Com. v. Hickson, M.

• Court: Superior Court of Pennsylvania
• Decided: November 28, 2017
• Docket: 943 MDA 2017
• Status: Unpublished

Opinion

J-S70004-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : MCARTHUR FRANK HICKSON : : Appellant : No. 943 MDA 2017

Appeal from the PCRA Order May 24, 2017 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0000606-2009, CP-06-CR-0004746-2009

BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED NOVEMBER 28, 2017

Appellant, McArthur Frank Hickson, appeals pro se from the order

entered in the Berks County Court of Common Pleas, which dismissed his

pro se serial petition for collateral relief (labeled as a petition for writ of

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

§§ 9541-9546. On September 9, 2010, Appellant entered negotiated guilty

pleas at Docket No. 0606-2009 and Docket No. 4746-2009; at each docket,

Appellant pled guilty to one count each of possession with intent to distribute

(“PWID”) and persons not to possess a firearm. That same day, the court

sentenced Appellant to an aggregate term of 8-20 years’ incarceration. On

September 29, 2011, this Court dismissed Appellant’s appeal for failure to

file a brief. Appellant did not seek further review, so the judgment of

sentence became final on Monday, October 31, 2011. J-S70004-17

Appellant timely filed his first pro se PCRA petition at both dockets on

December 21, 2011. The PCRA court appointed counsel, who filed a motion

to withdraw as counsel and Turner/Finley1 no-merit letter on February 6,

2012. On February 16, 2012, the PCRA court granted counsel’s motion to

withdraw and issued Rule 907 notice. The PCRA court subsequently

dismissed Appellant’s PCRA petition on March 12, 2012. On September 14,

2012, this Court affirmed the denial of PCRA relief. See Commonwealth v.

Hickson, 60 A.3d 852 (Pa.Super. 2012) (unpublished memorandum).

Appellant filed on January 6, 2015, a pro se petition for writ of habeas

corpus at both dockets, which the PCRA court deemed Appellant’s second

PCRA petition. On March 17, 2015, the PCRA court dismissed Appellant’s

petition. This Court affirmed on September 24, 2015, and our Supreme

Court denied allowance of appeal on February 8, 2016. See

Commonwealth v. Hickson, 133 A.3d 78 (Pa.Super. 2015) (unpublished

memorandum), appeal denied, 635 Pa. 722, 131 A.3d 490 (2016). On

March 7, 2016, Appellant filed a pro se “Application for Clarification” at

Docket No. 4746-2009, which the PCRA court deemed Appellant’s third PCRA

petition at that docket number. The PCRA court dismissed Appellant’s

petition on March 17, 2016. On September 7, 2016, this Court affirmed.

See Commonwealth v. Hickson, 158 A.3d 170 (Pa.Super. 2016) ____________________________________________

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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(unpublished memorandum). On March 6, 2017, Appellant filed at both

dockets the current pro se petition for writ of habeas corpus, which the PCRA

court deemed Appellant’s third PCRA petition at Docket No. 0606-2009 and

his fourth PCRA petition at Docket No. 4746-2009. The PCRA court issued

Rule 907 notice on April 27, 2017. Appellant filed a response on May 19,

2017. On May 24, 2017, the PCRA court dismissed Appellant’s petition.

Appellant timely filed a pro se notice of appeal on June 8, 2017. On June

13, 2017, the PCRA court ordered Appellant to file a concise statement per

Pa.R.A.P. 1925(b); Appellant timely complied on July 3, 2017.

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

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

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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 challenges the PCRA court’s denial of Appellant’s

first PCRA petition without an evidentiary hearing and insists initial PCRA

counsel rendered ineffective assistance of counsel. Appellant’s claims are

cognizable under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(i), (ii). Thus,

the court properly treated Appellant’s most recent prayer for relief as a PCRA

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

sentence became final on Monday, October 31, 2011, upon expiration of the

time to file a petition for allowance of appeal in our Supreme Court. See

Pa.R.A.P. 1113(a). Appellant filed the current, pro se serial petition for

collateral relief on March 6, 2017, which is patently untimely. See 42

Pa.C.S.A. § 9545(b)(1). Appellant did not assert any of the exceptions to

the PCRA time-bar. See 42 Pa.C.S.A. § 9545(b)(1). Therefore, Appellant’s

petition remains time-barred, and the PCRA court lacked jurisdiction to

review it. See Turner, supra. Accordingly, we affirm.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/28/2017

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