J-S70035-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : NASSIR WHITE, : : Appellant : No. 23 EDA 2016
Appeal from the PCRA Order December 15, 2015 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0013498-2007
BEFORE: OLSON, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 15, 2016
Nassir White (“White”), pro se, appeals from the Order denying his
second Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”).1 We affirm.
On July 21, 2008, White pled guilty to third-degree murder, possession
of a firearm prohibited and recklessly endangering another person
(“REAP”).2 On that same date, and in accordance with the plea agreement,
the trial court sentenced White to an aggregate prison term of 22½ to 45
years in prison. White filed no direct appeal of his judgment of sentence.
White filed a timely first PCRA Petition, which the trial court dismissed.
This Court affirmed the Order of the PCRA court. See Commonwealth v.
White, 32 A.3d 842 (Pa. Super. 2011) (unpublished memorandum).
1 42 Pa.C.S.A. §§ 9541-9546. 2 See 18 Pa.C.S.A. §§ 2502, 6105, 2705. J-S70035-16
On April 8, 2014, White filed a pro se Petition for writ of habeas
corpus. In his Petition, White asserted that the trial court’s written
sentencing Order fails to set forth the statutory authority for White’s
sentence and, therefore, his sentence is illegal. Petition for Writ of Habeas
Corpus at 5, 6 (unnumbered). On June 17, 2015, the PCRA court issued
Notice of its intention to dismiss White’s PCRA Petition as untimely filed. In
a Memorandum Order and Opinion filed on December 15, 2015, the PCRA
court opined that White’s claim was not cognizable under the PCRA. PCRA
Court Opinion, 12/15/15, at 2. Nevertheless, the PCRA court denied White
relief. White subsequently filed the instant timely appeal.
White presents the following claims for our review:
(1) Did the [PCRA c]ourt err in treating [White’s] Writ of Habeas Corpus Ad Subjiciendum as a PCRA [Petition], when the issue raised is not cognizable under the PCRA statute?
(2) Did the [PCRA] court err in transferring [White’s] Writ of Habeas Corpus Ad Subjiciendum from the Civil Trial Division to the Criminal Division, when [the] Writ of Habeas Corpus is civil in nature?
(3) Did the [PCRA c]ourt err when it failed to specify or notify on the record[,] or in [its] Sentencing [O]rder/Judgment of sente[n]ce a statute or provision authorizing the sentence[,] imposed on [White], which would make the Sentencing Order/Judgment of sentence invalid and not a binding document, which has caused [White’s] unlawful continued restraint?
Brief for Appellant at 3 (issues renumbered).3
3 In the Argument section of his brief, White addresses these claims together.
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White claims that the court of common pleas improperly transferred
his habeas corpus Petition to the criminal division, where it was then
considered as a Petition for relief under the PCRA. Id. at 7. White contends
that this transfer violated his right to due process. Id. White further argues
that he is entitled to habeas corpus relief, as the trial court failed to set forth
the statutory authorization for its sentence in the written sentencing Order,
and unlawfully imposed a “mandatory minimum” sentence. Id. at 7-9.
Before addressing the merits of White’s underlying claim, we first must
determine whether White’s Petition is cognizable under the PCRA. See
Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa. 1998) (stating that
both the PCRA and the state habeas corpus statute contemplate that the
PCRA subsumes the writ of habeas corpus in circumstances where the PCRA
provides a remedy for the claim); see also 42 Pa.C.S.A. § 9542 (providing
that claims that can be brought under the PCRA must be brought under that
Act). The PCRA court, relying upon this Court’s decision in Joseph v. Glunt,
96 A.3d 365 (Pa. Super. 2014), concluded that White’s claim was not
cognizable under the PCRA. PCRA Court Opinion, 12/15/15, at 2. The PCRA
court’s reliance upon Glunt is misplaced.
In Glunt, the defendant claimed that the Department of Corrections
(“DOC”) was without authority to detain him based upon the lack of any
written sentencing order. Glunt, 96 A.3d at 368. This Court explained that
“a claim that a defendant’s sentence is illegal due to the inability of the DOC
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to produce a written sentencing order related to [his] judgment of sentence
constitutes a claim legitimately sounding in habeas corpus.” Id. (citation
and internal quotation marks omitted).
Here, White acknowledges the existence of the written sentencing
Order. See Brief for Appellant at 9 (stating that White “produced a copy of
the sente[n]cing order/judgment of sentence”). In his Petition, White
challenges the lack of statutory authorization for his sentence, and the
sentencing judge’s failure to set forth the statutory authorization for the
sentence on the record or in the sentencing Order. Id. at 8-9. White’s
claim implicates the legality of his sentence, a claim that is cognizable under
the PCRA. See Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super.
2014) (stating that “[i]f no statutory authorization exists for a particular
sentence, that sentence is illegal and subject to correction”) (citation
omitted); Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013)
(recognizing that “[the PCRA] provides for an action by which ... persons
serving illegal sentences may obtain collateral relief”); see also
Commonwealth v. Hackett, 956 A.2d 978, 986 (Pa. 2008) (explaining that
when considering what types of claims are cognizable under the PCRA, “the
scope of the PCRA eligibility requirements should not be narrowly confined to
its specifically enumerated areas of review.”). Accordingly, we review the
denial of White’s Petition within the context of the PCRA.
-4- J-S70035-16
Before we can address the merits of White’s claims, we must
determine whether White timely filed his PCRA Petition. “[A] court may
entertain a challenge to the legality of the sentence[,] so long as the court
has jurisdiction to hear the claim. In the PCRA context, jurisdiction is tied to
the filing of a timely PCRA petition.” Commonwealth v. Berry, 877 A.2d
479, 482 (Pa. Super. 2005) (en banc). “Although legality of sentence is
always subject to review within the PCRA, claims must still first satisfy the
PCRA’s time limits or one of the exceptions thereto.” Commonwealth v.
Fowler, 930 A.2d 586, 592 (Pa. Super. 2007).
A PCRA petition must be filed within one year of the date the judgment
of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). The three statutory
exceptions to the one-year filing requirement are for newly discovered facts,
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J-S70035-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : NASSIR WHITE, : : Appellant : No. 23 EDA 2016
Appeal from the PCRA Order December 15, 2015 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0013498-2007
BEFORE: OLSON, OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 15, 2016
Nassir White (“White”), pro se, appeals from the Order denying his
second Petition for relief filed pursuant to the Post Conviction Relief Act
(“PCRA”).1 We affirm.
On July 21, 2008, White pled guilty to third-degree murder, possession
of a firearm prohibited and recklessly endangering another person
(“REAP”).2 On that same date, and in accordance with the plea agreement,
the trial court sentenced White to an aggregate prison term of 22½ to 45
years in prison. White filed no direct appeal of his judgment of sentence.
White filed a timely first PCRA Petition, which the trial court dismissed.
This Court affirmed the Order of the PCRA court. See Commonwealth v.
White, 32 A.3d 842 (Pa. Super. 2011) (unpublished memorandum).
1 42 Pa.C.S.A. §§ 9541-9546. 2 See 18 Pa.C.S.A. §§ 2502, 6105, 2705. J-S70035-16
On April 8, 2014, White filed a pro se Petition for writ of habeas
corpus. In his Petition, White asserted that the trial court’s written
sentencing Order fails to set forth the statutory authority for White’s
sentence and, therefore, his sentence is illegal. Petition for Writ of Habeas
Corpus at 5, 6 (unnumbered). On June 17, 2015, the PCRA court issued
Notice of its intention to dismiss White’s PCRA Petition as untimely filed. In
a Memorandum Order and Opinion filed on December 15, 2015, the PCRA
court opined that White’s claim was not cognizable under the PCRA. PCRA
Court Opinion, 12/15/15, at 2. Nevertheless, the PCRA court denied White
relief. White subsequently filed the instant timely appeal.
White presents the following claims for our review:
(1) Did the [PCRA c]ourt err in treating [White’s] Writ of Habeas Corpus Ad Subjiciendum as a PCRA [Petition], when the issue raised is not cognizable under the PCRA statute?
(2) Did the [PCRA] court err in transferring [White’s] Writ of Habeas Corpus Ad Subjiciendum from the Civil Trial Division to the Criminal Division, when [the] Writ of Habeas Corpus is civil in nature?
(3) Did the [PCRA c]ourt err when it failed to specify or notify on the record[,] or in [its] Sentencing [O]rder/Judgment of sente[n]ce a statute or provision authorizing the sentence[,] imposed on [White], which would make the Sentencing Order/Judgment of sentence invalid and not a binding document, which has caused [White’s] unlawful continued restraint?
Brief for Appellant at 3 (issues renumbered).3
3 In the Argument section of his brief, White addresses these claims together.
-2- J-S70035-16
White claims that the court of common pleas improperly transferred
his habeas corpus Petition to the criminal division, where it was then
considered as a Petition for relief under the PCRA. Id. at 7. White contends
that this transfer violated his right to due process. Id. White further argues
that he is entitled to habeas corpus relief, as the trial court failed to set forth
the statutory authorization for its sentence in the written sentencing Order,
and unlawfully imposed a “mandatory minimum” sentence. Id. at 7-9.
Before addressing the merits of White’s underlying claim, we first must
determine whether White’s Petition is cognizable under the PCRA. See
Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa. 1998) (stating that
both the PCRA and the state habeas corpus statute contemplate that the
PCRA subsumes the writ of habeas corpus in circumstances where the PCRA
provides a remedy for the claim); see also 42 Pa.C.S.A. § 9542 (providing
that claims that can be brought under the PCRA must be brought under that
Act). The PCRA court, relying upon this Court’s decision in Joseph v. Glunt,
96 A.3d 365 (Pa. Super. 2014), concluded that White’s claim was not
cognizable under the PCRA. PCRA Court Opinion, 12/15/15, at 2. The PCRA
court’s reliance upon Glunt is misplaced.
In Glunt, the defendant claimed that the Department of Corrections
(“DOC”) was without authority to detain him based upon the lack of any
written sentencing order. Glunt, 96 A.3d at 368. This Court explained that
“a claim that a defendant’s sentence is illegal due to the inability of the DOC
-3- J-S70035-16
to produce a written sentencing order related to [his] judgment of sentence
constitutes a claim legitimately sounding in habeas corpus.” Id. (citation
and internal quotation marks omitted).
Here, White acknowledges the existence of the written sentencing
Order. See Brief for Appellant at 9 (stating that White “produced a copy of
the sente[n]cing order/judgment of sentence”). In his Petition, White
challenges the lack of statutory authorization for his sentence, and the
sentencing judge’s failure to set forth the statutory authorization for the
sentence on the record or in the sentencing Order. Id. at 8-9. White’s
claim implicates the legality of his sentence, a claim that is cognizable under
the PCRA. See Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super.
2014) (stating that “[i]f no statutory authorization exists for a particular
sentence, that sentence is illegal and subject to correction”) (citation
omitted); Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013)
(recognizing that “[the PCRA] provides for an action by which ... persons
serving illegal sentences may obtain collateral relief”); see also
Commonwealth v. Hackett, 956 A.2d 978, 986 (Pa. 2008) (explaining that
when considering what types of claims are cognizable under the PCRA, “the
scope of the PCRA eligibility requirements should not be narrowly confined to
its specifically enumerated areas of review.”). Accordingly, we review the
denial of White’s Petition within the context of the PCRA.
-4- J-S70035-16
Before we can address the merits of White’s claims, we must
determine whether White timely filed his PCRA Petition. “[A] court may
entertain a challenge to the legality of the sentence[,] so long as the court
has jurisdiction to hear the claim. In the PCRA context, jurisdiction is tied to
the filing of a timely PCRA petition.” Commonwealth v. Berry, 877 A.2d
479, 482 (Pa. Super. 2005) (en banc). “Although legality of sentence is
always subject to review within the PCRA, claims must still first satisfy the
PCRA’s time limits or one of the exceptions thereto.” Commonwealth v.
Fowler, 930 A.2d 586, 592 (Pa. Super. 2007).
A PCRA petition must be filed within one year of the date the judgment
of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). The three statutory
exceptions to the one-year filing requirement are for newly discovered facts,
interference by a government official, and a newly-recognized constitutional
right. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
Here, White’s judgment of sentence was entered on July 21, 2008, and
became final 30 days later, i.e., August 20, 2008, when the time for filing a
direct appeal expired. See 42 Pa.C.S.A. § 9545(b)(3) (stating that a
judgment of sentence becomes final at the conclusion of direct review,
including discretionary review in this Court or the United States Supreme
Court, or at the expiration of time for seeking such review). White’s present
Petition, filed on April 8, 2014, is facially untimely. Our review further
discloses that White’s Petition did not assert any statutory exceptions to the
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PCRA’s timeliness requirement. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
Because White did not timely file his PCRA Petition, the PCRA court lacked
jurisdiction over White’s Petition. We therefore affirm the Order of the PCRA
court, which denied White’s request for relief.4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/15/2016
4 See Commonwealth v. Clouser, 998 A.2d 656, 661, n.3 (Pa. Super. 2010) (recognizing that “[i]t is well-settled that this Court may affirm on any basis”).
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