Com. v. Fudge, M.

• Court: Superior Court of Pennsylvania
• Decided: September 25, 2017
• Docket: 738 MDA 2017
• Status: Unpublished

Opinion

J-S58040-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : MAURICE FUDGE : : Appellant : No. 738 MDA 2017

Appeal from the Order Entered March 1, 2017 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000317-2009

BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED SEPTEMBER 25, 2017

Appellant, Maurice Fudge, appeals pro se from the order entered in the

Lycoming County Court of Common Pleas, which dismissed as untimely his

second petition for collateral relief (labeled a petition for writ of habeas

corpus), per the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§

9541-9546. On August 18, 2009, a jury convicted Appellant of two counts

each of robbery and conspiracy to commit robbery, and one count each of

theft, receiving stolen property, simple assault, and terroristic threats. The

court sentenced Appellant on October 20, 2009, to an aggregate term of 10

to 20 years’ imprisonment. This Court affirmed the judgment of sentence on

August 10, 2010, and our Supreme Court denied allowance of appeal on May

23, 2012. See Commonwealth v. Fudge, 11 A.3d 1019 (Pa.Super. 2010),

appeal denied, 616 Pa. 626, 46 A.3d 715 (2012). J-S58040-17

Appellant timely filed a pro se PCRA petition on August 9, 2012. The

court appointed counsel, who filed a motion to withdraw and Turner/Finley1

no-merit letter. On November 16, 2012, the court issued appropriate notice

per Pa.R.Crim.P. 907. The court denied PCRA relief on December 11, 2012,

and granted counsel’s motion to withdraw. This Court affirmed the decision

on September 3, 2013, and our Supreme Court denied allowance of appeal

on February 26, 2014. See Commonwealth v. Fudge, 87 A.3d 370

(Pa.Super. 2013), appeal denied, 624 Pa. 687, 87 A.3d 318 (2014).

Appellant filed the current petition for collateral relief pro se on

January 26, 2017, labeled a petition for writ of habeas corpus. The court

treated the filing as a PCRA petition and issued Rule 907 notice. Appellant

responded pro se on February 24, 2017. The court denied PCRA relief by

order dated March 1, 2017, and entered on the docket on March 13, 2017.

Appellant timely filed a pro se notice of appeal. No concise statement per

Pa.R.A.P. 1925(b) was ordered or filed.

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 cognizable 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 ____________________________________________

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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relief and encompasses all other common law and statutory remedies for

same purpose). 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 deemed 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. 42 Pa.C.S.A. § 9545(b)(1-2).

Instantly, Appellant claims the court imposed an illegal mandatory

minimum sentence under 42 Pa.C.S.A. § 9714(a)(1) (sentences for second

and subsequent offenses involving crimes of violence). Appellant’s challenge

is cognizable under the PCRA. See Commonwealth v. Fowler, 930 A.2d

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

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

petition). Thus, the court properly treated Appellant’s most recent filing as a

PCRA petition. See Peterkin, supra. Nevertheless, Appellant’s judgment

of sentence became final on August 21, 2012, upon expiration of the time to

file a petition for writ of certiorari with the U.S. Supreme Court. See

U.S.Sup.Ct.R. 13. Appellant filed the current, pro se serial petition for

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collateral relief on January 26, 2017, which is patently untimely. See 42

Pa.C.S.A. § 9545(b)(1). To the extent Appellant attempts to invoke the

“new constitutional right” exception of Section 9545(b)(1)(iii), relying on

Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314

(2013) and its progeny, those cases afford no relief. See Commonwealth

v. Washington, ___ Pa. ___, 142 A.3d 810 (2016) (holding new

constitutional rule announced in Alleyne is not substantive or watershed

procedural rule that warrants retroactive application to collateral attacks on

mandatory minimum sentences, where judgment of sentence became final

before Alleyne was decided). Thus, the PCRA court properly dismissed

Appellant’s petition as untimely.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/25/2017

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