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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CALVIN C. LOGAN,
Appellant No. 1204 EDA 2014
Appeal from the PCRA Order Entered March 18, 2014,
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0705951-1975
BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 11, 2015
Appellant, Calvin C. Logan, appeals from the order denying his fifth
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. We affirm.
The PCRA court summarized the procedural history of this case as
follows:
[Appellant] was found guilty after a jury trial of first
degree murder, aggravated assault, simple assault, possessing
an instrument of crime and criminal conspiracy before the
Honorable Judge John J. McDevitt III.2 On September 28, 1978,
[Appellant] was sentenced to serve a life sentence for the
murder conviction and concurrent terms of five to ten years for
criminal conspiracy and each assault conviction. [Appellant] did
not immediately appeal his judgment of sentence. After having
his direct appeal rights reinstated nunc pro tunc, the Superior
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*
Former Justice specially assigned to the Superior Court.
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Court affirmed the judgment of sentence in 1988, and the
Pennsylvania Supreme Court denied allocatur on March 3, 1989.
2
The instant matter was administratively assigned to
this Court for the preparation of an opinion following
its appointment to the position of Supervising Judge
of the Criminal Division of the Court of Common
Pleas of Philadelphia County.
[Appellant] filed his first Post Conviction Relief Act petition
pro se on October 23, 1992, and the[n,] after counsel was
appointed [Appellant] voluntarily withdrew his petition on June
27, 1996, after a full colloquy before the Honorable Judge
Genece E. Brinkley.3 [Appellant] filed his second PCRA petition
on September 6, 1996. The trial court dismissed the petition on
October 25, 1996. No appeal was taken from this dismissal.
3
It is noted that [Appellant] filed his first petition for
relief pursuant to the Post Conviction Hearing Act
(PCHA), 42 Pa.C.S.A. 9541 et seq. (repealed and
replaced by the PCRA for petitions filed on or after
April 13, 1988). Because the instant petition is not
[Appellant’s] first, the one-year grace period
provided in the 1996 amendments to the PCRA “does
not apply to second or subsequent petitions,
regardless of when the first petition was filed.”
Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa.
Super. 2002), appeal denied, 573 Pa. 703, 827 A.2d
429 (2003).
[Appellant] filed his third PCRA petition pro se on October
8, 1997. After originally sending out a notice of dismissal and a
final order . . . dismissing his third PCRA petition, the trial court
vacated its previous order and appointed counsel. The petition
was dismissed again on July 23, 1999, after counsel filed a
Finley/Turner4 no-merit letter. After counsel was permitted to
withdraw, [Appellant] filed an appeal. The Superior Court
affirmed the dismissal on June 8, 2001. No further appeal was
filed.
4
Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988).
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On June 17, 2003, [Appellant] filed a pro se Writ of Habeas
Corpus, which was processed as his fourth PCRA petition.
Counsel was again appointed and ultimately it was dismissed on
timeliness grounds on October 13, 2006. The Superior Court
affirmed the dismissal on January 8, 2008, and the Supreme
Court denied allocatur on July 1, 2008.
[Appellant] filed his current post conviction petition, on
November 8, 2010. After conducting an extensive and
exhaustive review of the record and applicable case law, this
Court suggests that the ruling that [Appellant’s] petition for post
conviction collateral relief was untimely filed should be affirmed.
PCRA Court Opinion, 7/31/14, at 1-2. The PCRA court denied Appellant’s
petition on March 18, 2014. This pro se appeal followed.
Appellant presents the following issues for our review, which we set
forth verbatim below:
I. SHOULD REVIEW BE GRANTED TO DETERMINE IF THE COURT
OF COMMON PLEAS and PA SUPERIOR COURT DEPRIVE
APPELLANT HIS DUE PROCESS AND EQUAL PROTECTION
RIGHTS WHEN FAILING TO ACCEPT APPELLANT’S WRIT OF
HABEAS CORPUS AND ARBITRARILY TURNED THIS WRIT INTO,
AND ADJUDICATED AS, A POST CONVICTION RELIEF ACT
PETITION VIOLATING THE 5th, 8th, 14th AMENDMENTS OF THE
U.S. CONSTITUTION; and ARTICLE 1, §§1, 9, 11, 13, 15, 20, 25
OF THE PA CONSTITUTION?
II. SHOULD REVIEW BE GRANTED TO DETERMINE IF THE
COMMONWEALTH ERRED BY ALLOWING AN ILLEGAL SENTENCE
UNDER 18 PA. C.S.A. §1311, AN UNCONSTITUTIONAL STATUTE
OF THE DEATH PENALTY TO STAND, AND ALLOWING APPELLANT
TO BE TRIED AND CONVICTED BEFORE ACTUAL PERPETRATOR
JERRY LOGAN, THE PRINCIPLE, AND WHETHER SUBJECT
MATTER JURISDICTION AND A SENTENCING TIME LIMITATION
BE WAIVED AS IT RELATES TO THE HEREIN MATTER VIOLATING
THE 5th, 8th, 14th AMENDMENTS OF THE U.S. CONSTITUTION;
and ARTICLE 1, §§1, 9, 13, 15, 20, 25 OF THE PA
CONSTITUTION?
Appellant’s Brief at 3.
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Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s determination is free of legal error. Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877
A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001)).
Initially, we must determine whether this matter is properly before us.
We begin by considering whether the PCRA court accurately considered
Appellant’s petition to be a PCRA petition.
The scope of the PCRA is explicitly defined as follows:
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 this subchapter takes effect, including
habeas corpus and coram nobis. This subchapter is not
intended to limit the availability of remedies in the trial court or
on direct appeal from the judgment of sentence, to provide a
means for raising issues waived in prior proceedings or to
provide relief from collateral consequences of a criminal
conviction.
42 Pa.C.S. § 9542 (emphasis added).
The plain language of the statute above demonstrates that the
Pennsylvania General Assembly intended that claims that could be brought
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under the PCRA must be brought under that Act. Commonwealth v. Hall,
771 A.2d 1232, 1235 (Pa. 2001) (emphasis in original). Where a
defendant’s claims “are cognizable under the PCRA, the common law and
statutory remedies now subsumed by the PCRA are not separately available
to the defendant.” Id. at 1235 (citations omitted). By its own language,
and by judicial decisions interpreting such language, the PCRA provides the
sole means for obtaining state collateral relief. Commonwealth v. Yarris,
731 A.2d 581, 586 (Pa. 1999) (citations omitted). Thus, it is well settled
that any collateral petition raising issues with respect to remedies offered
under the PCRA will be considered to be a PCRA petition. Commonwealth
v. Deaner, 779 A.2d 578, 580 (Pa. Super. 2001).
The question then is whether the particular claim at issue in
Appellant’s petition, i.e., Appellant’s allegation that his sentence of life
imprisonment is unconstitutional and unlawful, is a claim available to him
under the PCRA. Emergency Petition for Writ of Habeas Corpus, 11/8/10.
We have reiterated that “the PCRA statute is intended as the sole means of
collaterally challenging a sentence.” Commonwealth v. Concordia, 97
A.3d 366, 372 (Pa. Super. 2014). Indeed, in Commonwealth v. Jackson,
30 A.3d 516 (Pa. Super. 2011), this Court held that a defendant’s motion to
correct an illegal sentence was properly addressed as a PCRA petition, stated
broadly, “[A]ny petition filed after the judgment of sentence becomes final
will be treated as a PCRA petition.” Id. at 521.
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Because Appellant’s challenge to his sentence is cognizable under the
PCRA, Appellant is precluded from seeking relief pursuant to a writ of habeas
corpus. Thus, the PCRA court had no authority to entertain the claims
except under the strictures of the PCRA.1
We next address whether Appellant satisfied the timeliness
requirements of the PCRA. The timeliness of a PCRA petition is a
jurisdictional threshold and may not be disregarded in order to reach the
merits of the claims raised in a PCRA petition that is untimely.
Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000). Effective
January 16, 1996, the PCRA was amended to require a petitioner to file any
PCRA petition within one year of the date the judgment of sentence 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.
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1
We observe that Appellant raises in his appellate brief to this Court an
allegation that the trial court lacked subject matter jurisdiction. Appellant’s
Brief at 14-15. This claim was not raised before the PCRA court. Our
Supreme Court has explained that an issue not raised in a PCRA petition
cannot be raised for the first time on appeal. Commonwealth v.
Santiago, 855 A.2d 682, 691 (Pa. 2004). Accordingly, we must consider
Appellant’s challenge to the trial court’s jurisdiction to be waived.
Furthermore, a claim that a conviction or sentence resulted from a
proceeding in a tribunal without jurisdiction is cognizable under the PCRA.
42 Pa.C.S. § 9543(a)(2)(viii). Therefore, even if Appellant had presented
the issue to the PCRA court, as discussed infra, the PCRA petition would
have been dismissed as untimely filed.
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§ 9545(b)(3). Where a petitioner’s judgment of sentence became final on or
before the effective date of the amendment, a special grace proviso allowed
first PCRA petitions to be filed by January 16, 1997. See Commonwealth
v. Alcorn, 703 A.2d 1054, 1056-1057 (Pa. Super. 1997) (explaining
application of PCRA timeliness proviso).
However, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),
and (iii), is met.2 A petition invoking one of these exceptions must be filed
within sixty days of the date the claim could first have been presented. 42
Pa.C.S. § 9545(b)(2). In order to be entitled to the exceptions to the
PCRA’s one-year filing deadline “the petitioner must plead and prove specific
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2
The exceptions to the timeliness requirement are:
(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), (ii), and (iii).
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facts that demonstrate his claim was raised within the sixty-day time frame”
under section 9545(b)(2). Carr, 768 A.2d at 1167.
Our review of the record reflects that Appellant’s judgment of sentence
became final on or about May 2, 1989, sixty days after the Pennsylvania
Supreme Court denied Appellant’s petition for allowance of appeal and the
time for filing a petition for review with the United States Supreme Court
expired. 42 Pa.C.S. § 9545(b)(3); U.S.Sup.Ct.R. 20.1.3 Accordingly,
Appellant’s judgment of sentence became final prior to the effective date of
the PCRA amendments. Appellant’s instant petition, filed on November 8,
2010, does not qualify for the grace proviso as it was neither Appellant’s first
PCRA petition, nor was it filed before January 16, 1997. Thus, the instant
PCRA petition is patently untimely.
As previously stated, if a petitioner does not file a timely PCRA
petition, his petition may be received under any of the three limited
exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.
§ 9545(b)(1). The record reflects that Appellant did not specifically raise
any of the timeliness exceptions in his PCRA petition. Consequently, because
the PCRA petition was untimely and no exceptions apply, the PCRA court
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3
We note that the Rules of the Supreme Court of the United States
pertaining to the time limit for filing a writ of certiorari have changed various
times in relation to both length of time and rule number. Rule 20.1, which
became effective August 1, 1984, and was applicable to this case, required
the filing of a writ of certiorari within sixty days after the Pennsylvania
Supreme Court denied allocatur.
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lacked jurisdiction to address the claims presented and grant relief. See
Fairiror, 809 A.2d at 398 (holding that PCRA court lacks jurisdiction to hear
untimely petition). Likewise, we lack jurisdiction to reach the merits of the
appeal. See Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa.
Super. 2002) (holding that Superior Court lacks jurisdiction to reach merits
of appeal from untimely PCRA petition).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/2015
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Com. v. Logan, C.
Combined Opinion