J-S02039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KENNETH SAXTON
Appellant No. 925 EDA 2016
Appeal from the PCRA Order February 16, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1007631-1980
BEFORE: FORD ELLIOTT, P.J.E., STABILE, J., and MOULTON, J.
MEMORANDUM BY MOULTON, J.: FILED JUNE 29, 2017
Kenneth Saxton appeals, pro se, from the February 16, 2016 order
entered in the Philadelphia County Court of Common Pleas dismissing as
untimely his petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court summarized the relevant procedural history of this
matter as follows:
In 1981, following a non-jury trial, [Saxton] was
convicted of first-degree murder and possession of an
instrument of crime.[1] On May 7, 1981, [Saxton] was
sentenced to life imprisonment on the murder conviction
and a lesser concurrent term of imprisonment on the
possession charge.
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1
18 Pa.C.S. §§ 2502(a) and 907, respectively.
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Newly appointed counsel filed an appeal to the Superior
Court, asserting that trial counsel’s assistance was
constitutionally ineffective. The Superior Court, by an
order dated June 29, 1984, remanded the matter to the
trial court to supplement the record so that the assertions
of ineffectiveness could be addressed. Upon review,
despite finding that trial counsel was ineffective, the
Superior Court determined that the resulting error was
harmless and therefore affirmed the judgments of
sentence.2 On October 15, 1987, the Pennsylvania
Supreme Court affirmed the judgments of sentence,
concluding that counsel was not constitutionally
ineffective.3
2
Commonwealth v. Saxton, 501 A.2d 293
(Pa. Super. 1985) [(unpublished mem.)].
3
Commonwealth v. Saxton, 532 A.2d 352
(Pa. [] 1987).
[Saxton] has unsuccessfully pursued collateral relief in
the intervening years following the finality of his
judgments of sentence. [Saxton]’s current PCRA petition
was filed pro se on April 14, 2014. Pursuant to
Pennsylvania Rule of Criminal Procedure 907, [Saxton] was
served with notice of the court’s intention to dismiss his
PCRA petition on January 25, 2016. The PCRA court
dismissed [Saxton]’s petition as untimely on February 16,
2016. [Saxton] filed the instant notice of appeal to the
Superior Court on March 15, 2016.
Opinion, 5/16/16, at 1-2 (“PCRA Ct. Op.”) (footnote omitted).
Saxton’s brief does not contain a statement of questions involved.
However, from the argument section of his brief, we are able to discern the
sole issue he raises before this Court: Whether the PCRA court erred and
abused its discretion when it dismissed Saxton’s petition, styled as a petition
for writ of habeas corpus, as time-barred. See Saxton’s Br. at 6.
First, we must determine whether the PCRA court properly treated
Saxton’s petition as a PCRA petition.
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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
could 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.
See Commonwealth v. Taylor, 65 A.3d 462, 465–66 (Pa.Super. 2013)
(citations and footnote omitted). Because the claim raised in the petition,2
that Saxton was deprived of “conflict-free counsel” because appointed
criminal defense attorneys are agents of the Commonwealth, is cognizable
under the PCRA, see 42 Pa.C.S. § 9543(a)(2)(i), (ii),3 the PCRA court
properly treated Saxton’s writ of habeas corpus as a PCRA petition.
____________________________________________
2
In his PCRA petition, Saxton makes three claims that raise the same
substantive issue.
3
On appeal, Saxton’s sole argument is “actual innocence.” See
Saxton’s Br. at 8. We note that his only reference to this claim in the PCRA
court was half a sentence at the end of the “Statement of Questions
Involved” included in his PCRA petition, styled as a “Petition for Writ of
Habeas Corpus.” Pet. for Writ of Habeas Corpus, 4/14/14, at 9. We further
note that, if properly raised below, the PCRA court would also have been
required to treat the “actual innocence” claim as arising under the PCRA.
See Commonwealth v. Abu-Jamal, 833 A.2d 719, 728 (Pa. 2003)
(holding that although the term “actual innocence” is not used in section
9543 enumerating claims cognizable under the PCRA, because the PCRA is
meant to provide a means of relief for those convicted of crimes they did not
commit and is meant to be the sole means of obtaining collateral relief, a
claim of “actual innocence” is cognizable under the PCRA rather than in a
writ for habeas corpus).
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Next, we must determine whether Saxton’s PCRA petition was timely
filed.
Our standard of review from the denial of PCRA relief “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).
It is well settled that “the timeliness of a PCRA petition is a
jurisdictional requisite.” Commonwealth v. Brown, 111 A.3d 171, 175
(Pa.Super.), app. denied, 125 A.3d 1197 (Pa. 2015). A PCRA 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). 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).
The Pennsylvania Supreme Court affirmed Saxton’s judgment of
sentence on October 15, 1987. He did not file a petition for writ of certiorari
with the United States Supreme Court. Saxton’s current petition, filed on
April 14, 2014, is therefore facially untimely.
Courts may consider a PCRA petition filed more than one year after a
judgment of sentence became final only if the petitioner alleges and proves
one of the following three statutory exceptions:
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(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. § 9545(b)(1)(i)-(iii); see Brown, 111 A.3d at 175-76. In
addition, when invoking an exception to the PCRA time bar, the petition
must “be filed within 60 days of the date the claim could have been
presented.” 42 Pa.C.S. § 9545(b)(2).
The trial court found that Saxton’s “attempt to repackage his
ineffectiveness claims was wholly insufficient to demonstrate timeliness.”
PCRA Ct. op. at 4-5. We agree. Because Saxton failed to allege and prove
one of the exceptions to the one-year time bar, the PCRA court properly
dismissed his PCRA petition as untimely. See Commonwealth v.
Wharton, 886 A.2d 1120, 1126 (Pa. 2005) (“It is well settled that
allegations of ineffective assistance of counsel will not overcome the
jurisdictional timeliness requirements of the PCRA.”).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2017
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