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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
EDWARD CLYDE SILVIS
Appellant No. 525 WDA 2016
Appeal from the Order Entered March 14, 2016
In the Court of Common Pleas of Armstrong County
Criminal Division at No(s): CP-03-CR-0000007-1970
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED OCTOBER 7, 2016
Edward Silvis appeals from an order dismissing his petition under the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. § 9541 et seq., which he
styled as a petition for writ of habeas corpus. We affirm.
In 1969, Silvis was convicted of first degree murder and sentenced to
life imprisonment. The Supreme Court, on direct appeal, affirmed his
conviction and sentence. Commonwealth v. Silvis, 284 A.2d 740
(Pa.1971). He filed three unsuccessful petitions for post-conviction relief,
the third of which resulted in a published opinion, Commonwealth v.
Silvis, 452 A.2d 1045 (Pa.Super.1982). He remains in state prison to this
day.
On November 12, 2015, Silvis filed the present petition in the Court of
Common Pleas of Forest County, Pennsylvania. On January 13, 2016, the
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Forest County court transferred the matter to the Court of Common Pleas of
Armstrong County (hereinafter “the common pleas court”), where Silvis had
been tried and sentenced more than 45 years earlier.
Silvis’s petition alleged that he should be released from custody based
on what he claims is false information in his Department of Corrections
(“DOC”) records. In particular, he complained about two forms. The first
form, a Form DC-23B (“Sentence Status Change Report”) dated August 10,
1988, stated that Silvis was sentenced for “Murder 1st Degree”. The use of
these words, Silvis asserted, was erroneous because his sentencing order
did not include a degree of murder.
The second form, a Form DC-16E dated November 5, 2004, listed
Silvis’s offense as “CC2502-Murder,” which appears to be an abbreviation of
18 Pa.C.S. § 2502, the murder statute presently in the Crimes Code. Silvis
argues that he was not convicted under section 2502, and that this statute
did not become effective until June 1973, after his date of sentencing.
Silvis claimed that he was not challenging the legality or validity of his
sentence but only objected to the DOC’s inclusion of “false” information in its
data system. But at the same time, Silvis asked the court to order the DOC
either to correct the information to match his sentencing order or release
him from custody immediately.
Noting that the respondent in the petition was the superintendent of
SCI Rockview, where Silvis is imprisoned, the common pleas court deemed
Silvis’s petition to be a petition for a writ of mandamus to compel the DOC to
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change items of information in its data system concerning Silvis’s
imprisonment. The common pleas court held that it lacked jurisdiction to
order the DOC to take any steps, and that Silvis’s sole remedy was to file a
petition for mandamus in the Commonwealth Court.
On March 17, 2016, the common pleas court entered an order
dismissing Silvis’s petition. Silvis filed a timely notice of appeal, and both
Silvis and the common pleas court complied with Pa.R.A.P. 1925.
Silvus raises two issues in this appeal:
1. Whether [Silvis] was denied his constitutional right to a writ
of habeas corpus?
2. Whether the trial court erred and abused its discretion when
it failed to consider unlawful detention on writ of habeas corpus
but instead without jurisdiction [held] a post conviction hearing?
Brief For Appellant, at 5.
Silvis styled his filing as a habeas corpus petition, and the common
pleas court construed his petition as seeking a writ of mandamus against the
DOC. We conclude, however, that Silvis actually seeks relief under the
PCRA.
This Court has explained:
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, [ ] 32 A.3d 697 ([Pa.]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, [] 733 A.2d 1242 ([Pa.]1999).
Issues that are cognizable under the PCRA must be raised in a
timely PCRA petition and cannot be raised in a habeas corpus
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petition. See Commonwealth v. Peterkin, 722 A.2d 638
([Pa.]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). 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, 465–66 (Pa.Super.2013). Styling
a petition as a habeas petition in lieu of a PCRA petition does not remove a
petition from the subject matter of the PCRA, nor does it excuse a petitioner
from complying with the PCRA’s requirements. Commonwealth v.
Breakiron, 781 A.2d 94, 96 n. 2 (Pa.2001) (notwithstanding captioning of
petition, claims only cognizable to the extent they would be cognizable under
the PCRA); Commonwealth v. Peterkin, 722 A.2d 638, 641 (Pa.1998)
(PCRA subsumes habeas corpus and petitioner must abide by PCRA
requirements).
Here, Silvis argues that the murder statute listed in his DOC records,
18 Pa.C.S. § 2502, was not in effect at the time of his trial and sentencing --
and on this basis, he requests (among other things) his release from
custody. This request indicates that Silvis is challenging the legality of his
sentence, a subject within the purview of the PCRA. 42 Pa.C.S. §
9543(a)(2)(vii). Therefore, we will treat Silvis’s petition as a PCRA petition.
Before we address the merits of Silvis’s claim, we must determine
whether the common pleas court had jurisdiction to review his petition. We
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conclude that the court lacked jurisdiction to review Silvis’s petition under
the PCRA’s one-year statute of limitations, 42 Pa.C.S. § 9545(b).
Section 9545 provides that a petition “including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final.” 42 Pa.C.S. § 9545(b)(1); accord Commonwealth v.
Bretz, 830 A.2d 1273, 1275 (Pa.Super.2003). No court has jurisdiction to
hear an untimely PCRA petition. Commonwealth v. Monaco, 996 A.2d
1076, 1079 (Pa.Super.2010) (citing Commonwealth v. Robinson, 837
A.2d 1157, 1161 (Pa.2003)). A judgment is 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. § 9545(b)(3).
Three exceptions to the PCRA’s time-bar provide for very limited
circumstances under which a court may excuse the late filing of a PCRA
petition. 42 Pa.C.S. § 9545(b)(1); Monaco, 996 A.2d at 1079. The late
filing of a petition will be excused if a petitioner alleges and proves:
(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
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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). A petition invoking an exception to the
PCRA time bar must “be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2).1
Silvis’s judgment of sentence became final on March 19, 1972, three
months after December 20, 1971, the date our Supreme Court affirmed his
judgment of sentence on direct appeal. The statute of limitations for filing a
petition for relief under the PCRA expired on March 19, 1973. The present
petition, filed on November 12, 2015, is untimely on its face.
None of the exceptions in section 9545(b)(i-iii) apply to this case.
Silvis does not allege that the government interference or newly acquired
evidence exceptions in section 9545(b)(i-ii) apply to his case. Nor does he
invoke section 9545(b)(iii), which affords relief when the right in question is
a constitutional right that the United States Supreme Court or Pennsylvania
Supreme Court has held to apply retroactively to cases on collateral review.
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1
The 1995 amendments to the PCRA also provided that if the judgment of
sentence became final before the effective date of the amendments (January
16, 1996), a PCRA petition could be filed within one year, or by January 16,
1997. This grace period did not apply to second or subsequent petitions,
regardless of when the first petition was filed. Commonwealth v. Thomas,
718 A.2d 326, 329 (Pa.Super.1999). Silvus filed several post-conviction
petitions in the 1970’s and 1980’s, so this grace period did not apply to him.
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For these reasons, both the common pleas court and this Court lack
jurisdiction over Silvis’s petition.
Order affirmed.2
Judge Lazarus joins the memorandum.
President Judge Emeritus Ford Elliott concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2016
____________________________________________
2
It does not appear that the errors that Silvus complains of entitle him to
release from prison. Although his DOC records refer to a murder statute not
in effect at the time of his trial and sentence (18 Pa.C.S. § 2502), another
murder statute, 18 Pa.C.S. § 4701, was in effect at that time. Our Supreme
Court’s opinion affirming Silvus’s judgment of sentence on direct appeal
provides: “Appellant was tried before a jury which ultimately rendered a
verdict of first-degree murder. After disposition of post-trial motions,
appellant was sentenced to life imprisonment.” Silvus, 284 A.2d at 741.
Obviously, Silvus was convicted of first degree murder, and sentenced to life
imprisonment, under section 4701. The clerical errors in his DOC records
are harmless.
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