J-S96017-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
GIRARD WEST
Appellant No. 430 WDA 2016
Appeal from the PCRA Order February 26, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s):
CP-02-CR-0000527-2001
CP-02-CR-0000528-2001
CP-02-CR-0000529-2001
CP-02-CR-0000531-2001
CP-02-CR-0005223-2001
BEFORE: BENDER, P.J.E., BOWES, J., AND SOLANO, J.
MEMORANDUM BY BOWES, J.: FILED JANUARY 9, 2017
Girard West appeals from the February 26, 2016 order denying him
PCRA relief. We affirm.
Appellant was charged in these actions with seventeen counts of
burglary and one count each of attempted theft and possession of an
instrument of crime. Appellant was entering properties, including homes
and apartment buildings, throughout Pittsburgh and removing stained glass
windows and other items such as mantels, brass, and fixtures. After he was
identified in connection with one crime and his fingerprints were found at the
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scene of another, Appellant confessed to the criminal enterprise and
indicated that he committed the burglaries to support a drug habit. On June
21, 2001, he entered a guilty plea to seventeen counts of burglary and was
sentenced on September 25, 2011, to sixteen to thirty-two years
imprisonment. After his post-sentence motion to withdraw his guilty plea
was denied, Appellant appealed, and, on September 16, 2003, we affirmed.
Commonwealth v. West, 835 A.2d 838 (Pa. 2003) (unpublished
memorandum).
Appellant filed a PCRA petition on October 9, 2003. Counsel was
appointed, and filed an amended petition. After the PCRA court conducted a
hearing, it denied PCRA relief on May 12, 2004, and we affirmed.
Commonwealth v. West, 881 A.2d 892 (Pa.Super. 2005) (unpublished
memorandum). Appellant filed a second petition on June 15, 2006, which
was denied. We affirmed by order dated August 13, 2007.
Commonwealth v. West, 935 A.2d 26 (Pa.Super. 2007) (unpublished
memorandum). We noted therein that, since Appellant had not filed a
petition for allowance of appeal, his judgment of sentence became final for
purposes of the PCRA on October 16, 2003, and he had until October 16,
2004, to file a timely PCRA petition. We concluded that Appellant’s June 15,
2006 petition was untimely.
On April 19, 2015, Appellant filed another petition, which he styled as
a motion for habeas corpus relief and wherein he sought to vacate his
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sentence based upon its purported illegality. That motion was denied on
February 26, 2016, and this appeal followed. Appellant claims are as
follows:
I. Was petitioner unconstitutionally den[ie]d by a state court, the
retroactive rel[ie]f and application of U.S. Supreme Court
decisions, "United States v. Alleyne, Greer, Johnson, Shavers,
Booker; denied the application of Marbury v. Madison, Testa v.
Katt; the Harper rule pursuant to Article VI. Clause 2. "the
Supremacy Clause, "nunc pro tunc?
II. Whether the state court by its refusal to apply the decisions
Alleyne -Apprendi, via the supremacy clause to the appellant's
case nunc pro tunc, was tantamount to a state court committing
a unconstitutional structural defect?
III. Whether Appellant's sentence is illegal?
Appellant’s brief at 3.1
Initially, we note that Appellant’s so-called habeas corpus petition
must be treated as a PCRA petition.
It is well-settled that the PCRA is intended to be the sole means
of achieving post-conviction relief. Unless the PCRA could not
provide for a potential remedy, the PCRA statute subsumes the
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1
These averments have been construed by the PCRA court and the
Commonwealth as raising a challenge to Appellant’s sentence based upon
Alleyne v. United States, 133 S.Ct. 2151 (2013). In that decision, the
Court held that any fact, other than a prior conviction, that invokes
application of a mandatory minimum sentence must be submitted to a jury
and proven beyond a reasonable doubt. However, the sentencing order
entered herein indicates that no mandatory sentence was imposed.
Furthermore, our Supreme Court has ruled in Commonwealth v.
Washington, 142 A.3d 810, 811 (Pa. 2016), that Alleyne does not apply
retroactively “to attacks upon mandatory minimum sentences advanced on
collateral review.”
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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.
Commonwealth v. Taylor, 65 A.3d 462, 465–66 (Pa.Super. 2013). Claims
pertaining to the legality of a sentence are cognizable under the PCRA,
Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999), and we regard the
motion at issue as a PCRA petition.
This Court reviews the “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. Roane, 142 A.3d 79, 86 (Pa. Super. 2016)
(quoting Commonwealth v. Treiber, 121 A.3d 435, 444 (Pa. 2015)). The
present petition was dismissed as untimely.
All PCRA petitions must be filed within one year of the date a
defendant’s judgment becomes final unless an exception to the one-year
time restriction applies. 42 Pa.C.S. § 9545(b)(1). If a PCRA petition is
untimely, “neither this Court nor the trial court has jurisdiction over the
petition.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super. 2014).
(citation omitted); see also Commonwealth v. Chester, 895 A.2d 520,
522 (Pa. 2006).
We have previously noted that Appellant’s judgment of sentence
became final on October 16, 2003, and that he had until October 16, 2004,
to file a timely PCRA petition under § 9545. The present April 19, 2015
petition is thus untimely. We further observe that, even though cognizable
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under the PCRA, illegality of sentencing issues must be brought in a timely
manner. Fahy, supra; Commonwealth v. Jackson, 30 A.3d 516
(Pa.Super. 2011). Appellant has not invoked any exception to the one-year
time bar. Hence, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/9/2017
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