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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
LAWRENCE WELLS, :
:
Appellant : No. 3559 EDA 2017
Appeal from the PCRA Order October 2, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0414651-1979
BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 16, 2018
Appellant, Lawrence Wells, appeals from the order denying 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 case
as follows:
On November 14, 1980, following a bench trial, before the
Honorable Charles P. Mirarchi, Jr., [Appellant] was found guilty of
first[-]degree murder, possession of an instrument of crime, and
aggravated assault. On October 19, 1981, [Appellant] was
sentenced to a life sentence without parole on the murder
conviction. [Appellant], subsequently, filed a direct appeal and
the Pennsylvania Superior Court affirmed the trial court’s
judgment of sentence on June 22, 1984.2 The Pennsylvania
Supreme Court denied allocatur on January 12, 1987.3
2
Commonwealth v. Wells, 478 A.2d 123 (Pa.
Super. 1984) (unpublished memorandum).
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3
Commonwealth v. Wells, 522 A.2d 558 (Pa.
1987).
On October 6, 1989, [Appellant] filed a pro se petition
pursuant to the Post Conviction Hearing Act (PCHA).4 The petition
was dismissed by the PCRA court on April 3, 1992. [Appellant]
appealed, and the Pennsylvania Superior Court affirmed the
decision on March 16, 1993. [Appellant] did not seek petition for
leave to appeal to the Pennsylvania Supreme Court. Thereafter,
[Appellant] filed a number of petitions under the PCRA; all were
denied.
4
The legislature enacted the Post-Conviction Hearing
Act in 1968. In 1988, it was renamed the Post-
Conviction Relief Act and modified in part and
repealed in part.
On July 31, 2014, [Appellant] filed the instant pro se PCRA
petition, styled as a writ of habeas corpus. Subsequent filings
followed on August 11, 2014, August 14, 2014, and August 14,
2015. This court sent notice of its intent to dismiss5 the petition
as untimely without exception on July 18, 2017. [Appellant] filed
a response to the 907 notice on July 31, 2017 and September 1,
2017. The PCRA petition was formally dismissed by this court on
October 2, 2017. [Appellant] timely filed a notice of appeal to the
Pennsylvania Superior Court on October 16, 2017.
5
Pursuant to Pa.R.Crim.P. 907.
PCRA Court Opinion, 12/22/17, at 1-2. The record reflects that the PCRA court
did not direct Appellant to file a statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). On December 22, 2017, the PCRA court filed
its opinion pursuant to Pa.R.A.P. 1925(a).
Appellant presents the following issues for our review, which we
reproduce verbatim:
1. Did the lower court error finding that there is not an valid
exception to the late filing of the Appellant’s PCRA Petition.
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2. Did the lower court error when it denied and dismissed Pro Se
PCRA/Habeas Corpus Petition.
3. Did the lower court deny Appellant His Constitutional Right to
due process and access to the court.
Appellant’s Brief at 1.
We begin by determining whether Appellant’s “Petition for Writ of
Habeas Corpus” was properly considered to be a PCRA petition.
The scope of the PCRA is explicitly defined as follows:
This subchapter provides for an action by which persons convicted
of crimes they did not commit and persons serving illegal
sentences may obtain collateral relief. The action established
in this subchapter shall be the sole means of obtaining
collateral relief and encompasses all other common law
and statutory remedies for the same purpose that exist
when this subchapter takes effect, including habeas corpus
and coram nobis. This subchapter is not intended to limit the
availability of remedies in the trial court or on direct appeal from
the judgment of sentence, to provide a means for raising issues
waived in prior proceedings or to provide relief from collateral
consequences of a criminal conviction.
42 Pa.C.S. § 9542 (emphasis added).
The plain language of the statute above demonstrates that the General
Assembly intended that claims that could be brought under the PCRA must
be brought under that Act. Commonwealth v. Hall, 771 A.2d 1232, 1235
(Pa. 2001) (emphasis in original). Where a defendant’s claims “are cognizable
under the PCRA, the common law and statutory remedies now subsumed by
the PCRA are not separately available to the defendant.” Id. (citations
omitted). By its own language, and by judicial decisions interpreting such
language, the PCRA provides the sole means for obtaining state collateral
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relief. Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999) (citations
omitted). Thus, it is well settled that any collateral petition raising issues with
respect to remedies offered under the PCRA will be considered a PCRA petition.
Commonwealth v. Deaner, 779 A.2d 578, 580 (Pa. Super. 2001).
The question then is whether the particular claim at issue here, i.e.,
Appellant’s allegations that he was wrongly convicted of the crimes and
therefore is serving an illegal sentence, is a claim that was available to him
under the PCRA. The relevant portion of the PCRA provides as follows:
(a) General rule.--To be eligible for relief under this
subchapter, the petitioner must plead and prove by a
preponderance of the evidence all of the following:
* * *
(2) That the conviction or sentence resulted from
one or more of the following:
(i) A violation of the Constitution of this
Commonwealth or the Constitution or
laws of the United States which, in the
circumstances of the particular case, so
undermined the truth-determining
process that no reliable adjudication of
guilt or innocence could have taken place.
42 Pa.C.S. § 9543(a)(2)(i). Thus, the statute in this matter clearly provides
that claims raising constitutional violations are cognizable under the PCRA. 42
Pa.C.S. § 9543(a)(2)(i).
In addressing the applicability of the PCRA to the petition filed by
Appellant, the PCRA court offered the following analysis:
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[Appellant’s] instant submission styled as a habeas corpus
raised claims that fell within the ambit of the PCRA6 because they
were potentially remediable under it. It is well[ ]settled that the
PCRA is intended to be the sole means for achieving post-
conviction relief. Unless the PCRA can 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.
6
The PCRA provides for an action by which persons
convicted of crimes they did not commit and persons
serving illegal sentence may obtain collateral relief.
“The action established in this subchapter shall be the
sole means of obtaining collateral relief and
encompasses all other common law and statutory
remedies for the same purpose that exist when this
subchapter takes effect, including habeas corpus and
coram nobis.” 42 Pa.Cons.Stat. § 9542.
[Appellant] alleged that his conviction and sentence were
legal nullities. Specifically, [Appellant] argues that his detention
was illegal because he was wrongfully convicted of first[-]degree
murder. He further stated that his petition should not be
construed under the PCRA statute because he was not alleging
innocence, but rather lesser culpability than that of which he was
convicted. Here, [Appellant] was clearly claiming he was innocent
of a crime he was convicted of [committing], specifically first[-]
degree murder. Thus his claim falls within Section 9542 of the
[PCRA], where it is stated “this subchapter provides for an action
by which persons convicted of crimes they did not commit and
persons serving illegal sentences may obtain collateral relief.”
Therefore this court was constrained to review these claims
pursuant to the PCRA’s dictates.
PCRA Court Opinion, 12/22/17, at 2-3 (case citations and footnote omitted).
We are constrained to agree with the PCRA court. Appellant raised
claims in his petition alleging constitutional due-process violations through his
challenge to his conviction, which are cognizable under the PCRA regardless
of the caption of the petition. See Jackson v. Virginia, 443 U.S. 307, 316
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(1979) (establishing that due process requires that the government prove
every element of a crime by proof beyond a reasonable doubt). These claims
are cognizable under the PCRA.1 Hence, the PCRA court had no authority to
entertain the claims raised in the PCRA petition except under the strictures of
the PCRA.2
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
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1
We note that Appellant has included in his filings before the PCRA court an
allegation that the trial court abused its discretion in imposing his sentence.
Challenges to the discretionary aspects of sentencing, however, are not
cognizable under the PCRA. 42 Pa.C.S. § 9543(a)(2)(vii); Commonwealth
v. Fowler, 930 A.2d 586, 593 (Pa. Super. 2007). But see Commonwealth
v. Hernandez, 755 A.2d 1, 6 (Pa. Super. 2000) (holding discretionary aspects
of sentencing claims couched within claim of ineffective assistance of counsel
claim were cognizable under PCRA). Here, as Appellant has not couched his
discretionary aspects claim within an ineffectiveness claim, we conclude it is
not cognizable under the PCRA.
2
To the extent Appellant argues that his petition should be considered a writ
of habeas corpus and not a PCRA petition, we note that his claims do not merit
habeas corpus relief. Appellant attempts to challenge his convictions through
a convoluted argument attacking the sufficiency of the evidence. However,
we have long stated that a writ of habeas corpus cannot “be used to question
the sufficiency or insufficiency of the evidence to sustain a conviction.”
Commonwealth v. Smythe, 195 A.2d 187, 189 (Pa. Super. 1963) (citation
omitted). In addition, Appellant makes several statements averring that his
sentence was inappropriately excessive or harsh. These claims dispute
whether the trial court properly exercised its discretion in fashioning his
sentence. However, “[a] challenge to the discretionary aspects of sentencing
is not a proper basis for habeas corpus relief.” Commonwealth v. Wolfe,
605 A.2d 1271, 1274 (Pa. Super. 1992). Because habeas corpus relief is not
available to Appellant for these claims, we would find no abuse of the court’s
discretion in denying his petition if we had determined that the filing was not
rightfully a PCRA petition.
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PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc)). This Court is limited to determining whether the evidence of
record supports the conclusions of the PCRA court and whether the ruling is
free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.
2016). The PCRA court’s findings will not be disturbed unless there is no
support for them in the certified record. Commonwealth v. Lippert, 85 A.3d
1095, 1100 (Pa. Super. 2014).
A PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). This time
requirement is mandatory and jurisdictional in nature, and the court may not
ignore it in order to reach the merits of the petition. Commonwealth v.
Cintora, 69 A.3d 759, 762 (Pa. Super. 2013).
Effective January 16, 1996, the PCRA was amended to require a
petitioner to file any PCRA petition within one year of the date the judgment
of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment of sentence
“becomes 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). Where a petitioner’s judgment of sentence became final on or
before the effective date of the amendment, a special grace proviso allowed
first PCRA petitions to be filed by January 16, 1997. See Commonwealth v.
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Alcorn, 703 A.2d 1054, 1056-1057 (Pa. Super. 1997) (explaining application
of PCRA timeliness proviso).
However, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and
(iii), is met.3 A petition invoking one of these exceptions must be filed within
sixty days of the date the claim could first have been presented. 42 Pa.C.S.
§ 9545(b)(2). In order to be entitled to the exceptions to the PCRA’s one-
year filing deadline, “the petitioner must plead and prove specific facts that
demonstrate his claim was raised within the sixty-day time frame” under
section 9545(b)(2). Commonwealth v. Carr, 768 A.2d 1164, 1167 (Pa.
Super. 2001).
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3
The exceptions to the timeliness requirement are:
(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), (ii), and (iii).
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As previously stated, the trial court imposed Appellant’s judgment of
sentence on October 19, 1981. This Court affirmed Appellant’s judgment of
sentence on June 22, 1984, and our Supreme Court denied Appellant’s petition
for allocatur on January 12, 1987. Commonwealth v. Wells, 478 A.2d 123
(Pa. Super. 1984), appeal denied, 522 A.2d 558 (Pa. 1987). Appellant did not
file a petition for writ of certiorari in the United States Supreme Court.
Accordingly, Appellant’s judgment of sentence became final on March 13,
1987, which was sixty days after the Pennsylvania Supreme Court denied
review and the time for seeking review with the United States Supreme Court
expired. See 42 Pa.C.S. § 9545(b)(3) (providing that “a judgment becomes
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.”); U.S.Sup.Ct.R. 20.1.4
Thus, Appellant’s judgment of sentence became final prior to the effective date
of the PCRA amendments. Appellant’s instant PCRA petition, filed on July 31,
2014, does not qualify for the grace proviso as it was not Appellant’s first
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4
We observe that the Rules of the Supreme Court of the United States
pertaining to the time limit for filing a petition for writ of certiorari have
changed various times in relation to both length of time and rule number.
Rule 20.1, which was applicable to this case, required the filing of a petition
for a writ of certiorari within sixty days after the Pennsylvania Supreme Court
denied allocatur and became effective August 1, 1984 and was replaced by
Rule 13 effective January 1, 1990.
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petition, nor was it filed before January 16, 1997. Thus, the instant PCRA
petition is patently untimely.
As previously stated, if a petitioner does not file a timely PCRA petition,
his petition nevertheless may be received under any of the three limited
exceptions to the timeliness requirements of the PCRA. 42 Pa.C.S.
§ 9545(b)(1). If a petitioner asserts one of these exceptions, he must file his
petition within sixty days of the date that the exception could be asserted. 42
Pa.C.S. § 9545(b)(2).
Our review of the certified record reflects that Appellant did not
specifically raise the issue of timeliness and did not plead any exception to the
timeliness requirement in his various filings with the PCRA court. Thus
Appellant has not carried his burden to plead and prove applicability of one of
the exceptions to the timeliness requirement. The PCRA court did not commit
any error in dismissing Appellant’s petition as untimely.
Moreover, we note that in his brief to this Court, in contrast to his PCRA
petition and subsequent filings in the PCRA court, Appellant claims that an
exception to the timeliness requirement applies to his case. Specifically,
Appellant attempts to invoke the second exception to the timeliness
requirements. Appellant’s Brief at 5-6. Appellant asserts that “[h]is mental
state rendered him incapable of filing a timely petition.” Id. at 5. Appellant
cites Commonwealth v. Cruz, 852 A.2d 287 (Pa. 2004), and observes that
“[i]t is true that mental incompetence may qualify under the after discovered
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facts exception if the defendant’s incompetence prevents him from being
aware of the facts that gave rise to his claim.” Appellant’s Brief at 5.
However, because the exception was not raised before the PCRA court,
but rather was raised for the first time on appeal to this Court, the exception
has been waived. Appellant’s claim fails because, when reviewing a PCRA
order, we have no authority to consider claims not raised in the PCRA court.
Pa.R.A.P. 302(a). See also Commonwealth v. Edmiston, 851 A.2d 883,
889 (Pa. 2004) (citing Pa.R.A.P. 302(a) for the proposition that an issue not
raised in the PCRA court is waived on appeal); Commonwealth v. Fulton,
830 A.2d 567, 570 n.2 (Pa. 2003) (same).
Even if Appellant’s claimed exception to the timeliness rule was not
waived because of his failure to raise it before the PCRA court, he could not
prevail. The exception raised in Appellant’s brief is that the facts upon which
the claim were based were unknown to Appellant, pursuant to 42 Pa.C.S.
§ 9545(b)(1)(ii). The specific facts were that Appellant suffered hallucinations
while in prison that prevented him from timely filing his PCRA petition while in
prison. Appellant’s Brief at 6. However, Appellant fails to consider another
requirement: that any petition invoking an exception to the PCRA’s timeliness
requirement must “be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2). The petitioner who invokes an
exception is required to plead and to prove that he brought his petition within
this sixty-day period. Commonwealth v. Vega, 754 A.2d 714, 718 (Pa.
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Super. 2000) (citing Commonwealth v. Lark, 746 A.2d 585, 588 (Pa.
2000)). We do not know when Appellant stopped hallucinating and became
capable of filing his PCRA petition. Nowhere in his brief does Appellant
mention, let alone provide facts to demonstrate his adherence to the sixty-
day time limitation. Therefore, even if Appellant’s claimed exception were not
waived for failure to raise it in the PCRA court, it would fail because Appellant
has not demonstrated that he raised the exception within sixty days of the
time that it first could have been raised. Hence, the attempt to invoke the
second exception fails.
The PCRA petition was untimely and no exceptions apply. Therefore,
the PCRA court lacked jurisdiction to address any claims presented. See
Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (holding
that PCRA court lacks jurisdiction to hear an untimely petition). Likewise, we
lack the authority to address the merits of any substantive claims raised in
the PCRA petition. See Commonwealth v. Bennett, 930 A.2d 1264, 1267
(Pa. 2007) (“[J]urisdictional time limits go to a court’s right or competency to
adjudicate a controversy.”).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/16/2018
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