice of

appeal to this Court. On appeal, this Court concluded that Appellant’s petition

was filed untimely, and held that the United States Supreme Court’s holding

in Miller v. Alabama, 567 U.S. 460 (2012),1 did not satisfy an exception to

the timeliness requirements in his case. See Bacon, supra.

       On December 27, 2017, Appellant filed pro se a petition for writ of

habeas corpus ad subjiciendum in the Court of Common Pleas of Indiana

County. In that petition, Appellant claimed that 1) “[t]he Commonwealth[’s]

attorney violated [Appellant’s] procedural due process of law;” 2) “[the trial]

court did not have statutory authorization to instruct the jury on first[-]degree

murder where [Appellant’s] trial was not deemed a capital case;” and 3) “[the

trial] court did not have statutory authorization to impose the sentence of life




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1 In Miller, the United States Supreme Court held that a “mandatory
[sentence of] life without parole for those under the age of 18 at the time of
their crimes violates the Eighth Amendment’s prohibition on cruel and unusual
punishments.” 567 U.S. at 465 (internal quotations omitted).


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imprisonment sua sponte.” Petition for Writ of Habeas Corpus, 12/27/2017,

at 4 (capitalization altered).

       On December 28, 2017, the Court of Common Pleas of Indiana County

entered an order transferring the petition to Westmoreland County, the county

where Appellant was tried, convicted, and sentenced. See Pa.R.Crim.P.

108(A) (“A petition for writ of habeas corpus challenging the legality of the

petitioner’s detention or confinement in a criminal matter shall be filed with

the clerk of courts of the judicial district in which the order directing the

petitioner’s detention or confinement was entered.”).

       On May 31, 2018, the Commonwealth filed a response to Appellant’s

petition for writ of habeas corpus, arguing, inter alia, that it should be treated

as a PCRA petition. Commonwealth’s Response, 5/31/2018, at ¶ 1. On August

17, 2018, the PCRA court issued notice of its intent to dismiss Appellant’s

petition without a hearing.2 Specifically, the PCRA court determined that the

petition for writ of habeas corpus was Appellant’s third PCRA petition, and the

PCRA court lacked jurisdiction over this untimely-filed petition. Appellant filed

an objection to the notice, arguing that he did not assert claims under the

PCRA.    Objection     to   Dismiss,    9/10/2018,   at   1   (unnumbered).   The


____________________________________________


2 The PCRA court pointed out that a hearing was originally scheduled for May
31, 2018, but “its scheduling was an administrative error and not based upon
the merits of [Appellant’s] claims.” Notice of Intent to Dismiss, 8/17/2018, at
2. No hearing occurred.



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Commonwealth filed a response, and on September 14, 2018, the PCRA court

dismissed Appellant’s petition. Appellant timely filed a notice of appeal to this

Court.3

       On appeal, Appellant claims that the court erred in treating his petition

as a PCRA petition. According to Appellant, “he is not alleging that the truth-

determining process underlying his conviction and sentence was undermined

by constitutional violations or ineffective assistance of counsel.” Appellant’s

Brief at 11. He also argues that he is not claiming “governmental interference

with his right to appeal, that the sentence imposed was greater than the lawful

maximum, or that the court lacked jurisdiction.” Id. Further, he claims he is

not “alleging after-discovered exculpatory evidence.” Id.        Thus, Appellant

claims that “none of the bases for relief under the PCRA address [sic] the

unique situation in this case” and therefore “[n]o other remedy exists besides

the writ of habeas corpus.”4 Id. (capitalization altered).

       Appellant goes on to argue the claims he set forth in his petition for writ

of habeas corpus: 1) that his right to procedural due process was violated

because the court lacked subject matter jurisdiction, see Appellant’s brief at


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3 The PCRA court did not direct Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and directs this Court
to consider its August 17, 2018 notice of intention to dismiss Appellant’s
petition as an opinion pursuant to Pa.R.A.P. 1925(a).

4 The foregoing are all taken almost verbatim from the portion of the PCRA
statute which outlines the claims that make a petitioner eligible for PCRA relief.
See 42 Pa.C.S. § 9543(a)(2)(i), (ii), (iv), (vi), (vii).

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12-14; that the trial court was not authorized to instruct the jury on first-

degree murder in this non-capital case, id. at 14-15; and that the court was

not authorized to sentence Appellant to life in prison without parole, which

resulted in an illegal sentence, id. at 15-16.

      We review Appellant’s claim mindful of the following.

            [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....
      [W]e have held that the scope of the PCRA eligibility requirements
      should not be narrowly confined to its specifically enumerated
      areas of review. Such narrow construction would be inconsistent
      with the legislative intent to channel post-conviction claims into
      the PCRA’s framework, and would instead create a bifurcated
      system of post-conviction review where some post-conviction
      claims are cognizable under the PCRA while others are not.

Commonwealth v. Thompson, 199 A.3d 889, 891 (Pa. Super. 2018) (citing

Commonwealth v. Hackett, 956 A.2d 978, 985-86 (Pa. 2008) (some

citations omitted)).

      Here, Appellant is claiming both that his case proceeded “in a tribunal

without jurisdiction” and that his sentence is “greater than the lawful

maximum.” See 42 Pa.C.S. § 9543(a)(2)(vii), (viii). Moreover, Appellant’s

vague claims regarding jurisdictional matters and statutory authorization

arguably contemplate that Appellant is requesting that his judgment of

sentence be vacated. Such relief is clearly contemplated by the PCRA. See

Thompson, 199 A.3d at 892 (“[T]he focus of a court considering a petition is

on the remedy being sought by the petitioner. See 42 Pa.C.S. § 6503(b) (‘The




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writ of habeas corpus shall not be available if a remedy may be had by post-

conviction hearing proceedings authorized by law.’”) (emphasis added)).

       Accordingly, we agree with the PCRA court and the Commonwealth, see

Commonwealth’s Brief at 5, that the PCRA was the proper vehicle to examine

this petition. Thus, we now consider Appellant’s petition as a PCRA petition.

       Generally, a PCRA petition must be filed within one year from the
       date a judgment becomes final. There are three exceptions to this
       time requirement: (1) interference by government officials in the
       presentation of the claim; (2) newly discovered facts; and (3) an
       after-recognized constitutional right. When a petitioner alleges
       and proves that one of these exceptions is met, the petition will
       be considered timely. A PCRA petition invoking one of these
       exceptions must be filed within [one year5] of the date the claims
       could have been presented. The timeliness requirements of the
       PCRA are jurisdictional in nature and, accordingly, a PCRA court
       cannot hear untimely petitions.

Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012)

(citations and quotation marks omitted).

       Because Appellant’s filing is well-outside of the one-year timeframe

provided in the PCRA, the PCRA court had no jurisdiction to entertain

Appellant’s petition unless he pleaded and offered proof of one or more of the

three statutory exceptions to the time bar.      See 42 Pa.C.S. § 9545(b)(1).

Appellant failed to do so, and therefore the PCRA court lacked jurisdiction to




____________________________________________


5Because Appellant filed this petition after December 24, 2017, the amended
version of 42 Pa.C.S. 9545(b)(2), which extends the 60-day period to one
year, applies in this case. In any event, it does not matter for the disposition
of this case.

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entertain Appellant’s untimely-filed petition.   Based on the foregoing, we

affirm the order of the PCRA court.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2019




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