Com. v. Holmes, K.

Opinion

J-S70038-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : KENNETH HOLMES : : Appellant : No. 2709 EDA 2017

Appeal from the PCRA Order August 7, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0124354-1992

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

JUDGMENT ORDER BY GANTMAN, P.J.: FILED DECEMBER 04, 2018

Appellant, Kenneth Holmes, appeals from the order entered in the

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

serial 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 December 16, 1992, the court convicted Appellant of first-degree murder,

robbery, conspiracy, and possessing instruments of crime. The court

sentenced Appellant on October 20, 1993, to life imprisonment for the murder

conviction and lesser terms of imprisonment for the other crimes. This Court

affirmed on April 28, 1994, and our Supreme Court denied allowance of appeal

on September 20, 1994. See Commonwealth v. Holmes, 645 A.2d 889

(Pa.Super. 1994), appeal denied, 538 Pa. 666, 649 A.2d 668 (1994).

From 1996 to 2012, Appellant unsuccessfully litigated numerous J-S70038-18

collateral relief and habeas corpus petitions. On June 22, 2016, Appellant filed

the current pro se petition for writ of habeas corpus, which the court treated

as a serial PCRA petition. Appellant amended his petition several times. On

July 14, 2017, the court issued notice per Pa.R.Crim.P. 907. Appellant filed a

pro se response on July 20, 2017. On August 7, 2017, the court denied PCRA

relief. Appellant timely filed a pro se notice of appeal on August 16, 2017.

On August 28, 2017, the court ordered Appellant to file a Pa.R.A.P. 1925(b)

concise statement; Appellant timely complied on September 14, 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 for which the relief sought 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. Zeigler, 148 A.3d

849 (Pa.Super. 2016). 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 limited circumstances, which excuse the late filing of

a petition; a petitioner asserting an exception must file a petition within 60

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days of the date the claim could have been presented. See 42 Pa.C.S.A. §

9545(b)(1-2).

Instantly, Appellant challenges the legality/constitutionality of his

sentence, which are claims cognizable under the PCRA. See 42 Pa.C.S.A. §

9543(a)(2)(i), (vii) (describing claims of constitutional violations and illegality

of sentence as cognizable under PCRA). Thus, the court properly treated

Appellant’s most recent petition for collateral relief under the PCRA.1 See

Peterkin, supra. Here, our Supreme Court denied allowance of a direct

appeal on September 20, 1994. The judgment of sentence became final on

December 19, 1994, upon expiration of the 90 days to file a petition for writ

of certiorari in the U.S. Supreme Court. See U.S.Sup.Ct.R. 13. Appellant filed

the current petition on June 22, 2016, which is patently untimely. See 42

Pa.C.S.A. § 9545(b)(1). Appellant tries to invoke the “new constitutional

right” time-bar exception at Section 9545(b)(1)(iii), relying on Johnson v.

United States, ___ U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015)

(holding as unconstitutionally vague residual clause of federal Armed Career

Criminal Act of 1984, which permits increased sentences for those who have

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1 To the extent Appellant complains the Department of Corrections (“DOC”) lacks authority to detain him without a written sentencing order, raised as an appropriate habeas corpus claim, we observe the DOC retains detention authority even in the absence of a written sentencing order. See Joseph v. Glunt, 96 A.3d 365 (Pa.Super. 2014), appeal denied, 627 Pa. 774, 101 A.3d 787 (2014) (holding DOC has continuing authority to detain petitioner, even without written sentencing order).

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committed three or more “violent felonies”) and Welch v. United States,

___ U.S. ___, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016) (holding Johnson

stated new substantive rule that applies to cases on collateral review).

Nevertheless, Johnson and Welch do not satisfy a PCRA exception if the

petitioner was sentenced under state law. See Commonwealth v. Spotz,

____ Pa. ___, 171 A.3d 675 (2017) (holding neither Johnson nor Welch

affords appellant relief because he was sentenced under state law; at this

time, Johnson and Welch apply only to prisoners sentenced under relevant

federal statute). Therefore, the court properly denied collateral relief.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/4/18

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