Orosz, S. v. Wingard, S.

• Court: Superior Court of Pennsylvania
• Decided: November 6, 2014
• Docket: 450 WDA 2014
• Status: Unpublished

Opinion

J-S64013-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

STEPHEN F. OROSZ IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

SUPERINTENDENT WINGARD

Appellee No. 450 WDA 2014

Appeal from the Order March 4, 2014 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD 14-002770

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 06, 2014

Stephen F. Orosz appeals, pro se, from the order of the Court of

Common Pleas of Allegheny County that dismissed his petition for writ of

habeas corpus ad subjiciendum pursuant to Pa.R.C.P. 240(j).1 We affirm the

dismissal of the petition, although on other grounds.

On July 17, 1986, Orosz was found guilty of first-degree murder. The

court denied his post-trial motions on October 22, 1987, and sentenced him

to life imprisonment on November 12, 1987. On appeal, this Court affirmed

his judgment of sentence. Commonwealth v. Orosz, 550 A.2d 251 (Pa.

Super. 1988) (unpublished memorandum). Our Supreme Court denied his ____________________________________________

1 Pa.R.C.P. 240(j)(1) provides that where simultaneous with the commencement of an action, a petitioner files for leave to proceed in forma pauperis, the court may dismiss the action if satisfied that the action is frivolous. J-S64013-14

petition for allowance of appeal on April 3, 1989. Commonwealth v.

Orosz, 558 A.2d 531 (Pa. 1989). Orosz did not seek review in the United

States Supreme Court.

Between 1997 and 2011, Orosz filed four petitions pursuant to the

Post-Conviction Relief Act (PCRA),2 all of which were dismissed. On

February 19, 2014, he filed the instant writ of habeas corpus, which the trial

court dismissed as frivolous by order dated March 4, 2014.

Orosz filed a timely appeal in which he raises the following issues for

our review:

1. Did the court below abuse its discretion by failing to recognize a prima facie deprivation of a constitutional right?

2. Did the court below show a manifest abuse of discretion by dismissing [Orosz’s] petition as frivolous and that habeas corpus is not an appropriate remedy?

3. Did the lower court abuse its discretion by making a prejudicial claim that has no verity and is contrary to the judicial proceedings under habeas corpus?

Brief of Appellant, at vii.

It is clear from the record that the trial court imposed a life sentence

on Orosz on November 12, 1987. Accordingly, his argument that his

sentence is non-existent or a nullity is without foundation. Rather, he is

arguing that there is no statutory basis for his sentence, and therefore his

sentence is illegal.

____________________________________________

2 42 Pa.C.S. §§ 9541-9546.

-2- J-S64013-14

The PCRA “is the sole means of obtaining collateral relief and

encompasses all other common law and statutory remedies that exist for the

same purpose when this subchapter takes effect, including habeas corpus

and coram nobis.” 42 Pa.C.S. § 9542. A claim that a sentence is “greater

than the lawful maximum” is cognizable under the PCRA. See 42 Pa.C.S. §

9543(a)(2)(vii).

Section 9545 of the PCRA provides that a first or subsequent petition

must be filed within one year of the date the judgment becomes final. Here,

Orosz’s judgment of sentence became final on July 2, 1989, ninety days

after the Pennsylvania Supreme Court denied his petition for allowance of

appeal, when the time for seeking discretionary review in the United States

Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. Rule

13. However, the 1995 amendments to the PCRA provide that a petitioner

whose judgment became final before the effective date of the act, would be

deemed to have filed a timely petition if his first petition was filed within one

year of the effective date of the act, which was January 6, 1996.3 Therefore,

Orosz had until January 16, 1997 to file his first or subsequent PCRA

petition. Orosz filed the instant petition on February 19, 2014.

Because Orosz has not established that he is entitled to relief under

the three exceptions set forth in Section 9545(b)(1)(i-iii) (interference by

3 Section 3(1) of the Act of 1995 (Sec. Sess. No. 1), Nov. 17 P.L. 1118, No. 32.

-3- J-S64013-14

government officials; newly discovered facts; newly recognized constitutional

right deemed to apply retroactively), his petition is time-barred. Because of

the time bar, the trial court lacked jurisdiction to consider the merits of

Orosz’s claims. See Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999).

Accordingly, while we agree with the trial court’s decision to dismiss

the petition, we do so on the grounds that the court lacked jurisdiction to

consider the untimely petition. See Donnelly v, Bauer, 720 A.2d 447, 454

(Pa. 1998) (appellate court can affirm on any basis).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/06/2014

-4-