Com. v. Ayandele, A.

• Court: Superior Court of Pennsylvania
• Decided: November 22, 2016
• Docket: 750 WDA 2016
• Status: Unpublished

Opinion

J-S86033-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ANTHONY ALONZO AYANDELE

Appellant No. 750 WDA 2016

Appeal from the PCRA Order April 7, 2016 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0009454-2001; CP-02-CR-0010008-2001

BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY GANTMAN, P.J.: FILED NOVEMBER 22, 2016

Appellant, Anthony Alonzo Ayandele, appeals pro se from the order

entered in the Allegheny County Court of Common Pleas, which dismissed

his pro se second petition for collateral relief (labeled a petition for writ of

habeas corpus ad subjiciendum), per the Post Conviction Relief Act (“PCRA”),

at 42 Pa.C.S.A. §§ 9541-9546. On February 20, 2003, the court convicted

Appellant of third-degree murder and firearms not to be carried without a

license. The court sentenced Appellant on May 14, 2003, to an aggregate

term of 20-40 years’ imprisonment. This Court affirmed the judgment of

sentence on February 20, 2004, and our Supreme Court denied allowance of

appeal on October 6, 2004. See Commonwealth v. Ayandele, 849 A.2d

601 (Pa.Super. 2004), appeal denied, 580 Pa. 693, 860 A.2d 121 (2004).

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*Former Justice specially assigned to the Superior Court. J-S86033-16

Appellant timely filed a pro se PCRA petition on September 14, 2005. The

court appointed counsel, who filed a Turner/Finley1 no-merit letter and

motion to withdraw on August 15, 2007. The court granted counsel’s motion

and issued Pa.R.Crim.P. 907 notice on October 10, 2007. The court denied

PCRA relief on November 30, 2007, and this Court affirmed on February 20,

2009. See Commonwealth v. Ayandele, 970 A.2d 463 (Pa.Super. 2009).

On August 13, 2015, Appellant filed in civil court the current pro se petition

for writ of habeas corpus ad subjiciendum, which was transferred to criminal

court on September 2, 2015. The court treated the filing as a PCRA petition

and appointed counsel. Counsel filed a request to withdraw and

Turner/Finley no-merit letter on March 1, 2016. The court issued Rule 907

notice on March 3, 2016; Appellant responded pro se on March 16, 2016.

On March 31, 2016, counsel filed a supplemental no-merit letter. The court

dismissed the petition on April 7, 2016, and granted counsel’s request to

withdraw. Appellant timely filed a pro se notice of appeal on April 25, 2016.

On May 5, 2016, the court ordered Appellant to file a Pa.R.A.P. 1925(b)

statement; Appellant timely complied.

Preliminarily, any petition for post-conviction collateral relief will

generally be considered a PCRA petition, even if captioned as a request for

habeas corpus relief, if the petition raises issues for which the relief sought ____________________________________________

1 Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).

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is available under the PCRA. See Commonwealth v. Peterkin, 554 Pa.

547, 722 A.2d 638 (1998); 42 Pa.C.S.A. § 9542 (stating PCRA shall be sole

means of obtaining collateral relief and encompasses all other common law

and statutory remedies for same purpose). As well, the timeliness of a PCRA

petition is a jurisdictional requisite. Commonwealth v. Turner, 73 A.3d

1283 (Pa.Super. 2013), appeal denied, 625 Pa. 649, 91 A.3d 162 (2014). A

PCRA petition must be filed within one year of the date the underlying

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

at the conclusion of direct review or at the expiration of time for seeking

review. 42 Pa.C.S.A. § 9545(b)(3). The exceptions to the PCRA time-bar

allow for very limited circumstances under which the late filing of a petition

will be excused; a petitioner asserting an exception must file a petition

within 60 days of the date the claim could have been presented. See 42

Pa.C.S.A. § 9545(b)(1-2). Instantly, Appellant claims he had insufficient

notice of the charges against him where the Commonwealth charged him

with murder generally, and the court lacked statutory authority to impose a

sentence of imprisonment for his crimes. These claims are cognizable under

the PCRA. See generally Commonwealth v. Hackett, 598 Pa. 350, 956

A.2d 978 (2008), cert. denied, 556 U.S. 1285, 129 S.Ct. 2772, 174 L.Ed.2d

277 (2009) (explaining collateral attack on underlying murder conviction

falls within ambit of PCRA); Commonwealth v. Fowler, 930 A.2d 586

(Pa.Super. 2007), appeal denied, 596 Pa. 715, 944 A.2d 756 (2008)

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(holding collateral attack on legality of sentence must be raised in PCRA

petition; challenges to legality of sentence must first satisfy PCRA time limits

or one of statutory exceptions). Thus, the court properly treated Appellant’s

most recent prayer for collateral relief as a PCRA petition. See Peterkin,

supra. Here, Appellant’s judgment of sentence became final on January 4,

2005, upon expiration of the time to file a petition for writ of certiorari in the

United States Supreme Court. See U.S.Sup.Ct.R. 13. Appellant filed the

current pro se petition for collateral relief on August 13, 2015, which is

patently untimely. See 42 Pa.C.S.A. § 9545(b)(1). Appellant did not

acknowledge the untimeliness of his petition or assert any timeliness

exception. See 42 Pa.C.S.A. § 9545(b)(1). Thus, the court properly

dismissed Appellant’s petition as untimely. Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/22/2016

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