J-A03015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 MAURICE WOODARD                          :
                                          :
                    Appellant             :    No. 1150 WDA 2018

            Appeal from the PCRA Order Entered June 25, 2018
  In the Court of Common Pleas of Erie County Criminal Division at No(s):
                         CP-25-CR-0001825-2004


BEFORE:    BOWES, J., SHOGAN, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.:                             FILED MARCH 19, 2019

      Maurice Woodward appeals pro se from the order that dismissed his

sixth PCRA petition as untimely. Appellant contends that he was incorrectly

denied eligibility for the Recidivism Risk Reduction Incentive (“RRRI”)

program, 61 Pa.C.S. §§ 4501 et seq, resulting in an illegal sentence under

Commonwealth v. Cullen-Doyle, 164 A.3d 1239 (Pa. 2017). We affirm.

      In February of 2004, Appellant and his co-defendant were arrested in

connection with an armed robbery and burglary at the home of an

acquaintance. At the time of the burglary, three people were present in the

home – James Allen, Kelly Phillips, and Ruth Ranson. Mr. Allen and Ms. Phillips

identified Appellant as one of the perpetrators of the burglary and testified

against him at trial. Appellant’s defense was misidentification. At the close

of trial, the jury found him guilty of multiple counts of burglary, robbery,

simple assault, terroristic threats, and criminal conspiracy.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      On December 2, 2004, the trial court sentenced Appellant to an

aggregate term of 18-36 years of imprisonment.          The trial court denied

Appellant’s post-sentence motion on December 15, 2004, and Appellant did

not file a direct appeal. Therefore, his judgment of sentence became final on

January 14, 2005; thirty days after sentence was imposed when he did not

file an appeal.

      Appellant filed a timely PCRA petition, which the PCRA court denied after

a hearing. This Court affirmed, and on March 21, 2007, our Supreme Court

denied allowance of appeal. Commonwealth v. Woodard, 909 A.2d 890

(Pa.Super. 2006), appeal denied, 919 A.2d 957 (Pa. 2007). Appellant filed

four more pro se PCRA petitions over the course of the next ten years. All

four were dismissed as untimely in the PCRA court and affirmed on appeal.

Commonwealth        v.   Woodard,    951    A.2d     1220   (Pa.Super.   2008);

Commonwealth        v.   Woodard,     43    A.3d     513    (Pa.Super.   2012);

Commonwealth v. Woodard, 64 A.3d 288 (Pa.Super. 2013), appeal denied,

72 A.3d 603 (Pa. 2013); Commonwealth v. Woodard, 154 A.3d 845

(Pa.Super. 2016).

      On May 24, 2018, Appellant, acting pro se, filed his sixth PCRA petition,

styled as a “petition for modification of relief.”    In his petition, Appellant

alleged that he was entitled to RRRI eligibility under Cullen-Doyle. PCRA

Petition, 5/24/18, at 1. On June 1, 2018, the PCRA court construed Appellant’s

filing as a PCRA petition and issued a notice of intent to dismiss (“NID”)

pursuant to Pa.R.Crim.P. 907, finding the petition to be untimely. In its NID,

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the court explained that Cullen-Doyle does not implicate a constitutional

right and is factually and legally distinguishable from Appellant’s case. NID

6/1/18, at 3. Appellant filed a response to the NID arguing that the PCRA

court improperly construed his petition for modification of relief as a

successive PCRA. He claimed that his petition should have been converted to

a writ of habeas corpus. Response to NID, 6/20/18, at 2. On June 25, 2018,

the PCRA court denied the PCRA petition.

      Appellant filed a notice of appeal on July 16, 2018. On August 14, 2018,

the PCRA court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.Crim.P. 1925(b). On August 27,

2018, Appellant filed his concise statement, which was returned due to

Appellant’s failure to sign it, and refiled on September 10, 2018.            On

September 12, 2018, the PCRA court issued its Pa.R.Crim.P. 1925(a) opinion,

wherein it incorporated and relied on its NID.

      On appeal, Appellant raises the following issue for our review: “Did the

lower court err by converting defendant[’s] petition for modification of relief

to a successive P.C.R.A. instead of a writ of habeas corpus.” Appellant’s brief

at 3. More specifically, Appellant alleges that his claim is not cognizable under

the PCRA statute because he is requesting a “modification to be placed in a

program as opposed to challenging his sentence.” Id. at 6. Therefore, the

writ of habeas corpus applies and to deny conversion is a denial of Appellant’s

due process and equal protection rights under the Pennsylvania constitution.

Id.

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      It is well-settled that the PCRA is intended to be the sole means of

achieving post-conviction relief. See 42 Pa.C.S. § 9542; Commonwealth v.

Haun, 32 A.3d 697, 699 (Pa. 2011).         Therefore, unless the PCRA cannot

provide a potential remedy, the PCRA statute subsumes the writ of habeas

corpus. Commonwealth v. Taylor, 65 A.3d 462 (Pa.Super. 2013). This

means that a petitioner cannot escape the PCRA time-bar by titling his filing

as a petition for modification or a petition for writ of habeas corpus.

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).

      Appellant concedes that the PCRA covers all cognizable collateral illegal

sentencing claims. Appellant’s brief at 6; 42 Pa.C.S. § 9543. However, he

alleges that the PCRA Court still has jurisdiction to grant his requested relief

pursuant to its habeas corpus powers, because a claim of RRRI eligibility is

not a sentencing issue.    Appellant is incorrect.   A determination of RRRI

eligibility results in a recalculation of the minimum and maximum sentences

that are imposed on a defendant at sentencing.

      More specifically, the RRRI Act requires the trial court to determine at

the time of sentencing whether the defendant is an “eligible offender.” 61

Pa.C.S. § 4505(a). If the court finds the defendant to be an eligible offender,

or if the prosecuting attorney waives the eligibility requirements under 61

Pa.C.S. § 4505(b), the trial court must calculate minimum and maximum

sentences, and then impose the RRRI minimum sentence, which “shall be

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equal to three-fourths of the minimum sentence imposed when the minimum

sentence is three years or less,” or “shall be equal to five-sixths of the

minimum sentence if the minimum sentence is greater than three years.” 61

Pa.C.S. § 4505(c). If an eligible offender “successfully completes the program

plan, maintains a good conduct record and continues to remain an eligible

offender,” he or she may “be paroled on the RRRI minimum sentence date

unless the Board determines that parole would present an unreasonable risk

to public safety or that other specified conditions have not been satisfied.” 37

Pa.Code § 96.1(b).

      Therefore, a challenge to RRRI eligibility necessarily involves an attack

on the legality of sentence. See Commonwealth v. Catt, 994 A.2d 1158,

1160 (Pa.Super. 2010) (holding a claim that implicates the fundamental legal

authority of the court to impose a particular sentence constitutes a challenge

to the legality of the sentence). As such, the PCRA court properly considered

Appellant’s motion for modification as a PCRA petition, where Appellant wished

to challenge the legality of his sentence. Commonwealth v. Fowler, 930

A.2d 586, 591 (Pa.Super. 2007) (observing the PCRA provides the sole means

for obtaining collateral review of a judgment of sentence). Now that we have

established that Appellant’s filing was properly construed as a PCRA petition,

we consider whether the PCRA court correctly determined that it lacked

jurisdiction to consider it.

      “Our standard of review of a PCRA court’s dismissal of a PCRA petition

is limited to examining whether the PCRA court’s determination is supported

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by the record evidence and free of legal error.”              Commonwealth v.

Whitehawk, 146 A.3d 266, 269 (Pa.Super. 2016). In order for a petition to

be timely under the PCRA, it must be filed within one year of the date that a

petitioner’s judgment of sentence became final.         42 Pa.C.S. § 9545(b)(1).

Appellant’s petition, filed more than ten years after his judgment of sentence

became final, is patently untimely. Thus, unless Appellant pled and proved

one of the three exceptions to the PCRA time-bar outlined in 42 Pa.C.S. §

9545(b)(1)(i-iii),1 we cannot address the claim he asserts therein.

        Appellant contends that his PCRA petition falls within the timeliness

exception for a new constitutional right. Id. at § 9545(b)(1)(iii). The new

constitutional right exception has two requirements:          first, that the right

asserted is a constitutional right that was recognized by the federal Supreme

Court or the state Supreme Court after the time provided in the PCRA, and

____________________________________________


1   These exceptions 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 of 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. § 9545(b)(1)(i)-(iii).

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second, that the right has been held by that Court to apply retroactively.

Thus, Appellant must prove that there is a “new” constitutional right and that

the right “has been held” by that Court to apply retroactively. 42 Pa.C.S. §

9545(b)(1)(iii). Appellant fails on both accounts.

         In Cullen-Doyle, our Supreme Court held that a single conviction for

first-degree burglary, by itself, did not disqualify the defendant from RRRI

eligibility.   Cullen-Doyle, supra, at 1244.      Its holding did not implicate

constitutional concerns and the Court did not find that its decision applied

retroactively.    Therefore, the PCRA court’s conclusion that “Cullen-Doyle

does not pertain to a constitutional right, nor does it explicitly state it applies

retroactively” is accurate. NID, 6/1/18, at 3. Accordingly, Appellant has failed

to prove that his Cullen-Doyle claim meets the exception set forth in §

9545(b)(1)(iii) and his untimely PCRA petition was properly denied by the

court.

         Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/19/2019




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