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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
FRANCISCO PEREZ
Appellant No. 130 MDA 2016
Appeal from the PCRA Order December 31, 2015
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003313-2000
BEFORE: BOWES, PANELLA AND JENKINS, JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 19, 2016
Francisco Perez appeals from the order entered December 31, 2015,
dismissing his petition for writ of habeas corpus as an untimely serial PCRA
petition. We affirm.
The trial court summarized the relevant underlying factual and
procedural history as follows:
In December 1999, Appellant drove to Atlantic City, New
Jersey, in an attempt to purchase $ 5,000 worth of marijuana
from Herbert Deibert. Appellant gave Deibert the money and
Deibert drove off to retrieve the marijuana. Diebert never
returned. Appellant never received the marijuana [and] the
money was never returned to Appellant. On May 7, 2000,
Deibert and a man named Ryan Miller were in a Berks County
apartment preparing to smoke cocaine. Appellant had an
apartment across the street. Witnesses observed Appellant
running with a handgun into the building occupied by Deibert
and Miller. Appellant entered the apartment and fired multiple
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shots at Deibert and Miller. Appellant shot Miller in the calf and
back and shot Deibert in the right leg and thigh. Appellant fled
the area, but was apprehended later near a restaurant in
Philadelphia.
Following a jury trial held March 13, 2001, through March
15, 2001, Appellant was found guilty [of numerous charges
under two dockets, including attempted first degree murder and
various weapons crimes]. Appellant was sentenced to an
aggregate term of thirty-four and a half (34 ½) to seventy-three
(73) years of incarceration. On April 16, 2001, Appellant filed a
Notice of Appeal to the Superior Court. The judgments of
sentence were affirmed in part and reversed in part on October
3, 2002. On December 2, 2003, the Supreme Court of
Pennsylvania reversed the decision of the Superior Court [and
affirmed the judgment of sentence]. Thereafter, Appellant filed
a series of PCRA petitions, beginning on June 17, 2004. This
petition, his seventh, was filed on September 8, 2015.
PCRA Court Opinion, 3/22/16, at 1-2. Appellant styled the instant petition
as a writ of habeas corpus. He asserts, inter alia, the ineffectiveness of
counsel appointed to litigate his first PCRA petition. The court below treated
Appellant’s petition as a PCRA petition and issued a Pa.R.Crim.P. 907 notice
of its intent to dismiss the petition without a hearing. The trial court
thereafter dismissed Appellant’s petition as untimely. This timely appeal
followed. Appellant presents two issues for our review.
1. Did the lower court err in treating Appellant’s Petition for Writ
of Habeas Corpus Ad Subjiciendum as a petition pursuant to
the Post-Conviction Collateral Relief Act?
2. Was counsel for Appellant during initial PCRA proceedings
ineffective for failing to raise an Apprendi challenge to the
illegally imposed sentence of twenty (20) to forty (40) years
as a result of Appellant’s conviction for attempted first degree
murder?
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Appellant’s brief at 3.
Initially, we find that the PCRA court properly treated Appellant’s
habeas motion as a PCRA petition. Under established Pennsylvania
precedent, “the PCRA is intended to be the sole means of achieving post-
conviction relief.” Commonwealth v. Taylor 65 A.3d 462, 465 (Pa.Super.
2013); Commonwealth v. Descardes, 136 A.3d 493, 498 (Pa. 2016)
(“This Court has construed [42 Pa.C.S. § 9542] as manifesting the
legislature’s intent that the PCRA be the sole means by which an appellant
may collaterally challenge his conviction.”). Thus, “[u]nless the PCRA could
not provide for a potential remedy, the PCRA statute subsumes the writ of
habeas corpus.” Taylor, supra at 465-466 (citing Commonwealth v.
Fahy, 737 A.2d 214 (Pa. 1999); Commonwealth v. Chester, 733 A.2d
1242 (Pa. 1999)). Furthermore, “[i]ssues that are cognizable under the
PCRA must be raised in a timely PCRA petition and cannot be raised in a
habeas corpus petition. Taylor, supra. at 466; Descardes, supra at 501
(“where a claim is cognizable under the PCRA, the PCRA is the only method
of obtaining collateral review.”). Finally, “a defendant cannot escape the
PCRA time-bar by titling his petition or motion as a writ of habeas corpus.”
Id.
A claim is cognizable under the PCRA if it challenges the petitioner’s
conviction, sentence, or the effectiveness of counsel during the plea process,
trial, appeal or PCRA review. 42 Pa.C.S. § 9543. The Court announced in
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Commonwealth ex rel. Dadario v. Goldberg, 773 A.2d 126, 129-130
(Pa. 2001), that § 9543(a)(2)(ii) of the PCRA permits “all constitutionally-
cognizable claims of ineffective assistance of counsel to be raised in a PCRA
petition.”
Appellant contends that the trial court erred in treating his habeas
corpus petition as a PCRA petition. He asserts that, since there is no
constitutional right to counsel for a PCRA proceeding, his claim of ineffective
assistance was not premised upon a violation of the Sixth Amendment of the
United States Constitution, or Article I, Section 9 of the Pennsylvania
Constitution. Appellant concludes, pursuant to Dadario, supra, that since
his claim does not raise constitutional grounds for effective assistance of
counsel, it is not cognizable under the PCRA. We disagree.
The due process clause of the Fourteenth Amendment guarantees
state criminal defendants certain procedural safeguards. Once a post-
conviction procedure is provided by a state, that procedure is required to
meet basic and fundamental due process requirements. Commonwealth v.
Burkett, 5 A.3d 1260, 1276 (Pa.Super. 2010). Although there is no
constitutional mandate that a state provide counsel for an initial PCRA
petition, the Pennsylvania rules of criminal procedure require the
appointment of such counsel for a first PCRA petition and for ensuing PCRA
petitions when justice requires. See Pa.R.Crim.P. 904(E). Under
Pa.R.Crim.P. 904(F)(2) and Burkett, supra, when counsel is appointed in a
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PCRA proceeding, counsel must be effective pursuant to the constitutional
guarantees enumerated in the due process clause. Thus, Appellant’s claim is
cognizable under the PCRA. Dadario, supra.
Having found that Appellant’s petition was cognizable under the PCRA,
we turn to determining whether it is properly before us. We observe that an
untimely PCRA petition renders Pennsylvania courts without jurisdiction to
afford relief. Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super.
2013). “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 is plenary.” Id. (citations omitted).
The PCRA specifies that all PCRA petitions must be filed within one
year of the date on which the judgment of sentence became final, unless
one of the statutory exceptions set forth in 42 Pa.C.S. § 9545(b)(1) applies.
The petitioner bears the burden to plead and prove that a statutory
exception applies. If the petition is found to be untimely, and the petitioner
has not pled and proven an exception, the petition must be dismissed
without a hearing because Pennsylvania courts are without jurisdiction to
consider the merits of the petition. Commonwealth v. Jackson, 30 A.3d
516, 519 (Pa.Super. 2011).
Title 42 Pa.C.S. § 9545(b)(1) and (2) provide:
(b) Time for filing petition. –
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(1) Any petition under this subchapter, including a
second or subsequent petition, shall be filed within
one year of the date the judgment of sentence
becomes final, unless the petition alleges and the
petitioner proves that:
(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.
(2) Any petition invoking an exception provided in
paragraph (1) shall be filed within 60 days of the date the
claim could have been presented.
42 Pa.C.S. § 9545(b)(1) and (2).
We previously found that Appellant’s judgment of sentence became
final on March 2, 2004, following the expiration of Appellant’s opportunity to
petition for review with the United States Supreme Court. Commonwealth
v. Perez, 974 A.2d 1189 (Pa.Super. 2009) (unpublished memorandum at
5). Thus, Appellant had until March 2, 2005 to file a timely PCRA petition,
and the instant PCRA petition, filed on September 8, 2015, is facially
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untimely. Appellant has not invoked any of the statutory exceptions to the
time-bar. Accordingly, the PCRA court properly concluded that the petition
was untimely. Jackson, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2016
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