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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
ANDRE M. ADAMS, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
STACY PARKS MILLER, CENTRE : No. 767 MDA 2015
COUNTY DISTRICT ATTORNEY AND :
ROBERT GILMORE :
Appeal from the Order Entered April 10, 2015,
in the Court of Common Pleas of Centre County
Civil Division at No. 14-4779
BEFORE: FORD ELLIOTT, P.J.E., WECHT AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 06, 2015
Andre M. Adams appeals from the order of April 10, 2015, denying his
petition for writ of habeas corpus. We affirm.
On January 10, 2013, following a jury trial, appellant was found guilty
of 38 charges at two separate dockets. At No. CP-14-CR-1228-2012,
appellant was convicted of 16 counts of possession of a controlled substance
with intent to deliver (“PWID”), one count of criminal conspiracy, and one
count of criminal use of a communication facility (“CUCF”). At
No. CP-14-CR-355-2012, appellant was convicted of 14 counts of PWID, and
6 counts of CUCF. Commonwealth v. Adams, No. 808 MDA 2014,
unpublished memorandum at 2 (Pa.Super. filed June 17, 2015). On
February 12, 2013, appellant received an aggregate sentence of 79 to
* Former Justice specially assigned to the Superior Court.
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158 years’ imprisonment on the two dockets. Id. On direct appeal to this
court, on June 17, 2015, we vacated appellant’s judgment of sentence and
remanded for re-sentencing, finding that appellant’s sentence was
unconstitutional, and illegal, pursuant to Alleyne v. United States,
U.S. , 133 S.Ct. 2151 (2013) (holding that facts that increase mandatory
minimum sentences must be submitted to the jury and must be found
beyond a reasonable doubt). Id. at 8, citing Commonwealth v. Cardwell,
105 A.3d 748, 751 (Pa.Super. 2014), appeal denied, 121 A.3d 494 (Pa.
2015) (applying Alleyne and recognizing that the mandatory minimum
sentences associated with the weight of narcotics possessed by a drug
dealer pursuant to 18 Pa.C.S.A. § 7508 are unconstitutional).1
Meanwhile, during the pendency of his direct appeal, appellant filed
the instant habeas petition, alleging that the criminal statutes he was found
guilty of violating are unconstitutional due to the lack of an enacting clause.
The trial court described the procedural posture of this matter as follows:
While the appeal to the Superior Court was
pending, [appellant] filed the present motion before
the Court, which is captioned Petition for Writ of
Habeas Corpus Sub Jiciendum, which was filed on
December 24, 2014. Based upon the Court’s review
of the documentation filed by [appellant] as well as
his argument in court this morning, it is [appellant]’s
sole position that because there is no Enacting
Clause in the Pennsylvania Crimes Code, the
1
According to the Commonwealth, Office of Attorney General, appellant was
re-sentenced on August 25, 2015, to 45 to 90 years’ imprisonment.
(Commonwealth’s brief at 4.) An appeal from the August 25, 2015
judgment of sentence is currently pending at No. 1695 MDA 2015.
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sentencing judge had no jurisdiction to try the
charges set forth in the two informations filed by the
District Attorney of Centre County and/or the
Attorney General of Pennsylvania. This Court does
not believe that [appellant]’s position has any merit
and does not believe it appropriate for a county trial
judge to declare the entire Crimes Code
unconstitutional.
Order, 4/17/15 at 1 (Docket #29). The trial court denied appellant’s petition
in open court on April 10, 2015, following a hearing, and also by order filed
April 17, 2015. (Id.) The trial court also noted that, “if the Petition for Writ
of Habeas Corpus were to be considered a petition under the Post-Conviction
Relief Act [(“PCRA”)2], the petition would have been dismissed as premature
in light of the fact that there is a present appeal before the Superior Court.”
(Id. at 2.) Appellant filed a timely pro se notice of appeal on April 23,
2015. Appellant was not ordered to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A.
On May 18, 2015, the trial court issued a Rule 1925 statement, relying on its
previous order filed April 17, 2015, and directing the clerk to transmit the
existing record to this court. (Docket #38.)
It is well-settled that the PCRA is intended to
be the sole means of achieving post-conviction relief.
42 Pa.C.S. § 9542; Commonwealth v. Haun, 613
Pa. 97, 32 A.3d 697 (2011). Unless the PCRA could
not provide for a potential remedy, the PCRA statute
subsumes the writ of habeas corpus.
[Commonwealth v. Fahy, 737 A.2d 214, 223-224
(Pa. 1999)]; Commonwealth v. Chester, 557 Pa.
358, 733 A.2d 1242 (1999). Issues that are
2
42 Pa.C.S.A. §§ 9541-9546.
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cognizable under the PCRA must be raised in a
timely PCRA petition and cannot be raised in a
habeas corpus petition. See Commonwealth v.
Peterkin, 554 Pa. 547, 722 A.2d 638 (1998); see
also Commonwealth v. Deaner, 779 A.2d 578
(Pa.Super. 2001) (a collateral petition that raises an
issue that the PCRA statute could remedy is to be
considered a PCRA petition).
Commonwealth v. Taylor, 65 A.3d 462, 465-466 (Pa.Super. 2013).
[T]he PCRA is the exclusive vehicle for obtaining
post-conviction collateral relief. Commonwealth v.
Bronshtein, 561 Pa. 611, 614 n. 3, 752 A.2d 868,
869-70 n. 3 (2000). This is true regardless of the
manner in which the petition is titled.
Commonwealth v. Hutchins, 760 A.2d 50, 52 n. 1
(Pa.Super. 2000). Indeed, the PCRA statute
specifically provides for such treatment:
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.A. § 9542. Simply because the merits of
the PCRA petition cannot be considered due to
previous litigation, waiver, or an untimely filing,
there is no alternative basis for relief outside the
framework of the PCRA. See generally,
Commonwealth v. Fahy, 558 Pa. 313, 332, 737
A.2d 214, 223-224 (1999) (citing Commonwealth
v. Chester, 557 Pa. 358, 733 A.2d 1242 (1999)).
Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.Super. 2001).
In Commonwealth v. Fowler, 930 A.2d 586
(Pa.Super. 2007), the learned Judge, now Justice,
McCaffery, collected cases and reiterated that all
motions filed after a judgment of sentence is final
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are to be construed as PCRA petitions. Id. at 591
(citing Commonwealth v. Johnson, 803 A.2d
1291, 1293 (Pa.Super. 2002)); Commonwealth v.
Evans, 866 A.2d 442 (Pa.Super. 2005);
Commonwealth v. Beck, 848 A.2d 987, 989
(Pa.Super. 2004); Commonwealth v. Guthrie, 749
A.2d 502, 503 (Pa.Super. 2000). More recently, in
Commonwealth v. Jackson, 30 A.3d 516
(Pa.Super. 2011), this Court held that a defendant’s
motion to correct his illegal sentence was properly
addressed as a PCRA petition, stating broadly, “any
petition filed after the judgment of sentence
becomes final will be treated as a PCRA petition.”
Id. at 521 (quoting Johnson, supra).
Taylor, 65 A.3d at 466. See also Commonwealth v. Stout, 978 A.2d
984, 987 (Pa.Super. 2009) (PCRA, not petition for habeas corpus, provided
prisoner with remedy for allegations that court lacked jurisdiction and
authority to prosecute him).
Appellant’s allegations, including the enacting clause argument, are
cognizable under the PCRA. Because appellant’s appeal at No. 808 MDA
2014 was still pending, however, his judgment had never become final for
purposes of a PCRA petition. 42 Pa.C.S.A. § 9545(b)(3) (providing “a
judgment becomes final at the conclusion of direct review . . . or at the
expiration of time for seeking the review”). Appellant cannot file a PCRA
petition before his judgment becomes final, so the court lacked authority to
decide appellant’s PCRA petition. 42 Pa.C.S.A. § 9545(b) (any PCRA petition
“shall be filed within one year of the date the judgment becomes final” with
certain exceptions permitting a later filing). In fact, appellant’s judgment of
sentence is still not final, as he has taken another direct appeal from
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re-sentencing. As stated above, the trial court recognized that if appellant’s
habeas petition is considered a PCRA petition, it is premature. While the
trial court ultimately dismissed appellant’s petition on the merits, “we may
affirm a PCRA court’s decision on any grounds if the record supports it.”
Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.Super. 2014) (quotation
marks and citation omitted).3
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2015
3
We note that a PCRA petitioner has a rule-based right to counsel for a first
PCRA. See Stout, 978 A.2d at 988 (“our finding above that appellant’s
habeas corpus petition is the functional equivalent of a petition under the
PCRA raises issues regarding the right to legal representation. Generally
speaking, an indigent petitioner is entitled to the appointment of counsel on
his first post-conviction attack of his conviction.”) (citations omitted). This is
true even where the petition is facially untimely. Id. Here, however,
appellant’s petition is premature, filed during the pendency of his direct
appeal and before judgment of sentence was final.
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