J-A26037-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EUGENIO HERNANDEZ
Appellant No. 2038 MDA 2014
Appeal from the PCRA Order of November 20, 2014
In the Court of Common Pleas of Lebanon County
Criminal Division at Nos.: CP-38-CR-0000546-2002
CP-38-CR-0000797-2001
CP-38-CR-0000805-2001
CP-38-CR-0000806-2001
CP-38-CR-0000807-2001
CP-38-CR-0000808-2001
BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and PLATT, J.*
MEMORANDUM BY WECHT, J.: FILED NOVEMBER 06, 2015
Eugenio Hernandez appeals the November 20, 2014 order dismissing
his petition for writ of habeas corpus, which the PCRA court considered as a
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-46. We affirm.
Prior panels of this Court have summarized the underlying factual and
procedural history of this case as follows:
On numerous occasions between October 11, 2000 and February
15, 2001, detectives and police officers of the Lebanon City Drug
Task Force sent confidential informants Jason Schlegal and
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A26037-15
Raymond Norton to purchase drugs from [Hernandez], who sold
them several “rocks” of crack cocaine. On February 16, 2001,
the Drug Task Force executed a search warrant at 711 Chestnut
Street, the address of an apartment rented by [Hernandez]. The
authorities found various ziplock baggies containing cocaine
residue, drug sale records, and other drug paraphernalia
associated with [Hernandez’] cocaine trafficking.
Commonwealth v. Hernandez, 305 MDA 2003, slip op. at 1-2 (Pa. Super.
Dec. 31, 2003).
On September 6, 2002, a jury convicted Hernandez of several
counts of possession of controlled substances, possession of
paraphernalia, possession with intent to deliver, conspiracy, and
criminal use of a communication facility. On September 18,
2002, the trial court sentenced Hernandez to an aggregate 64 to
174 months’ incarceration. This Court affirmed the judgment of
sentence on December 31, 2003. Hernandez did not file a
petition for allowance of appeal with our Supreme Court.
On January 21, 2005, Hernandez filed a timely pro se PCRA
petition. The PCRA court appointed counsel from the Public
Defender’s Office of Lebanon County, Brian Deiderick, to file an
amended PCRA petition in April 2005. Hernandez wrote Attorney
Deiderick a letter listing the issues he wanted to raise. Attorney
Deiderick, however, was subsequently hospitalized and the letter
was inadvertently misplaced in another client’s file. The PCRA
court dismissed Hernandez’s pro se petition without a hearing.
Upon realizing his error, Attorney Deiderick filed an application
with this Court to file an amended PCRA petition nunc pro tunc,
which this Court granted in an unpublished memorandum filed
November 14, 2006. Commonwealth v. Hernandez, 915 A.2d
143 (Pa. Super. 2006). The PCRA court apparently did not
receive a copy of this Court’s memorandum for several months.
In June of 2007, the PCRA court directed Hernandez to file a
nunc pro tunc amended PCRA petition.
On July 12, 2007, Attorney Deiderick filed an amended PCRA
petition raising nine claims of error. On September 5, 2007, the
PCRA court entered an opinion and order pursuant to
Pa.R.Crim.P. 907 indicating its intention to dismiss the first
seven claims without an evidentiary hearing, but ordering a
hearing on the last two claims. Attorney Deiderick did not
-2-
J-A26037-15
respond to the notice of intent and the PCRA court dismissed the
first seven claims. On December 14, 2007, the PCRA court held
a hearing on the remaining claims, and on February 5, 2008, the
PCRA court entered an order dismissing Hernandez’ amended
PCRA petition.
Commonwealth v. Hernandez, 500 MDA 2008 slip. op. at 2-3 (Pa. Super.
Aug. 21, 2009).
We affirmed the PCRA court’s dismissal of Hernandez’ amended PCRA
petition on August 21, 2009. The Pennsylvania Supreme Court denied
Hernandez’ petition for allowance of appeal on February 22, 2010. On March
17, 2010, Hernandez filed a petition for recidivism risk reduction incentive
program. The PCRA court treated this petition as a second PCRA petition,
and denied Hernandez’ petition on April 21, 2010. Hernandez did not appeal
this denial.
On October 3, 2014, Hernandez filed a pro se document captioned as a
“Writ of Habeas Corpus Ad Subjiciendum.” Because Hernandez sought in
this habeas corpus petition a modification of his sentence, the PCRA court
treated it as a third PCRA petition. On October 21, 2014, the PCRA court
issued an order outlining its intention to dismiss Hernandez’ petition as
untimely. Although the PCRA court had yet to issue an order dismissing the
petition, Hernandez filed a notice of appeal on November 10, 2014. On
November 20, 2014, the PCRA court filed an order dismissing the petition
and recognizing that Hernandez already had filed an appeal. The PCRA court
directed that this case be sent to this Court and stated that it was relying
-3-
J-A26037-15
upon its memorandum opinion filed with its notice of intent to dismiss in lieu
of a Pa.R.A.P. 1925(a) opinion.
Hernandez raises one claim on appeal: “Whether a claim that
[Hernandez’] sentence is unconstitutional in violation of the mandatory
minimum, as pronounced by [Commonwealth v.] Munday, [78 A.3d 661
(Pa. Super. 2013)], Alleyne [v. United States, 133 S.Ct. 2151 (2013)],
and Apprendi [v. New Jersey, 530 US 466 (2000)], constitutes a claim
legitimately sounding in Habeas Corpus?” Hernandez’ Brief at 4. Hernandez
insists that his third PCRA petition should be treated as a petition for a writ
of habeas corpus. Hernandez’ Brief at 10.
Before reaching the merits of Hernandez’ claims, we must determine
whether the PCRA court correctly construed Hernandez’ filing as a PCRA
petition. The PCRA court found that Hernandez sought relief in the form of a
modified sentence in his petition for writ of habeas corpus. The PCRA is the
exclusive means for obtaining post-conviction collateral relief.
Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001)
(citing Commonwealth v. Bronshtein, 752 A.2d 868, 869-70 n.3 (Pa.
2000)). This is true regardless of how a filing is titled. Kutnyak, 781 A.2d at
1261 (citing Commonwealth v. Hutchins, 760 A.2d 50, 52 n.1 (Pa. Super.
2000)).
Our Supreme Court has addressed similar claims from petitioners
seeking relief via habeas corpus when PCRA remedies are available to them.
In Commonwealth v. Turner, 80 A.3d 754 (Pa. 2013), the petitioner
-4-
J-A26037-15
sought collateral review in the form of a petition for a writ of habeas corpus.
Id. at 345. The Turner Court explained that “the PCRA at Section 9542
subsumes the remedies of habeas corpus and coram nobis.” Id. That
section reads, in part:
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.
42 Pa.C.S. § 9542. Simply put, the writ of habeas corpus is not available
when there is a remedy under the PCRA. Commonwealth v. Peterkin,
722 A.2d 638, 640 (Pa. 1998).
To determine whether Hernandez had a remedy under the PCRA, we
look to the terms of the PCRA. In Commonwealth v. Evans, 866 A.2d 442
(Pa. Super. 2005), the appellant filed a motion for modification of sentence.
The Court found that appellant’s submission, by whatever name, was to be
treated as a petition under the PCRA. Id. at 443. Here, Hernandez claims
he received an unconstitutional sentence. His claim is cognizable under the
PCRA as well. See 42 Pa.C.S § 9543(a)(2)(i)(“A violation of the Constitution
of this Commonwealth or the Constitution or laws of the United States
which, in the circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or innocence could
have taken place”); see also Commonwealth v. Guthrie, 749 A.2d 502,
503 (Pa. Super. 2000)(concluding motion to correct illegal sentence had to
-5-
J-A26037-15
be treated as petition filed pursuant to PCRA). Therefore, the PCRA court
did not err in treating the writ as a PCRA petition.
Before reaching the merits of Hernandez’ claim, we must determine
whether his petition was timely. The PCRA time limits are jurisdictional in
nature and must be strictly construed. Commonwealth v. Abu-Jamal,
941 A.2d 1263, 1267 (Pa. 2008). A court may not address the merits of an
issue raised in a PCRA petition if it is not timely filed. Id. at 1267-68. All
PCRA petitions “shall be filed within one year of the date the judgment
becomes final.” 42 Pa.C.S. § 9545(b)(1). A judgment becomes final at the
conclusion of direct review or when the time period to obtain direct review
ends. 42 Pa.C.S.A. §9545(b)(3).
On December 31, 2003, this Court affirmed Hernandez’ judgment of
sentence. He did not seek review in the Pennsylvania Supreme Court.
Thus, his judgment became final on January 30, 2004, at the expiration of
the time in which he could have sought further review. A timely PCRA
petition must have been filed on or before January 30, 2005. Here,
Hernandez did not file the instant petition until October 3, 2014, nine years
after his judgment of sentence became final. Therefore, Hernandez’ third
PCRA petition facially is untimely.
Hernandez can overcome the timeliness requirement if, in his petition,
he alleged and proved one of the following exceptions:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
-6-
J-A26037-15
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).
In his petition, Hernandez pled the third exception to the PCRA’s time
bar. Hernandez’ seeks a new sentence, relying upon Alleyne. In his brief,
he argues that his petition should be considered timely because it was filed
after he learned of Alleyne and Commonwealth v. Newman, 99 A.3d 86
(Pa. Super. 2014). Hernandez’ Brief at 9-11. Hernandez seeks relief on the
claim that portions of his sentence are unconstitutional due to the imposition
of the mandatory sentencing provision of 42 Pa.C.S. § 9712.1, which,
according to Hernandez, violated the ruling set forth in Alleyne. Id.
Therefore, Hernandez argues his petition should be considered to meet the
third exception to the PCRA’s time bar.
In Alleyne, the United States Supreme Court held that any fact that
increases the mandatory minimum sentence for crime is an “element” of the
crime, not a “sentencing factor,” that must be submitted to a jury to
determine the validity thereof. Alleyne, 133 S.Ct. at 2162. This Court
subsequently held that 42 Pa.C.S. § 9712.1, the same provision under which
-7-
J-A26037-15
Hernandez was sentenced, was unconstitutional pursuant to Alleyne. See
Newman, 99 A.3d at 98.
Nevertheless, we previously have rejected the type of claim Hernandez
raises in the context of an untimely PCRA petition:
Subsection (iii) of Section 9545 [(b)(1)] has two
requirements. First, it provides that 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 provided in this section.
Second, it provides that the right “has been held” by “that
court” to apply retroactively. Thus, a petitioner must
prove that there is a “new” constitutional right and that the
right “has been held” by that court to apply retroactively.
The language “has been held” is in the past tense. These
words mean that the action has already occurred, i.e.,
“that court” has already held the new constitutional right
to be retroactive to cases on collateral review.
***
Even assuming that Alleyne did announce a new
constitutional right, neither our Supreme Court, nor the
United States Supreme Court has held that Alleyne is to
be applied retroactively to cases in which the judgment of
sentence had become final. This is fatal to Appellant’s
argument regarding the PCRA time-bar.
Commonwealth v. Miller, 102 A.3d 988, 994-95 (Pa. Super. 2014).
Since Miller was decided, neither the United States nor the
Pennsylvania Supreme Court has held that Alleyne is to be applied
retroactively. Therefore, Hernandez has not satisfied the requirements for
the exception to the PCRA’s time bar and his PCRA petition is untimely.
Order affirmed.
-8-
J-A26037-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2015
-9-