J. S15029/17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : DANA EVERETT YOUNG : APPELLANT : : : No. 1668 EDA 2016
Appeal from the PCRA Order May 10, 2016 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0000560-1983 CP-39-CR-0000561-1983 CP-39-CR-0000614-1983
BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED APRIL 13, 2017
Appellant, Dana Everett Young, appeals pro se from the May 10, 2016
Order entered in the Court of Common Pleas of Lehigh County dismissing his
Petition for Habeas Corpus Relief. We conclude Appellant’s habeas Petition
is actually an untimely eighth Petition filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we
affirm on the basis that Appellant’s PCRA Petition is untimely and this Court,
thus, lacks jurisdiction to review the Petition.
In September 1983, a jury found Appellant guilty of several offenses
based on sexual assaults he committed within ten days of each other against
two women in the same town. On September 9, 1985, the trial court
sentenced Appellant to an aggregate term of 21 to 42 years’ incarceration. J. S15029/17
Appellant timely appealed to this Court, which remanded for an evidentiary
hearing on the issue of ineffective assistance of counsel.1 The trial court
denied relief on December 1, 1985, and Appellant did not file a direct
appeal. Thus, Appellant’s Judgment of Sentence became final on December
31, 1985. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P 903(a).
Between 1995 and 2008, Appellant filed seven PCRA Petitions and the
PCRA court dismissed all of them. On March 11, 2014, Appellant filed a pro
se Petition for Habeas Corpus Relief, which the lower court dismissed as an
untimely PCRA Petition. Upon appellate review, this Court concluded that
the lower court erroneously treated the Petition as a PCRA Petition, but
affirmed the lower court’s dismissal of the Petition on alternate grounds.
Commonwealth v. Young, No. 2426 EDA 2014 (Pa. Super. filed July 7,
2015) (unpublished memorandum).
On February 8, 2016, Appellant filed the instant pro se Petition for
Habeas Corpus Relief, which the trial court treated as Appellant’s eighth
PCRA Petition. On April 12, 2016, the PCRA court issued notice of its intent
to dismiss without a hearing pursuant to Pa.R.Crim.P. 907. Appellant
responded pro se on April 26, 2016. On May 10, 2016, the PCRA court
dismissed Appellant’s Petition as untimely.
1 At the time, ineffective assistance of counsel claims could be raised on direct appeal, because the issue arose several years prior to Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002), which requires that ineffectiveness claims be raised in a PCRA petition.
-2- J. S15029/17
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant presents two issues for our review:
1. Whether the trial court abused its discretion in dismissing Appellant’s Petition for Writ of Habeas Corpus Ad Subjiciendum where the verdict announced by the [c]ourt of guilty on the kidnapping offense was in error in that the court did not have jurisdiction of the matter, where the Criminal Information filed in this action were [sic] fatally defective since if [sic] failed to recite all of the essential elements of the offense and failed to inform Appellant of the precise charge he was required to defend against at trial?
2. Whether Appellant is illegally confined based on the verdict and sentence being vitiated and non-existent as a result of the fatally defective Criminal Information and eliminates all questions of waiver, timeliness and due diligence as bars to the relief sought?
Appellant’s Brief at 3.
As an initial matter, we find that the PCRA court properly reviewed
Appellant’s Petition for Habeas Corpus Relief pursuant to the PCRA. This
Court has “repeatedly held that the PCRA provides the sole means for
obtaining collateral review and that any petition filed after the judgment of
sentence becomes final will be treated as a PCRA petition.”
Commonwealth v. Kubis, 808 A.2d 196, 199 (Pa. Super. 2002).
Specifically, the PCRA provides:
This subchapter provides for an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral relief. The action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when
-3- J. S15029/17
this subchapter takes effect, including habeas corpus and coram nobis.
42 Pa.C.S. § 9542. Moreover, our Supreme Court has stated, “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.” Commonwealth v. Hackett, 956 A.2d
978, 985 (Pa. 2008)
In the instant case, Appellant challenges the trial court’s jurisdiction
and the legality of Appellant’s sentence alleging that Appellant’s criminal Bill
of Information was defective. These claims are cognizable under the PCRA
and are, therefore, properly raised in a PCRA Petition. See 42 Pa.C.S. §
9543(a)(2)(vii) and (viii); see also Commonwealth v. Stout, 978 A.2d
984, 987 (Pa. Super. 2009) (claim that court lacked jurisdiction is cognizable
under the PCRA); Commonwealth v. Jackon, 30 A.3d 516, 521 (Pa.
Super. 2011) (legality of sentence is a cognizable issue under the PCRA).
This Court has clearly stated that an application for a writ of habeas corpus
cannot be used as a “tactical choice to evade the timeliness requirements of
the PCRA.” Stout, supra at 988. Accordingly, the PCRA court properly
reviewed Appellant’s filing under the PCRA and we will refer to it as a PCRA
petition hereafter.
We review the denial of a PCRA Petition to determine whether the
record supports the PCRA court’s findings and whether its Order is otherwise
free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
-4- J. S15029/17
2014). There is no right to a PCRA hearing; a hearing is unnecessary where
the PCRA court can determine from the record that there are no genuine
issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.
Super. 2008).
Before addressing the merits of Appellant’s claims, we must first
determine whether we have jurisdiction to entertain the underlying PCRA
Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)
(explaining that the timeliness of a PCRA Petition is a jurisdictional
requisite).
Under the PCRA, any Petition “including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes
final[.]” 42 Pa.C.S. § 9545(b)(1). A Judgment of Sentence becomes final
Free access — add to your briefcase to read the full text and ask questions with AI
J. S15029/17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : DANA EVERETT YOUNG : APPELLANT : : : No. 1668 EDA 2016
Appeal from the PCRA Order May 10, 2016 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0000560-1983 CP-39-CR-0000561-1983 CP-39-CR-0000614-1983
BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED APRIL 13, 2017
Appellant, Dana Everett Young, appeals pro se from the May 10, 2016
Order entered in the Court of Common Pleas of Lehigh County dismissing his
Petition for Habeas Corpus Relief. We conclude Appellant’s habeas Petition
is actually an untimely eighth Petition filed pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After careful review, we
affirm on the basis that Appellant’s PCRA Petition is untimely and this Court,
thus, lacks jurisdiction to review the Petition.
In September 1983, a jury found Appellant guilty of several offenses
based on sexual assaults he committed within ten days of each other against
two women in the same town. On September 9, 1985, the trial court
sentenced Appellant to an aggregate term of 21 to 42 years’ incarceration. J. S15029/17
Appellant timely appealed to this Court, which remanded for an evidentiary
hearing on the issue of ineffective assistance of counsel.1 The trial court
denied relief on December 1, 1985, and Appellant did not file a direct
appeal. Thus, Appellant’s Judgment of Sentence became final on December
31, 1985. See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P 903(a).
Between 1995 and 2008, Appellant filed seven PCRA Petitions and the
PCRA court dismissed all of them. On March 11, 2014, Appellant filed a pro
se Petition for Habeas Corpus Relief, which the lower court dismissed as an
untimely PCRA Petition. Upon appellate review, this Court concluded that
the lower court erroneously treated the Petition as a PCRA Petition, but
affirmed the lower court’s dismissal of the Petition on alternate grounds.
Commonwealth v. Young, No. 2426 EDA 2014 (Pa. Super. filed July 7,
2015) (unpublished memorandum).
On February 8, 2016, Appellant filed the instant pro se Petition for
Habeas Corpus Relief, which the trial court treated as Appellant’s eighth
PCRA Petition. On April 12, 2016, the PCRA court issued notice of its intent
to dismiss without a hearing pursuant to Pa.R.Crim.P. 907. Appellant
responded pro se on April 26, 2016. On May 10, 2016, the PCRA court
dismissed Appellant’s Petition as untimely.
1 At the time, ineffective assistance of counsel claims could be raised on direct appeal, because the issue arose several years prior to Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002), which requires that ineffectiveness claims be raised in a PCRA petition.
-2- J. S15029/17
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant presents two issues for our review:
1. Whether the trial court abused its discretion in dismissing Appellant’s Petition for Writ of Habeas Corpus Ad Subjiciendum where the verdict announced by the [c]ourt of guilty on the kidnapping offense was in error in that the court did not have jurisdiction of the matter, where the Criminal Information filed in this action were [sic] fatally defective since if [sic] failed to recite all of the essential elements of the offense and failed to inform Appellant of the precise charge he was required to defend against at trial?
2. Whether Appellant is illegally confined based on the verdict and sentence being vitiated and non-existent as a result of the fatally defective Criminal Information and eliminates all questions of waiver, timeliness and due diligence as bars to the relief sought?
Appellant’s Brief at 3.
As an initial matter, we find that the PCRA court properly reviewed
Appellant’s Petition for Habeas Corpus Relief pursuant to the PCRA. This
Court has “repeatedly held that the PCRA provides the sole means for
obtaining collateral review and that any petition filed after the judgment of
sentence becomes final will be treated as a PCRA petition.”
Commonwealth v. Kubis, 808 A.2d 196, 199 (Pa. Super. 2002).
Specifically, the PCRA provides:
This subchapter provides for an action by which persons convicted of crimes they did not commit and persons serving illegal sentences may obtain collateral relief. The action established in this subchapter shall be the sole means of obtaining collateral relief and encompasses all other common law and statutory remedies for the same purpose that exist when
-3- J. S15029/17
this subchapter takes effect, including habeas corpus and coram nobis.
42 Pa.C.S. § 9542. Moreover, our Supreme Court has stated, “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.” Commonwealth v. Hackett, 956 A.2d
978, 985 (Pa. 2008)
In the instant case, Appellant challenges the trial court’s jurisdiction
and the legality of Appellant’s sentence alleging that Appellant’s criminal Bill
of Information was defective. These claims are cognizable under the PCRA
and are, therefore, properly raised in a PCRA Petition. See 42 Pa.C.S. §
9543(a)(2)(vii) and (viii); see also Commonwealth v. Stout, 978 A.2d
984, 987 (Pa. Super. 2009) (claim that court lacked jurisdiction is cognizable
under the PCRA); Commonwealth v. Jackon, 30 A.3d 516, 521 (Pa.
Super. 2011) (legality of sentence is a cognizable issue under the PCRA).
This Court has clearly stated that an application for a writ of habeas corpus
cannot be used as a “tactical choice to evade the timeliness requirements of
the PCRA.” Stout, supra at 988. Accordingly, the PCRA court properly
reviewed Appellant’s filing under the PCRA and we will refer to it as a PCRA
petition hereafter.
We review the denial of a PCRA Petition to determine whether the
record supports the PCRA court’s findings and whether its Order is otherwise
free of legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa.
-4- J. S15029/17
2014). There is no right to a PCRA hearing; a hearing is unnecessary where
the PCRA court can determine from the record that there are no genuine
issues of material fact. Commonwealth v. Jones, 942 A.2d 903, 906 (Pa.
Super. 2008).
Before addressing the merits of Appellant’s claims, we must first
determine whether we have jurisdiction to entertain the underlying PCRA
Petition. See Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008)
(explaining that the timeliness of a PCRA Petition is a jurisdictional
requisite).
Under the PCRA, any Petition “including a second or subsequent
petition, shall be filed within one year of the date the judgment becomes
final[.]” 42 Pa.C.S. § 9545(b)(1). A Judgment of Sentence becomes final
“at the conclusion of direct review, including discretionary review in the
Supreme Court of the United States and the Supreme Court of Pennsylvania,
or at the expiration of time for seeking the review.” 42 Pa.C.S. §
9545(b)(3). The PCRA’s timeliness requirements are jurisdictional in nature,
and a court may not address the merits of the issues raised if the PCRA
petition was not timely filed. Commonwealth v. Albrecht, 994 A.2d 1091,
1093 (Pa. 2010). Any second or subsequent petition, such as the instant
PCRA Petition, filed after the effective date of the 1995 amendments to the
PCRA “is governed by the PCRA as thus amended.” Commonwealth v.
Yarris, 731 A.2d 581, 586 (Pa. 1999).
-5- J. S15029/17
Here, Appellant’s Judgment of Sentence became final on December 31,
1985, when the thirty-day period for seeking appellate review expired. See
42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903(a). Appellant filed this eighth PCRA
Petition on February 5, 2016, more than thirty years after his Judgment of
Sentence became final. The PCRA court properly concluded that Appellant’s
Petition is facially untimely. PCRA Court Opinion, dated 7/27/16, at 1-2.
Pennsylvania courts may consider an untimely PCRA petition, however,
if the appellant pleads and proves one of the three exceptions set forth in 42
Pa.C.S. § 9545(b), including: (1) the failure to raise the claim previously
was the result of interference by government officials, (2) the claim is based
on facts that were not previously known the petitioner and could not have
been ascertained by the exercise of due diligence, or (3) the petition asserts
a “constitutional right that was recognized by the Supreme Court of the
United States or the Supreme Court of Pennsylvania after the time period
provided in this section and has been held by that court to apply
retroactively.” 42 Pa.C.S. § 9545(b)(1). Appellant failed to plead any of
these exceptions.
The PCRA court properly found Appellant’s Petition to be facially
untimely under the PCRA. Both the PCRA court and this Court lack
jurisdiction to entertain Appellant’s Petition. We, thus, affirm the denial of
PCRA relief.
Order affirmed.
-6- J. S15029/17
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 4/13/2017
-7-