Frankenberry, J. v. Com. of PA

• Court: Superior Court of Pennsylvania
• Decided: August 19, 2020
• Docket: 14 WDA 2020
• Status: Unpublished

Opinion

J-S36040-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOSEPH P. FRANKENBERRY : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : COMMONWEALTH OF : No. 14 WDA 2020 PENNSYLVANIA, DR. MARSH, : SUPERINTENDENT AT S.C.I. : BENNER; AND THE ATTORNEY : GENERAL OF PENNSYLVANIA

Appeal from the Order Entered December 17, 2019 In the Court of Common Pleas of Fayette County Civil Division at No(s): 2536 of 2019 GD

BEFORE: OLSON, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 19, 2020

Joseph P. Frankenberry (Frankenberry) appeals from the December 17,

2019 order of the Court of Common Pleas of Fayette County (PCRA court)

dismissing his application for writ of habeas corpus. Because his application

is properly construed as an untimely petition pursuant to the Post-Conviction

Relief Act (PCRA),1 we affirm.

We briefly recount the procedural history of this case. In 1981,

Frankenberry was convicted following a jury trial of first-degree murder and

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* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. § 9541 et seq. J-S36040-20

the following year he was sentenced to life imprisonment. This court affirmed

the judgment of sentence in 1984 and in 1985, our Supreme Court denied

Frankenberry’s petition for allowance of appeal. Commonwealth v.

Frankenberry, 778 WDA 2018, at *1 (Pa. Super. April 26, 2019). Since that

time, Frankenberry has filed four PCRA petitions. Id. We affirmed the

dismissal of his most recent PCRA petition in 2019 finding that it was untimely.

Id. at *6.

Frankenberry commenced the instant civil action by filing an application

for writ of habeas corpus in the PCRA court on November 13, 2019. In the

application, Frankenberry contended that his sentence was illegal because the

sentencing court imposed a sentence of “natural life” in prison, when the

statute governing sentences for first-degree murder only authorizes a

sentence of life imprisonment. See 18 Pa.C.S. 1102. He argues that his

sentence is illegal because the legislature has never authorized the courts to

impose a sentence of “natural life” imprisonment.

On December 17, 2019, the PCRA court dismissed the application with

prejudice. On January 2, 2020, Frankenberry timely filed a notice of appeal

and he subsequently filed a concise statement in accordance with Pa.R.A.P.

1925(b). The PCRA court filed a responsive statement finding that the

dismissal was proper for two independent reasons. First, it found that an

application for writ of habeas corpus should have been filed in the judicial

district where Frankenberry is incarcerated, not the district where he was

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convicted. In the alternative, the PCRA court found that Frankenberry sought

relief that was cognizable under the PCRA and was subject to that statute’s

jurisdictional time bar. 42 Pa.C.S. § 9545(b). Noting that Frankenberry’s

conviction became final in the mid-1980s, the PCRA court concluded the

petition was untimely.

On appeal, Frankenberry contends that his sentence was illegal and that

the court was not empowered by statute to impose a sentence of “natural life”

in prison as opposed to life in prison.

The phrase ‘illegal sentence’ is a term of art in Pennsylvania Courts that is applied to three narrow categories of cases. Those categories are: “(1) claims that the sentence fell ‘outside of the legal parameters prescribed by the applicable statute’; (2) claims involving merger/double jeopardy; and (3) claims implicating the rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).”

Commonwealth v. Munday, 78 A.3d 661, 664 (Pa. Super. 2013) (citations

omitted). Frankenberry’s claim falls within the first category, as he contends

that the sentencing statute did not provide the court with the legal authority

to impose a sentence of “natural life” in prison.

A court must construe any motion filed after a defendant’s judgment of

sentence becomes final as a petition filed pursuant to the PCRA.

Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011). We have

previously held that an application for writ of habeas corpus must be treated

as a petition pursuant to the PCRA if it seeks relief cognizable under that

statute:

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Unless the PCRA could not provide for a potential remedy, the PCRA statute subsumes the writ of habeas corpus. Issues that are cognizable under the PCRA must be raised in a timely PCRA petition and cannot be raised in a habeas corpus petition. Phrased differently, a defendant cannot escape the PCRA time-bar by titling his petition or motion as a writ of habeas corpus.

Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013) (citations

& footnote omitted); see also 42 Pa.C.S. § 9542 (“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 this subchapter takes effect, including habeas corpus

and coram nobis.”). The PCRA statute provides the only means of relief for a

petitioner who raises a challenge to the legality of his sentence after his

judgment of sentence has become final. 42 Pa.C.S. §§ 9542 &

9543(a)(2)(vii).

Because Frankenberry’s illegal sentencing claim is cognizable under the

PCRA, he may only seek relief pursuant to that statute.2 Thus, we must

2 Frankenberry relies on Commonwealth v. Smith, 194 A.3d 126 (Pa. Super. 2018), to support his argument that his application for writ of habeas corpus is not cognizable under the PCRA. However, Smith is distinguishable. There, the petitioner claimed that 18 Pa.C.S. § 1102 was void for vagueness because the statute did not provide adequate notice that a sentence of life imprisonment for first-degree murder would be a sentence of life without the possibility of parole. Id. at 135. We concluded that this due process challenge was not cognizable under the PCRA, as the petitioner did not contend that the sentencing court had imposed a sentence above that authorized by statute. Id. at 137. Because he argued that the legislature had not provided adequate notice of the penalty for first-degree murder when it enacted the sentencing statute, this constitutional claim was not a challenge to the sentencing court’s

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consider whether the petition is timely.3 “A PCRA petition, including a second

and subsequent petition, shall be filed within one year of the date the

underlying judgment becomes final.” Commonwealth v. Graves, 197 A.3d

1182, 1185 (Pa. Super. 2018) (citation omitted). “[A] judgment 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).

As Frankenberry’s sentence became final in 1985 and he did not file the instant

petition until November 13, 2019, his petition is facially untimely and he must

plead and prove one of the exceptions to the PCRA’s timeliness requirements.

There are three exceptions to the PCRA’s jurisdictional time-bar:

(i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the Constitution or laws of this Commonwealth or the Constitution or laws of the United States;

(ii) the facts upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or ____________________________________________

authority. Id. at 137-38. Here, Frankenberry’s petition contends that the sentencing court imposed an illegal sentence by stating on the record at sentencing and in the sentencing order that Frankenberry was to be imprisoned for his “natural life.” Thus, he argues that the sentencing court exceeded its authority by imposing a sentence not specifically authorized by statute. This falls within the category of “illegal sentences” for which relief must be sought under the PCRA. Id. at 137.

3 Whether a PCRA petition is timely filed is a question of law over which our standard of review is de novo and our scope of review is plenary. Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations omitted).

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(iii) the right asserted is 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)(i)-(iii). In addition, a PCRA petitioner must present

a claimed exception within one year of the date the claim could have been

presented. 42 Pa.C.S.A. § 9545(b)(2).

Frankenberry’s application did not plead any exceptions to the time bar,

as he contends only that his application should not be treated as a petition

pursuant to the PCRA. As Frankenberry has not pled or proven any exceptions

to the time bar, we conclude that his petition is untimely. Because neither

the PCRA court nor this court has jurisdiction to consider the merits of an

untimely PCRA petition, we affirm the order dismissing the petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/19/2020

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