J-S26008-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DWAYNE JONES
Appellant No. 2534 EDA 2015
Appeal from the PCRA Order July 13, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0706831-2002
CP-51-CR-0710831-2002
CP-51-CR-0715641-2002
CP-51-CR-0715661-2002
CP-51-CR-0715671-2002
CP-51-CR-0715681-2002
CP-51-CR-0904311-2002
BEFORE: OLSON, STABILE and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 26, 2016
Appellant, Dwayne Jones, appeals pro se from the order entered on
July 13, 2015, dismissing a petition for a writ of habeas corpus and petitions
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-
9546. Upon review, we affirm.
The trial court briefly set forth the facts and procedural history of this
case as follows:
On September 24, 2002, [Appellant] entered an open guilty
plea to nine counts of robbery and nine counts of possession
of an instrument of crime. On November 19, 2002,
[Appellant] was sentenced to an aggregate term of twenty
(20) to forty (40) years [of imprisonment]. After
sentencing, [Appellant] filed a petition to withdraw his guilty
*Retired Senior Judge assigned to the Superior Court.
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plea, which was denied on November 29, 2002. He also
filed a motion to modify sentence which was denied on
January 24, 2003.
[Appellant] did not file a direct appeal. On June 17, 2007,
[Appellant] filed his first Post-Conviction Relief Act (“PCRA”)
petition. Counsel was appointed to represent him and
subsequent thereto counsel filed a no-merit letter and
motion to withdraw as counsel on April 29, 2010. The
petition was formally dismissed on June 25, 2010, and
counsel was permitted to withdraw. [Appellant] appealed
the dismissal to the Superior Court. On February 17, 2011,
the Superior Court dismissed [Appellant’s] appeal for failure
to file a brief.
On November 5, 2012, [Appellant] filed a petition for writ of
habeas corpus. On July 18, 2013, [Appellant’s] habeas
petition was transferred from the Civil to the Criminal
Division of the Court of Common Pleas of the First Judicial
District. On November 5, 2013, [Appellant] filed an
amended petition for writ of habeas corpus. On June 13,
2014, [Appellant] filed a PCRA petition. On January 27,
2015, the Supreme Court of Pennsylvania directed [the
trial] court to adjudicate [Appellant’s] pending petitions.
Upon review, [the trial court] determined that some of the
issues [Appellant] raised in his habeas petitions fell under
the provisions of the PCRA because they raised claims
cognizable under the PCRA and that they were untimely
raised. After carefully reviewing [Appellant’s] habeas
petitions and PCRA petition, [Appellant] was sent [] notice
of intent to dismiss [pursuant to Pa.R.Crim.P. 907] on June
8, 2015. On June 18, 2015 [Appellant] filed a response to
the notice to dismiss.
[Appellant’s] petitions were dismissed on July 13, 2015. On
July 24, 2015, [Appellant] filed a notice of appeal from the
order dismissing his PCRA petition. Also, [Appellant] sought
clarification as to what petitions were being dismissed. All
petitions filed were extensively reviewed and were included
in the dismissal. This include[d] the November 5, 2012, []
July 18, 2013, the November 5, 2013, and the June 13,
2014 petition[s].
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Trial Court Opinion, 9/14/2015, at 1-3 (footnote and superfluous
capitalization omitted).
On appeal, Appellant presents the following issues, pro se, for our
review:1
A. [Whether t]he trial court abused its discretion in
dismissing Appellant’s petition for writ of habeas corpus
[] since he is confined absent a sentencing order [as]
required by 42 Pa.C.S.A. § 9764(a)(8)[?]
B. [Whether] Appellant’s sentence of imprisonment with
service of a consecutive term of probation constitutes an
illegal split sentence that the court was without
jurisdiction to impose[?]
C. Is [] Appellant[’s] sentence a nullity as the mandatory
sentencing statutes in Pennsylvania have been ruled
facially unconstitutional?
Appellant’s Brief at 7, 12, and 14 (complete capitalization omitted).
In his first issue presented, Appellant claims that when he requested a
copy of the sentencing order on his underlying convictions, the Department
of Corrections (DOC) responded that it did not have it on record. Id. at 7.
Appellant claims that “[b]ecause the [s]entencing [o]rder herein does not
exist[,] the DOC lacks the authority to detain Appellant[.]” Id. at 10.
“Appellant claims that as a result of the absence of a [s]entencing [o]rder in
the DOC’s possession[,] his confinement is illegal.” Id.
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1
We note that Appellant’s statement of questions presented does not
correspond with the argument section of Appellant’s brief. For clarity, we list
the issues on appeal as they appear immediately preceding each claim in the
argument section of Appellant’s brief.
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“Under Pennsylvania statute, habeas corpus is a civil remedy that lies
solely for commitments under criminal process.” Joseph v. Glunt, 96 A.3d
365, 369 (Pa. Super. 2014) (citation and bracket omitted). “The writ lies to
secure the immediate release of one who has been detained unlawfully, in
violation of due process.” Id. (citation omitted). “Traditionally, the writ has
functioned only to test the legality of the petitioner's detention.” Id.
(citation and bracket omitted). “Habeas corpus is an extraordinary remedy
and may only be invoked when other remedies in the ordinary course have
been exhausted or are not available.” Id. “[A] claim that a defendant's
sentence is illegal due to the inability of the DOC to produce a written
sentencing order related to his judgment of sentence constitutes a claim
legitimately sounding in habeas corpus.” Id. at 368.
Our standard of review regarding a writ of habeas corpus is
well-settled:
On appeal, a trial court's decision to grant or deny a petition
for a writ of habeas corpus will not be reversed absent an
abuse of discretion. Instead, it involves bias, prejudice,
partiality, ill-will, manifest unreasonableness, or a
misapplication of the law. In contrast, a proper exercise of
discretion conforms to the law and the facts of record.
Commonwealth v. Carroll, 936 A.2d 1148, 1152-1153 (Pa. Super. 2007).
Upon commitment of an inmate to the custody of the DOC:
the sheriff or transporting official shall provide to the
institution's records officer or duty officer, in addition to a
copy of the court commitment form DC–300B generated
from the Common Pleas Criminal Court Case Management
System of the unified judicial system, […] [a] copy of the
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sentencing order and any detainers filed against the inmate
which the county has notice.
42 Pa.C.S.A. § 9764(a)(8).
We previously determined:
The current version of 42 Pa.C.S. § 9764(a)(8) requires that
a copy of the sentencing order be provided to the DOC upon
commitment of an inmate to its custody. However, it does
not create any remedy or cause of action for a
prisoner based upon the failure to provide a copy to
the DOC. The statute regulates the exchange of prisoner
information between the state and county prison system,
and does not provide a basis for habeas relief.
* * *
The language and structure of section 9764, viewed in
context, make clear that the statute pertains not to the
DOC's authority to detain a duly-sentenced prisoner, but,
rather, sets forth the procedures and prerogatives
associated with the transfer of an inmate from county to
state detention. None of the provisions of section 9764
indicate an affirmative obligation on the part of the DOC to
maintain and produce the documents enumerated in
subsection 9764(a) upon the request of the incarcerated
person. Moreover, section 9764 neither expressly vests, nor
implies the vestiture, in a prisoner of any remedy for
deviation from the procedures prescribed within.
Joseph, 96 A.3d at 370-371 (footnote and citations omitted; emphasis in
original).
Here, we conclude that the trial court properly treated Appellant’s
claim under habeas review and agree that he was not entitled to relief.
Upon review of the certified record, the trial court entered a sentencing
order in Appellant’s case on November 19, 2002. Based upon the foregoing
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law, the mere fact that the DOC did not produce a copy of it, does not entitle
Appellant to relief. Thus, Appellant’s first issue is without merit.
In his last two issues presented, Appellant claims that his sentence is
illegal for two reasons. We will examine them together. First, Appellant
claims the trial court was without authority or jurisdiction to sentence him to
“a split sentence.”2 Appellant’s Brief at 12. Next, relying upon the United
States Supreme Court’s decision in Alleyne v. United States, 133 S. Ct.
2151 (2013), Appellant argues that the trial court illegally sentenced him to
a mandatory minimum sentence under 42 Pa.C.S.A. § 9712.1 for committing
a robbery with a firearm. Id. at 14. Both of these claims challenge the
legality of a sentence and, thus, fall under the PCRA.3 42 Pa.C.S.A.
§ 9353(a)(2)(vii).
“As a general proposition, we review a denial of PCRA relief to
determine whether the findings of the PCRA court are supported by the
record and free of legal error.” Commonwealth v. Eichinger, 108 A.3d
821, 830 (Pa. 2014) (bracket omitted). This Court previously determined:
____________________________________________
2
When incarceration and probation are imposed on the same count of
conviction, this is known as a split sentence. Allen v. Com. Dept. of
Corrections, 103 A.3d 365, 368 n. (Pa. Cmwlth. 2014), citing McCray v.
Department of Corrections, 872 A.2d 1127 (Pa. 2005). “When
determining the lawful maximum allowable on a split sentence, the time
originally imposed cannot exceed the statutory maximum.” Commonwealth
v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010).
3
We note that Appellant does not challenge the trial court’s decision to
treat these claims under the PCRA.
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It is well-settled that the PCRA is intended to be the sole
means of achieving post-conviction relief. Unless the PCRA
[does] not provide for a potential remedy, the PCRA statute
subsumes the writ of habeas corpus. Issues that are
cognizable under the PCRA must be raised in a timely PCRA
petition and cannot be raised in a habeas corpus petition.
Phrased differently, a defendant cannot escape the PCRA
time-bar by titling his petition or motion as a writ of habeas
corpus.
Commonwealth v. Taylor, 65 A.3d 462, 465-466 (Pa. Super. 2013).
“[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.” Commonwealth
v. Fowler, 930 A.2d 586, 592 (Pa. Super. 2007). Stated differently,
“although illegal sentencing issues cannot be waived, they still must be
presented in a timely PCRA petition.” Taylor, 65 A.3d at 465 (citation
omitted).
This Court stated:
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. 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. 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.
* * *
However, an untimely petition may be received when the
petition alleges, and the petitioner proves, that any of the
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three limited exceptions to the time for filing the petition
[….] are met.4 A petition invoking one of these exceptions
must be filed within sixty days of the date the claim could
first have been presented. In order to be entitled to the
exceptions to the PCRA's one-year filing deadline, the
petitioner must plead and prove specific facts that
demonstrate his claim was raised within the sixty-day time
frame[.]
Commonwealth v. Lawson, 90 A.3d 1, 4-5 (Pa. Super. 2014) (internal
citations and quotations omitted).
Here, Appellant was sentenced on November 19, 2002 and moved for
post-sentence relief on January 8, 2003. On January 24, 2003, the trial
court denied Appellant’s post-sentence motion to modify his sentence. No
direct appeal followed. Thus, Appellant’s sentence became final on February
24, 2003, 30 days after the denial of his post-sentence motion and the
____________________________________________
4
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.A. § 9545(b)(1)(i-iii).
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subsequent expiration of the appeal period. See Pa.R.Crim.P. 720(a) (“If
the defendant files a timely post-sentence motion, the notice of appeal shall
be filed [] within 30 days of the entry of the order deciding the motion.”);
see also Pa.R.A.P. 903 (“notice of appeal [] shall be filed within 30 days
after the entry of the order from which the appeal is taken.”). The PCRA
petitions at issue, filed in November 2012 and June 2014, were patently
untimely and Appellant did not assert any exceptions to the PCRA’s
jurisdictional timing requirement. Hence, the trial court did not have
jurisdiction to entertain Appellant’s remaining sentencing claims.
Finally, we note that Appellant filed his PCRA petition raising his
Alleyne claim on June 13, 2014, almost a full year after Alleyne was
decided on June 17, 2013. Hence, he did not present the claim within 60
days of the date the claim could first have been presented. Moreover,
during the pendency of this appeal, our Court issued an opinion in the case
of Commonwealth v. Ruiz, 2015 WL 9632089 (Pa. Super. 2015), which
definitely determined that Alleyne is not retroactive and cannot serve as the
basis for invoking the timeliness exception found at 42 Pa.C.S.A.
§ 9545(b)(1)(iii). In Ruiz, we concluded:
Alleyne does not invalidate a mandatory minimum
sentence when presented in an untimely PCRA petition. See
Commonwealth v. Miller, 102 A.3d 988 (Pa. Super.
2014). In concluding Alleyne does not satisfy the new
retroactive constitutional right exception to the PCRA's one
year time bar, 42 Pa.C.S. § 9545(b)(1)(iii), the Miller Court
explained:
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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. This Court has recognized that a
new rule of constitutional law is applied retroactively
to cases on collateral review only if the United States
Supreme Court or our Supreme Court specifically
holds it to be retroactively applicable to those cases.
Id. at 995 (citations omitted) (emphasis supplied).
Furthermore, this Court also recently declined to give
Alleyne retroactive effect to cases on timely collateral
review when the defendant's judgment of sentence was
finalized before Alleyne was decided. See Commonwealth
v. Riggle, 119 A.3d 1058 (Pa. Super. 2015).
In Riggle, after the defendant was sentenced on August 7,
2009, this Court affirmed, and the Pennsylvania Supreme
Court denied allowance of appeal on December 15, 2011.
Id., 119 A.3d at 1061–1062. Riggle filed a timely PCRA
petition on December 18, 2012, and, when the PCRA court
issued notice of intent to dismiss the petition, Riggle
responded and claimed that his sentence was illegal under
Alleyne. See id., 119 A.3d at 1062.
In considering whether the United States Supreme Court's
June 17, 2013, decision in Alleyne should apply to cases on
collateral review, the Riggle Court held that while Alleyne
“undoubtedly is a new constitutional rule,” it does not meet
the test for retroactive application during collateral review
as set forth in the United States Supreme Court's decision,
Teague v. Lane, 489 U.S. 288 (1989) (plurality). Riggle,
supra, 119 A.3d at 1066. Specifically, the panel concluded
the rule announced in Alleyne was neither substantive, nor
a “watershed” procedural rule, that is, “necessary to
prevent an impermissibly large risk of an inaccurate
conviction and alters the understanding of the bedrock
procedural elements essential to the fairness of a
proceeding.” Id. Therefore, the Riggle Court found that
because “the fundamental fairness of the trial or sentencing
is not seriously undermined, [] Alleyne is not entitled to
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retroactive effect in this PCRA setting.” Id. at 1067
(emphasis supplied).
Ruiz, 2015 WL 9632089, at *3 (emphasis in original).5
As Appellant raised his final two sentencing claims in untimely PCRA
petitions, not subject to exception to the PCRA’s one-year time-bar, we
discern no abuse of discretion or error of law in denying relief on his second
and third issues as presented.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/2016
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5
We note that the future of the Riggle holding is uncertain. This Court
granted en banc review in several cases dealing with retroactive application
of Alleyne in timely filed PCRA petitions. See, e.g., Commonwealth v.
Aybar, 1224 MDA 2014 (October 26, 2015). Moreover, on December 2,
2015, the Pennsylvania Supreme Court granted allowance of appeal on
another similar case. See Commonwealth v. Washington, 127 A.3d 1287
(Pa. 2015). However, as Appellant’s PCRA petition is untimely, Riggle, and
any subsequent interpretation of that case, are inapplicable here and Ruiz
controls.
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