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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
THOMAS DUANE TAYLOR,
Appellant No. 3450 EDA 2014
Appeal from the PCRA Order of October 27, 2014
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0004477-2004
BEFORE: MUNDY, OLSON and MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED AUGUST 25, 2015
Appellant, Thomas D. Taylor, appeals pro se from the order entered on
October 27, 2014, dismissing his writ of habeas corpus as untimely under
the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We
affirm.
A prior panel of this Court summarized the facts of this case as
follows:
A jury found Appellant guilty of attempted homicide,
aggravated assault, and persons not to possess a firearm,
after he shot his girlfriend in the head with a .22 caliber
rifle. The trial court sentenced Appellant to eighteen to
thirty-six years[’] imprisonment on September 26, 2005, on
the attempted homicide charge. The court also imposed a
concurrent sentence of one and one-half to three years for
the persons not to possess a firearm conviction. Appellant
filed a timely direct appeal and a panel of this Court
affirmed. Commonwealth v. Taylor, 919 A.2d 977 (Pa.
Super. 2007) (unpublished memorandum). Our Supreme
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Court denied Appellant's petition for allowance of appeal.
Commonwealth v. Taylor, 931 A.2d 658 (Pa. 2007).
While Appellant's direct appeal was pending, Appellant filed
a writ of habeas corpus. The court treated the filing as a
PCRA petition and appointed counsel. Counsel filed an
amended petition, the court held a hearing and dismissed
the petition. However, after the court discovered that
Appellant's direct appeal was not complete, it promptly
rescinded its order denying Appellant's PCRA petition. See
Commonwealth v. Leslie, 757 A.2d 984 (Pa. Super.
2000). Appellant, nonetheless, appealed. This Court
affirmed the order rescinding the dismissal of Appellant's
premature PCRA petition without prejudice to Appellant's
ability to file a timely petition. Commonwealth v. Taylor,
959 A.2d 469 (Pa. Super. 2008) (unpublished
memorandum).
After the completion of Appellant's direct appeal, Appellant
filed another pro se writ of habeas corpus. The court again
treated the filing as a PCRA petition and appointed counsel,
who submitted an amended petition. Following a hearing
where no evidence was presented, the court dismissed the
petition. Appellant appealed, and this Court affirmed.
Commonwealth v. Taylor, 990 A.2d 55 (Pa. Super. 2009)
(unpublished memorandum). Thereafter, Appellant filed a
series of post-conviction motions, which the court denied.
No appeals were pursued on those filings. Instead, on
December 7, 2011, Appellant filed [another] writ of habeas
corpus. The court treated the habeas corpus motion as a
motion to modify sentence under Pa.R.Crim.P. 720 rather
than a PCRA petition. On December 14, 2011, the court
dismissed the habeas corpus motion as an untimely post-
sentence motion.
Commonwealth v. Taylor, 65 A.3d 462, 464 (Pa. Super. 2013). Viewing
Appellant’s December 7, 2011 habeas corpus motion as a petition for
collateral relief under the PCRA, this Court affirmed the dismissal of
Appellant’s filing as untimely. Id.
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Most recently, on October 8, 2014, Appellant filed a pro se writ of
habeas corpus, alleging that his sentence was illegal because of errors
contained in his presentence investigation (PSI) report that the trial court, in
turn, erroneously relied upon in imposing his sentence. The trial court
treated the filing as a PCRA petition and denied the petition as untimely after
determining Appellant failed to invoke an exception to the one-year
jurisdictional time-bar imposed under the PCRA. Moreover, the PCRA court
observed that Appellant previously presented this precise claim in his last
PCRA petition and, thus, it “would appear that [Appellant] is again arguing
that the information contained in the presentence report utilized during
sentencing was incorrect.” Order, 10/9/14, at 4. This timely appeal
ensued.1
On appeal, Appellant presents the following issues, pro se, for our
review:
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1
The trial court entered the order at issue on October 27, 2014. Appellant
was required to file a notice of appeal by Monday, December 1, 2014,
because the court was closed for Thanksgiving on Thursday, November 27,
2014 and Friday, November 28, 2014. See Pa.R.A.P. 903(a) (notice of
appeal must be filed within 30 days after the entry of the order from which
the appeal is taken); 1 Pa.C.S.A. § 1908 (whenever the last day of the
appeal falls on a weekend or legal holiday, such day shall be omitted from
the computation of time). Appellant dated his notice of appeal November
23, 2014. However, the notice of appeal bears the date stamp from the trial
court clerk of December 2, 2014. Under the prison mailbox rule, “appeals
[are] deemed filed on the date that the prisoner deposits the appeal with
prison authorities, or places it in a prison mailbox.” Commonwealth v.
Little, 716 A.2d 1287, 1288 (Pa. Super. 1998). Thus, we deem it timely.
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1) Whether or not the sentencing court in Appellant[’]s case
used an erroneous/unconstitutional PSI-report as its sole
means by which it administered its sentence, whereby
invalidating the entire sentencing process, in violation of
both the state and federal constitutions?
2) Does the PCRA statute provide for a remedy for
challenges to the procedure employed to administer a
criminal sentence, when said issue is not only a matter of
first impression in the appell[ate] courts, but also not
contained in any statutory language within the
framework of the state PCRA?
Appellant’s Brief at 3 (unpaginated).
Because Appellant’s second claim is addressed to whether his claims
come within the scope of the PCRA, an inquiry that has a direct implication
on whether the PCRA’s jurisdictional timeliness requirements apply, we
examine Appellant’s second issue first. Appellant, here, claims that the
PCRA does not provide a basis for relief for his claim that the trial court
imposed an illegal sentence based upon an erroneous PSI report; thus,
Appellant asserts he properly filed a petition for habeas corpus. Id. at 9-10.
More specifically, Appellant claims that the PSI report “added an extra
charge of 18 Pa.C.S.A. [§] 2502 attempt[ed] murder with serious bodily
injury, which caused him to be illegally sentenced 16 years beyond the
statutory maximum.” Id. at 6, citing 18 Pa.C.S.A. § 1102(c).
“Unless the PCRA could not provide for a potential remedy, the PCRA
statute subsumes the writ of habeas corpus.” Commonwealth v. Taylor,
65 A.3d 462, 465-466 (Pa. Super. 2013). This Court has previously
determined:
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The PCRA provides the sole means for obtaining collateral
review of a judgment of sentence. Commonwealth v.
Fowler, 930 A.2d 586, 591 (Pa. Super. 2007), appeal
denied, 596 Pa. 715, 944 A.2d 756 (2008); 42 Pa.C.S.A.
§ 9542. A court may entertain a challenge to the legality of
the sentence so long as the court has jurisdiction to hear
the claim. In the PCRA context, jurisdiction is tied to the
filing of a timely PCRA petition. Id. at 592. Although legality
of sentence is always subject to review within the PCRA,
claims must still first satisfy the PCRA's time limits or one of
the exceptions thereto. Fowler, supra. Pennsylvania law
makes clear no court has jurisdiction to hear an untimely
PCRA petition. Commonwealth v. Robinson, 837 A.2d
1157 (Pa. 2003). Thus, a collateral claim regarding the
legality of a sentence can be lost for failure to raise it in a
timely manner under the PCRA. Commonwealth v.
Wojtaszek, 951 A.2d 1169, 1173 n.9 (Pa. Super. 2008).
Commonwealth v. Infante, 63 A.3d 358, 365 (Pa. Super. 2013)
(quotations, brackets, and parentheticals omitted).
“An illegal sentence is one that exceeds the statutory limits.”
Commonwealth v. Bradley, 834 A.2d 1127, 1131 (Pa. 2003). A maximum
sentence for attempted murder is 20 years of imprisonment in the absence
of notice and a jury finding that the defendant inflicted serious bodily injury.
Commonwealth v. Johnson, 910 A.2d 60, 66-68 (Pa. Super. 2006).
Here, Appellant claims that the jury did not find him guilty of attempted
murder – serious bodily injury and that the trial court, therefore, sentenced
him above the statutory maximum. Thus, Appellant challenges the legality
of his sentence. Illegal sentencing claims are “always subject to review
within the PCRA.” Infante, 63 A.3d at 365. Accordingly, the trial court
properly treated Appellant’s habeas corpus petition as a PCRA petition.
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Since the PCRA court was required to treat Appellant’s habeas corpus
filing as a PCRA petition, it follows that the PCRA court needed jurisdiction to
reach the merits of Appellant’s claim. This Court has previously determined:
The filing mandates of the PCRA are jurisdictional in nature
and are strictly construed. The question of whether a
petition is timely raises a question of law. Where the
petitioner raises questions of law, our standard of review is
de novo and our scope of review plenary. An untimely
petition renders this Court without jurisdiction to afford
relief. A petition for relief under the PCRA must be filed
within one year of the date the PCRA petitioner's judgment
of sentence becomes final unless the petitioner alleges and
proves that an exception to the one-year time-bar is met.
Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations
omitted). A court may not disregard the time limits of the PCRA to reach
the merits of a petition. Commonwealth v. Geer, 936 A.2d 1075, 1077
(Pa. Super. 2007).
A judgment of sentence becomes final for PCRA purposes “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 review.” 42 Pa.C.S.A. § 9545(b)(3). Herein,
Appellant’s judgment of sentence became final on November 25, 2007.
Hence, Appellant’s petition filed on October 8, 2014 is patently untimely.
A petition still may be considered if it fits within one of three
exceptions to the PCRA's timeliness requirements as set forth at 42
Pa.C.S.A. § 9545(b)(1). However, Appellant has steadfastly maintained that
his claim fails outside the parameters of the PCRA and he specifically
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disavows any exception to the PCRA’s timing requirements applies. See
Appellant’s Brief at 10. Since the Appellant’s petition was untimely and no
exception applies, the PCRA court lacked jurisdiction to entertain Appellant’s
claims.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2015
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