Com. v. Jones, B.

Superior Court of Pennsylvania·Decided November 21, 2016·No. 87 WDA 2016·Unpublished

Opinion

J-S86012-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRAD E. JONES : : Appellant : No. 87 WDA 2016

Appeal from the PCRA Order December 10, 2015 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0014284-2001

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

MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 21, 2016

Appellant Brad E. Jones appeals pro se from the Order entered in the

Court of Common Pleas of Allegheny County on December 10, 2015, denying

his “Writ of Habeas Corpus Ad-Subjiciendum” (hereinafter “Writ of Habeas

Corpus”)1 as an untimely, serial petition filed pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

Appellant shot and killed his friend after a night of drinking and

consuming drugs in 2001. Following a jury trial, Appellant was convicted of ____________________________________________

1 A writ of habeas corpus ad subjiciendum is defined as “[a] writ directed to someone detaining another person and commanding that the detainee be brought to court.” Joseph v. Glunt, 96 A.3d 365, 367, appeal denied, 627 Pa. 774, 101 A.3d 787 (2014) citing BLACK’S LAW DICTIONARY 778 (9th ed. 2009).

* Former Justice specially assigned to the Superior Court. J-S86012-16

third-degree murder, corruption of minors, abuse of a corpse, carrying a

firearm without a license, and criminal conspiracy on March 14, 2002.

Appellant was sentenced to an aggregate term of twenty-one and one-half

years to forty-three years in prison, and this Court dismissed his direct

appeal on April 9, 2003, for his failure to file an appellate brief. Numerous

petitions filed pursuant to the PCRA followed.

On October 16, 2015, Appellant filed the instant pro se Writ of Habeas

Corpus wherein he argued, inter alia, that “the continued validity of [his]

sentence under 42 Pa.C.S.A. § 9712 violates the due process and equal

protection clauses of the United States Constitution and/or Article 1 Section

9 of the Pennsylvania Constitution.” See Writ of Habeas Corpus, at 2. The

trial court treated this filing as Appellant’s fifth PCRA petition and issued a

Pa.R.Crim.P. 907 notice of its intent to dismiss the petition on October 27,

2015. Therein, the trial court indicated that this pleading had been filed

untimely, no exception to the PCRA time-bar applied, and Alleyne v. United

States, ___ U.S. ____, 133 S.Ct. 2151, 186 L.Ed. 314 (2013) was not

retroactively applicable to Appellant’s case.

Appellant filed a pro se Response to Notice of Intent to Dismiss on

November 17, 2015, wherein he conceded that his “claim is not cognizable

under PCRA because he is not challenging the legality or discretionary aspect

of the actual sentence as imposed” and “his sentence was lawful as originally

imposed.” See Response to Notice of Intent to Dismiss, filed 11/17/15, at

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1-2. The trial court issued an order dismissing Appellant’s petition on

December 10, 2015, and Appellant filed a timely notice of appeal on January

8, 2016, as well as a timely concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b) wherein he raised three errors.

Herein, Appellant presents a single question for our review:

I. Did the Lower Court err in construing the Habeas petition as a PCRA?

Brief for Appellant at iii.

In a disjointed discussion, Appellant essentially maintains the trial

court abused its discretion in determining his contentions are cognizable

under the PCRA, because he is being unlawfully detained and denied “open

access to the court” in light of the fact that our Supreme Court has declared

42 Pa.C.S.A. § 9712 to be unconstitutional. Brief for Appellant at 3-8. This

claim is meritless.

Initially, we find that the trial court properly treated Appellant's Writ of

Habeas Corpus as a PCRA petition. Under established Pennsylvania

precedent, “the PCRA is intended to be the sole means of achieving post-

conviction relief.” Commonwealth v. Taylor 65 A.3d 462, 465 (Pa.Super.

2013)(citations omitted); Commonwealth v. Descardes, ___ Pa. ____,

____, 136 A.3d 493, 498 (2016) (“This Court has construed [42 Pa.C.S. §

9542] as manifesting the legislature's intent that the PCRA be the sole

means by which an appellant may collaterally challenge his conviction.”).

Thus, “[u]nless the PCRA could not provide for a potential remedy, the PCRA

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statute subsumes the writ of habeas corpus.” Taylor, supra at 465-466

(citations omitted). Furthermore, “[i]ssues that are cognizable under the

PCRA must be raised in a timely PCRA petition and cannot be raised in a

habeas corpus petition. Taylor, at 466; Descardes, supra ___ Pa. at ____,

136 A.3d at 501 (stating that where a claim is cognizable under the PCRA,

the PCRA is the only method by which one may obtain collateral review”).

Finally, “a defendant cannot escape the PCRA time-bar by titling his petition

or motion as a writ of habeas corpus.” Taylor, supra at 466.

Herein, Appellant contends that due to his “unique circumstances” he

is serving an illegal sentence because the third-degree murder statute under

which he previously had been convicted was declared unconstitutional “after

the PCRA time limitations attached.” Brief for Appellant at 3-6. While

Appellant does not specifically cite to Alleyne, this Court has held that

claims asserted thereunder implicate the legality of one’s sentence.

Accordingly, Appellant’s argument is cognizable under the PCRA, not under

habeas corpus law. See Commonwealth v. Newman, 99 A.3d 86, 90

(Pa.Super. 2014) (en banc); Commonwealth v. Ruiz, 131 A.3d 54, 60

(Pa.Super. 2015) (Alleyne claim challenges legality of sentence which

petitioner could raise in timely filed PCRA petition where his direct appeal

had been pending when Alleyne was decided). Therefore, the trial court

properly treated Appellant’s Writ of Habeas Corpus as a PCRA petition, and

we must next determine whether the petition is properly before this Court.

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“The question of whether a petition is timely raises a question of law.

Where the petitioner raises questions of law, our standard of review is de

novo and our scope of review is plenary.” Id. (citations omitted). All PCRA

petitions must be filed within one year of the date upon which the judgment

of sentence became final, unless one of the statutory exceptions set forth in

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies, and the petitioner bears the

burden to plead and prove an applicable statutory exception. If the petition

is found to be untimely, and the petitioner has not pled and proven an

exception, the petition must be dismissed without a hearing because

Pennsylvania courts are without jurisdiction to consider the merits of the

petition. Commonwealth v.

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