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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
MAURICE FUDGE :
:
Appellant : No. 738 MDA 2017
Appeal from the Order Entered March 1, 2017
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000317-2009
BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED SEPTEMBER 25, 2017
Appellant, Maurice Fudge, appeals pro se from the order entered in the
Lycoming County Court of Common Pleas, which dismissed as untimely his
second petition for collateral relief (labeled a petition for writ of habeas
corpus), per the Post Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A. §§
9541-9546. On August 18, 2009, a jury convicted Appellant of two counts
each of robbery and conspiracy to commit robbery, and one count each of
theft, receiving stolen property, simple assault, and terroristic threats. The
court sentenced Appellant on October 20, 2009, to an aggregate term of 10
to 20 years’ imprisonment. This Court affirmed the judgment of sentence on
August 10, 2010, and our Supreme Court denied allowance of appeal on May
23, 2012. See Commonwealth v. Fudge, 11 A.3d 1019 (Pa.Super. 2010),
appeal denied, 616 Pa. 626, 46 A.3d 715 (2012).
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Appellant timely filed a pro se PCRA petition on August 9, 2012. The
court appointed counsel, who filed a motion to withdraw and Turner/Finley1
no-merit letter. On November 16, 2012, the court issued appropriate notice
per Pa.R.Crim.P. 907. The court denied PCRA relief on December 11, 2012,
and granted counsel’s motion to withdraw. This Court affirmed the decision
on September 3, 2013, and our Supreme Court denied allowance of appeal
on February 26, 2014. See Commonwealth v. Fudge, 87 A.3d 370
(Pa.Super. 2013), appeal denied, 624 Pa. 687, 87 A.3d 318 (2014).
Appellant filed the current petition for collateral relief pro se on
January 26, 2017, labeled a petition for writ of habeas corpus. The court
treated the filing as a PCRA petition and issued Rule 907 notice. Appellant
responded pro se on February 24, 2017. The court denied PCRA relief by
order dated March 1, 2017, and entered on the docket on March 13, 2017.
Appellant timely filed a pro se notice of appeal. No concise statement per
Pa.R.A.P. 1925(b) was ordered or filed.
Preliminarily, any petition for post-conviction collateral relief will
generally be considered a PCRA petition, even if captioned as a request for
habeas corpus relief, if the petition raises issues cognizable under the PCRA.
See Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638 (1998); 42
Pa.C.S.A. § 9542 (stating PCRA shall be sole means of obtaining collateral
____________________________________________
1
Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
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relief and encompasses all other common law and statutory remedies for
same purpose). The timeliness of a PCRA petition is a jurisdictional
requisite. Commonwealth v. Turner, 73 A.3d 1283 (Pa.Super. 2013),
appeal denied, 625 Pa. 649, 91 A.3d 162 (2014). A PCRA petition must be
filed within one year of the date the underlying judgment becomes final. 42
Pa.C.S.A. § 9545(b)(1). A judgment is deemed final at the conclusion of
direct review or at the expiration of time for seeking review. 42 Pa.C.S.A. §
9545(b)(3). The exceptions to the PCRA time-bar allow for very limited
circumstances under which the late filing of a petition will be excused; a
petitioner asserting an exception must file a petition within 60 days of the
date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(1-2).
Instantly, Appellant claims the court imposed an illegal mandatory
minimum sentence under 42 Pa.C.S.A. § 9714(a)(1) (sentences for second
and subsequent offenses involving crimes of violence). Appellant’s challenge
is cognizable under the PCRA. See Commonwealth v. Fowler, 930 A.2d
586 (Pa.Super. 2007), appeal denied, 596 Pa. 715, 944 A.2d 756 (2008)
(holding collateral attack on legality of sentence must be raised in PCRA
petition). Thus, the court properly treated Appellant’s most recent filing as a
PCRA petition. See Peterkin, supra. Nevertheless, Appellant’s judgment
of sentence became final on August 21, 2012, upon expiration of the time to
file a petition for writ of certiorari with the U.S. Supreme Court. See
U.S.Sup.Ct.R. 13. Appellant filed the current, pro se serial petition for
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collateral relief on January 26, 2017, which is patently untimely. See 42
Pa.C.S.A. § 9545(b)(1). To the extent Appellant attempts to invoke the
“new constitutional right” exception of Section 9545(b)(1)(iii), relying on
Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151, 186 L.Ed.2d 314
(2013) and its progeny, those cases afford no relief. See Commonwealth
v. Washington, ___ Pa. ___, 142 A.3d 810 (2016) (holding new
constitutional rule announced in Alleyne is not substantive or watershed
procedural rule that warrants retroactive application to collateral attacks on
mandatory minimum sentences, where judgment of sentence became final
before Alleyne was decided). Thus, the PCRA court properly dismissed
Appellant’s petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/2017
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