J-S58027-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERRENCE BRADLY,
Appellant No. 285 WDA 2014
Appeal from the PCRA Order Entered February 13, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s):
CP-02-CR-0006702-1989
CP-02-CR-0006884-1989
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 05, 2014
Appellant, Terrence Bradly, appeals pro se from the order dismissing
his petition for a writ of habeas corpus ad subjiciendum. After careful
review, we affirm.
Appellant was charged at the above-listed criminal informations in
1989. Appellant proceeded to a jury trial on February 13, 1990. On
February 15, 1990, the jury found Appellant guilty of first degree murder
and robbery.1 On February 5, 1991, Appellant was sentenced to a
mandatory term of life imprisonment without the possibility of parole. After
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
J-S58027-14
Appellant filed a direct appeal, this Court affirmed his judgment of sentence
on March 3, 1992. Commonwealth v. Bradly, 610 A.2d 62 (Pa. Super.
1992) (unpublished memorandum).
Appellant filed his first Post Conviction Relief Act2 (PCRA) petition on
August 23, 2012. Counsel was appointed; however, appointed counsel
ultimately filed a no-merit letter and a motion to withdraw pursuant to
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). By
pursuant to Pa.R.Crim.P. 907. Appellant filed objections to that order on
May 29, 2013. The court dismissed his PCRA petition on June 17, 2013.
Although Appellant appealed the dismissal of his PCRA petition, this Court
ultimately dismissed his appeal after he failed to file a brief. See Superior
Court Order, 11/12/13, at 1.
The instant matter arose when Appellant filed a petition for a writ of
habeas corpus ad subjiciendum (Habeas Petition) with the Court of Common
Pleas of Allegheny County3 on November 26, 2013. Therein, Appellant
claimed that his sentence was invalid because it was imposed pursuant to a
____________________________________________
2
42 Pa.C.S. § 9541 et seq.
3
t PCRA petition
-2-
J-S58027-14
subsequently repealed statute. The PCRA court dismissed the Habeas
Petition on January 24, 2014, and Appellant filed a timely appeal from that
order. The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal. The PCRA court issued a Rule
1925(a) opinion on May 16, 2014.
Appellant now presents the following question for our review:
[Petition for a] Writ of Habeas Corpus Ad Subjiciendum [in]
violat[ion of] his substantive due process rights[,] where
Appellant has been unlawfully committed to serve life
imprisonment on a mandated repealed statute?
The PCRA
Conviction Relief Act is the sole means by which a criminal defendant may
at 2 (citing Commonwealth v. Mercado, 826 A.2d 897 (Pa. Super. 2003)).
The PCRA court did not offer any additional explanation for its ruling. In his
brief, Appellant asserts that his claim is properly raised in a petition for a
writ of habeas corpus ad subjiciendum g
Commonwealth v. Bangs, 393 A.2d 720 (Pa. Super. 1978)). Both
Appellant and the PCRA court have failed to address this claim in the
appropriate fashion.
-3-
J-S58027-14
under the PCRA or it was not. If it was, then the PCRA court should have
treated the Habeas Petition as a PCRA petition. See Commonwealth v.
Deaner
collateral petition raising issues with respect to remedies offered under the
cognizable under the PCRA, then the trial court should have addressed the
petition as properly raised under our habeas corpus jurisprudence. In both
Commonwealth v. West, 938 A.2d 1034 (Pa. 2007), and Commonwealth
v. Judge, 916 A.2d 511 (Pa. 2007), our Supreme Court held that claims
that fall outside the sphere of the PCRA can be advanced via a petition for a
writ of habeas corpus.
Appellant essentially argued in his Habeas Petition that his sentence of
life imprisonment lacked a valid statutory basis at the time it was imposed, a
claim that he continues to make in this appeal. Section 1102 of Title 18
currently provides, in pertinent part, as follows:
Except as provided under section 1102.1 (relating to sentence of
persons under the age of 18 for murder, murder of an unborn
child and murder of a law enforcement officer), a person who
has been convicted of a murder of the first degree or of murder
of a law enforcement officer of the first degree shall be
sentenced to death or to a term of life imprisonment in
accordance with 42 Pa.C.S. § 9711 (relating to sentencing
procedure for murder of the first degree).
18 Pa.C.S. § 1102(a)(1).
Thus, when a defendant is convicted of first degree murder, section
1102 establishes two possible sentences: life imprisonment or death. The
-4-
J-S58027-14
statute also dictates that the procedure for deciding between those penalties
is governed 42 Pa.C.S. § 9711, as denoted by the italicized portion of
section 1102(a) above. Prior to its amendment in 1995, section 1102(a)
referenced a prior version of 18 Pa.C.S. § 1311(d) rather than section 9711
of Title 42. However, that prior version of section 1311(d) was declared
unconstitutional by our Supreme Court in 1977. Commonwealth v.
Moody, 382 A.2d 442, 443 (Pa. 1977). As we noted in Commonwealth v.
Hardcastle, 546 A.2d 1101 (Pa. 1988), Moody was superseded by statute
when 42 Pa.C.S. § 9711 was amended to replace 18 Pa.C.S. § 1311(d) as
the applicable procedure for determining the appropriate sentence for first
degree murder in 1980.
Appellant was sentenced in 1991 pursuant to the then in-effect version
sentencing procedure for first degree murder had been in effect for more
than a decade, section 1102(a)(1) still referenced the version of section
1311(d) which had been deemed unconstitutional in Moody in 1977. Thus,
Appellant claims, his substantive rights were violated when he was
sentenced under section 1102, when the sentencing procedure set forth in
that st
See
In re M.W., 725 A.2d 729, 731 (Pa. 1999) (holding that, when a sentencing
-5-
J-S58027-14
the issue raised implicates the legality of the sentence imposed). The PCRA
specifically includes challenges to an illegal sentence within its stated scope.
convicted of crimes they did not commit and persons serving illegal
vely (or additionally),
to sentence Appellant under the version of 18 Pa.C.S. § 1102(a)(1) in effect
in 1991. See 42 Pa.C.S. § 9543(a)(2)(viii) (stating that one is eligible for
jurisdiction of the court that imposed it, it is cognizable under the PCRA.
as a PCRA petition. Deaner, supra. Because the PCRA court did not treat
the Habeas Petition as a PCRA petition, it did not give Appellant notice of
intent to dismiss or afford him the opportunity to amend the petition. See
Pa.R.Crim.P. 907(1); Pa.R.Crim.P. 905(B). In this regard, the PCRA court
clearly erred.
of his petition on these grounds. The failure to challenge the absence of a
Rule 907 notice results in waiver of that issue. Commonwealth v. Taylor,
65 A.3d 462, 468 (Pa. Super. 2013) (citing Commonwealth v. Boyd, 923
-6-
J-S58027-14
raised, where the petition is untimely, it does not automatically warrant
Id. (citing Commonwealth v. Pursell, 749 A.2d 911, 917 n.7
(Pa. 2000)).
Having established that the PCRA court should have treated
tion, we must address the
jurisdiction and may not be altered or disregarded in order to address the
merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267
(Pa. 2007) (stating PCRA time limitations implicate our jurisdiction and may
not be altered or disregarded to address the merits of the petition);
Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002)
(holding the Superior Court lacks jurisdiction to reach merits of an appeal
from an untimely PCRA petition).
Under the PCRA, any petition for post-conviction relief, including a
second or subsequent one, must be filed within one year of the date the
judgment of sentence becomes final, unless one of the exceptions set forth
in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. That section states, in relevant
part:
(b) Time for filing petition.--
(1) Any petition under this subchapter, including a second or
subsequent petition, shall be filed within one year of the date the
judgment becomes final, unless the petition alleges and the
petitioner proves that:
-7-
J-S58027-14
(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
(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). Any petition attempting to invoke one of
apply to App
also cannot be applied, because even if the defect that existed in the 1991
version of 18 Pa.C.S. § 1102 called
sentence or the jurisdiction of the sentencing court, that defect was
There is no plausible argument why Appellant could not have discovered that
defect through the exercise of due diligence in the year after his sentence
became final. There is certainly no plausible reason why it would take more
than 20 years to discover that defect.
-8-
J-S58027-14
We conclude, therefore, that even if the PCRA court had not erred by
Accordingly, the PCRA court lacked jurisdiction to entertain his claim, as do
we.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/5/2014
-9-