Com. v. Miller, K.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

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v. :

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KEVIN J. MILLER :

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Appellant : No. 1040 MDA 2023

Appeal from the PCRA Order Entered January 5, 2023 In the Court of Common Pleas of Dauphin County Criminal Division at No: CP-22-CR-0001074-1997

BEFORE: STABILE, J., SULLIVAN, J., and STEVENS, P.J.E.* MEMORANDUM BY STABILE, J.: FILED: JULY 22, 2024 Kevin J. Miller (petitioner) seeks review of an order of the Court of Common Pleas of Dauphin County dismissing the claim that he was unlawfully placed on probation. He argues that he timely asserted his claim in a petition for writ of habeas corpus, which was erroneously treated as an untimely petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541- 9546 (PCRA). We affirm.

Petitioner pleaded guilty on February 10, 1998, to five counts – rape (count 1); involuntary deviate sexual intercourse (IDSI) (count 2); statutory sexual assault (count 3); indecent assault (count 5); and corruption of minors (count 7). No written sentencing order appears in the record, but the terms

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* Former Justice specially assigned to the Superior Court.

of the sentence may be gleaned from the transcript of the sentencing hearing held on November 16, 1998:

[Commonwealth]: [T]he defendant pled guilty to a negotiated plea agreement that he was to receive five years from Your Honor, which represents the mandatory minimum. The maximum was left up to the Court.

I believe the Court has indicated, at least during one of the past proceedings, that I believe 20 years was the maximum, plus an additional 20 years of probation on top of that was what the Court had indicated in the past[.]

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[Defense Counsel]: My understanding is the Court intends to sentence in accordance with the plea agreement . . . . my recollection from my notes concerning the sentence was a 5-yearminimum sentence at Count Number 1 to a 20-year maximum sentence, and a concurrent 20-year-probationary sentence at Count Number 2[.]

[THE COURT]: With one caveat. That is concurrent for the purposes of this sentencing only.

[Defense Counsel]: Right.

[THE COURT]: If there were a violation, then the concurrency would resolve . . . . At Count No. 1, the charge of rape, the child being less than 13 years of age, a felony of the first degree, the defendant is to pay the costs of prosecution, a fine of $5,000, undergo a period of incarceration in the state correctional facility, the minimum of which is 5 years, the maximum of which is 20 years.

As a special condition of any parole that may be granted to him by the State Board of Probation and Parole, to be eligible for parole, he must have successfully completed whatever treatment courses prescribed for him after comprehensive assessment for sexual offenses involving children, and he must receive a certification of a board certified psychiatrist that, in that professional’s opinion, he does not present a risk for parole[.]

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Count Number 2, involuntary deviate sexual intercourse with a child less than 13, a felony of the first degree, pay the costs of prosecution, a fine of $5,000, undergo a period of probation, which is 20 years in duration and shall commence upon the date of any parole granted to the defendant.

It shall run concurrent with that parole time, and all of the conditions attached at Count Number 1 will likewise attach at Count Number 2.

Additionally, the concurrency of the sentence at Count Number 2, if there were to be a violation of the parole or probationary terms, shall be vacated, and the defendant shall be subject to consecutive sentences with regards to the sentence imposed at Count Number 1.

N.T., Sentencing Hearing, 11/16/1998, at 3-11 (emphasis added).

In summary, as to count 1, petitioner received a prison term of five to 20 years. As to count 2, petitioner received 20 years of probation, concurrent to any term of parole granted on count 1. The sentences as to the remaining counts were concurrent to count 1 and have since been completed. No direct appeal was filed.

Petitioner filed his first PCRA petition on December 15, 1999, asserting a number of ineffective assistance of counsel claims. The petition was denied. A number of additional PCRA petitions were filed thereafter. The denial of one such petition was appealed, and on review, this Court affirmed, finding in relevant part that petitioner was given notice in 2014 that the trial court had construed the probationary term of his sentence as consecutive “to the entire 5-20 year sentence.” Commonwealth v. Miller, No. 1889 MDA 2014, at 2 (Pa. Super. filed December 3, 2014) (unpublished memorandum) (quoting PCRA Court Opinion, 12/3/2014, at 1).

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Once more, in 2019, petitioner filed a PCRA petition to contest the imposition of probation. He argued that he had fully served his sentence as of November 16, 2018. By that date, petitioner had spent all 20 years of the maximum term in custody on count 1, having never been granted parole. According to petitioner, his claim was timely because he satisfied the “newly discovered fact” exception under section 9545(b)(2) of the PCRA. The new fact he asserted was that he learned his probation for count 2 would begin to run on the date that his prison term ended, and his PCRA petition was filed within a year of that date.

At a PCRA hearing held on April 23, 2019, the trial judge who imposed the sentence on November 16, 1998, testified that he had intended for petitioner to serve 20 years of probation as to count 2 regardless of when, or whether, he was granted parole as to the sentence on count 1:

Now, I will be candid to say that I typically would use the word "parole" as the triggering event to cause the concomitancy of both the parole and the probation; in other words the triggering event to cause probation to go into effect. Had I even envisioned that [petitioner] would serve his entire 20 years and not gain parole eligibility I might have said it different.

But the intent was that whenever he got out and his own action by not making himself eligible for parole really is of his own doing. But -- and it could have been five years; it could have been 10, 12; it could have been 15. It turns out it's the whole 20.

That doesn't defeat my intent that for the separate offense of IDSI upon that child he was going to have a 20-year period of probation whenever he got out of prison. That's the beginning and end of it right there.

N.T., PCRA Hearing, 4/23/2019, at 14 (emphasis added).

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The PCRA petition was denied on January 17, 2020, and the denial of that order was affirmed on timeliness grounds. See Commonwealth v. Miller, No. 235 MDA 2020 (Pa. Super. filed January 25, 2021) (unpublished memorandum). This Court reasoned that the commencement date of petitioner’s probation was not a “new fact” that satisfied an exception to the PCRA’s time-bar because he could have discovered it sooner through the exercise of due diligence. See id., at 6.

In its memorandum, this Court stressed that petitioner never sought clarification regarding his probationary term as to count 2 throughout the 20- year prison term imposed as to count 1. Further, petitioner had been advised in 2015 that his probation would begin to run after his release from prison, and no inquiry was made despite that prompting. See id, at 7. Since the PCRA requires postconviction claims to be filed within one year from the date that a judgment of sentence has become final, and no exceptions applied, petitioner’s claim, filed more than 20 years after that date, was properly dismissed as untimely for lack of an applicable exception. See id., at 8.

Petitioner’s most recent challenge to his probationary sentence was filed on September 12, 2022, and it was styled as a petition for writ of habeas corpus. He contended that his claim was not cognizable under the PCRA, making its jurisdictional time-bar inapplicable. The petition for habeas corpus

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relief was denied on June 30, 2023, upon being construed as an untimely PCRA petition.1 Petitioner timely appealed that order, nunc pro tunc, on July 18, 2023.

In his brief, he now argues that his petition for writ of habeas corpus was the proper vehicle for the present claim, and that the claim is meritorious because he cannot be compelled to serve a probationary term that is contingent upon the commencement of parole that was never granted. See Appellant’s Brief, at 4.

The Commonwealth argues in response that petitioner’s claim was correctly treated as a PCRA petition, and that the claim is barred both due to being untimely and previously litigated in earlier postconviction proceedings. See Commonwealth’s Answer Brief, at 6-11. In addition, the Commonwealth asserts that the petition is without merit because the probationary term for count 2 was not contingent on parole being granted as count 1. We note that there is no dispute among the parties that, if petitioner could only raise his present claim by way of a PCRA petition, then it would be patently untimely and barred, as petitioner has not raised any exceptions to the PCRA’s timing provisions.

“Where a person is restrained by virtue of sentence after conviction for a criminal offense, the writ of habeas corpus shall not be available if a remedy

may be had by post-conviction hearing proceedings authorized by law.” 42

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1 Prior to the order of dismissal, a notice of intent to dismiss the petition was filed, and petitioner submitted a response.

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Pa.C.S.A. § 6503(b). However, the PCRA is the “sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when this subchapter takes effect, including habeas corpus[.]” 42 Pa.C.S.A. § 9542. “Unless the PCRA could not provide for a potential remedy, the PCRA statute subsumes the writ of habeas corpus.” Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013).

“To be eligible for relief a petitioner must be “currently serving a sentence of imprisonment, probation or parole.” 42 Pa.C.S.A. § 9543(a)(1)(i). “[A] legality of sentence challenge to probation must be leveled in a PCRA petition.” Commonwealth v. Concordia, 97 A.3d 366, 373 (Pa. Super. 2014).

“[T]he timeliness of a PCRA petition is . . . a jurisdictional requisite.”

Commonwealth v. Zeigler, 148 A.3d 849, 853 (Pa. Super. 2016). “A PCRA petition, including a second or subsequent one, must be filed within one year of the date the petitioner's judgment of sentence became final, unless he pleads and proves one of the three exceptions outlined in 42 Pa.C.S. § 9545(b)(1).” Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012).

If a petitioner fails to plead and prove an enumerated exception to the PCRA’s time-bar, then the merits of the petition may not be considered. See Commonwealth v. Watts, 23 A.3d 980, 983 (Pa. 2011). Where claims are cognizable under the PCRA, a petitioner “cannot escape the PCRA time-bar by titling his petition or motion as a writ of habeas corpus.” Taylor, 65 A.3d at 466. Further, a claim is previously litigated and unreviewable under the PCRA

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if “the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue.” See 42 Pa.C.S.A. § 9544(a)(2). An issue has also been previously litigated if “it has been raised and decided in a proceeding collaterally attacking the conviction or sentence.” Id., at § 9544(a)(3).

Here, petitioner was sentenced in 1998, and the judgment of sentence became final on December 16, 1998. See Miller, No. 235 MDA 2020, at 5. On count 1, he was sentenced to a prison term of five to 20 years; on count 2, he was sentenced to “a period of probation, which is 20 years in duration[.]. N.T., Sentencing Hearing, 11/16/1998, at 6. Petitioner fully served the 20- year prison term as to count 1 on November 16, 2018, and he was placed on probation at that time. His petition for writ of habeas corpus was not filed until more than one year later, on September 12, 2022.

Contrary to petitioner’s stance, his claim is cognizable under the PCRA and subject to the statute’s timing restrictions. In essence, he is claiming that his probationary tail is an illegal sentence imposed after his term had already been fully served. These circumstances are nearly identical to those in Commonwealth v. Harden, No. 2147 EDA 2020 (Pa. Super. August 13, 2021) (unpublished memorandum), where we identified that same issue as an illegal sentencing claim cognizable under the PCRA.

Since petitioner’s claim is one for which the PCRA affords relief, it is patently untimely, and he has not attempted to establish an exception to the PCRA’s timeliness requirements. Petitioner may not avoid the PCRA’s

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jurisdictional time-bar by styling his filing as a petition for writ of habeas corpus. As a result, his filing was properly treated as a successive petition for PCRA relief and then dismissed on timeliness grounds. The claim was also correctly barred because the issue was previously presented and fully litigated as a ground for PCRA relief, and the dismissal of that claim was affirmed. See Miller, No. 235 MDA 2020, at a 4-7. Thus, the order on review must be upheld.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 7/22/2024