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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JAMES ALBERT HOLLAND :
:
Appellant : No. 1601 WDA 2017
Appeal from the PCRA Order September 28, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0003142-1976
BEFORE: OTT, J., MURRAY, J., and STEVENS, P.J.E.
MEMORANDUM BY OTT, J.: FILED NOVEMBER 28, 2018
James Albert Holland appeals, pro se, from the order entered September
28, 2017, in the Allegheny County Court of Common Pleas, dismissing his
petition for writ of mandamus, which the court construed to be an untimely
petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”).1 Holland seeks relief from the judgment of sentence of 10 to 20
years’ imprisonment, imposed on December 20, 1976, following his jury
conviction of robbery, theft and recklessly endangering another person
(“REAP”).2 On appeal, Holland contends the trial court violated his rights when
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Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
2 See 18 Pa.C.S. §§ 3701, 3921, and 2705, respectively.
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it failed to quash his indictment, and the PCRA court erred when it construed
his mandamus petition to be an untimely PCRA petition. We affirm.
The pertinent facts and procedural history are as follows. On October
29, 1976, a jury found Holland guilty of robbery, theft, and REAP. On
December 20, 1976, the court sentenced him to an aggregate term of 10 to
20 years’ imprisonment. He filed a direct appeal to this Court. However, while
the appeal was pending, Holland escaped from prison and became a fugitive.
Consequently, this Court quashed his direct appeal on November 1, 1978.
See Commonwealth v. Albert,3 393 A.2d 991 (Pa. Super. 1978).
It is unclear from the certified record provided to us when Holland was
apprehended. However, in a prior appeal, a panel of this Court explained:
On September 19, 1980, Holland was sentenced to one to two
years in prison on an escape conviction. This sentence was to run
concurrent to the sentence imposed [in the present case]. On
November 20, 1981, Holland was sentenced to two and one-half
to five years in prison for possessing a weapon or implement of
escape. This sentence was to run consecutive to Holland’s prior
sentences, for an aggregate sentence of twelve and one-half to
twenty-five years in prison.1
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1 We note that Holland was sentenced to twelve to thirty years in
prison in 1959. Holland was paroled in 1971; however, his
convictions in 1976 resulted in a revocation of his parole and
Holland was sentenced to the balance of his 1959 sentence.
Accordingly, Holland did not begin serving the above
aggregate sentence until April 14, 1996.
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3 The caption in Holland’s prior appeals identify him as “James Albert, a/k/a
James Holland.” See Albert, supra. However, in this appeal, he refers to
himself as “James Albert Holland.”
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Commonwealth v. Albert, 987 A.2d 808 (Pa. Super. 2009) (unpublished
memorandum at 1-2), appeal denied, 991 A.2d 309 (Pa. 2010).
On February 2, 1987, Holland filed a petition for collateral relief under
the Post Conviction Hearing Act, the predecessor to the PCRA. The trial court
denied relief, this Court affirmed on appeal, and the Pennsylvania Supreme
Court denied Holland’s petition for allowance of appeal. See Commonwealth
v. Albert, 551 A.2d 592 (Pa. Super. 1988) (unpublished memorandum),
appeal denied, 558 A.2d 530 (Pa. 1989). Thereafter, Holland sought relief
under the now-repealed 61 P.S. § 81, requesting modification of his sentence
due to a medical condition. Counsel was appointed, and filed an amended
petition on November 15, 2007, which the trial court denied. This Court
subsequently affirmed the trial court’s ruling, and the Pennsylvania Supreme
Court denied Holland’s petition for allowance of appeal. See Albert, supra,
987 A.2d 808.
On May 10, 2017, Holland filed a pro se petition for writ of mandamus.4
He alleged his indictment was “totally defective” because the complainant,
Edward Koeach, did not appear “before the justice of the peace’s hearing,”
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4 The Pennsylvania Supreme Court has explained:
A proceeding in mandamus is an extraordinary action at common
law, designed to compel performance of a ministerial act or
mandatory duty where there exists a clear legal right in the
plaintiff, a corresponding duty in the defendant, and want of any
other adequate and appropriate remedy.
Coady v. Vaughn, 770 A.2d 287, 289 (Pa. 2001).
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which Holland waived, or before the indicting grand jury. Petition for Writ of
Mandamus, 5/10/17, at 2. Moreover, he claimed his “accuser” identified him
during an improper show-up at the jail under a ruse that Holland was meeting
with his attorney. Id. at 1. Holland also asserted another witness, William
Moore, who was not named in the indictment, testified against him at trial as
a victim of the crime. See id. Therefore, Holland insisted he was denied
procedural due process. See id. at 3. On August 10, 2017, the PCRA court
issued notice of its intent to treat the request for relief as a PCRA, and dismiss
it without first conducting an evidentiary hearing pursuant to Pa.R.Crim.P.
907. Holland did not file a response to the court’s Rule 907 notice, and on
September 28, 2017, the PCRA court dismissed the petition as patently
frivolous. This timely appeal followed.5
Holland raises two issues in his brief, which we will consider in reverse
order. First, he contends the PCRA court erred in converting his petition for
writ of mandamus to a PCRA petition, rather than a state habeas petition,6 so
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5We note the PCRA court’s order dismissing the petition was entered on the
docket on October 2, 2017. Therefore, Holland’s notice of appeal, filed on
October 31, 2017, was timely.
On November 14, 2017, the trial court ordered Holland to filed a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Holland complied with the court’s directive, and filed a concise statement on
December 11, 2017.
6 Holland appears to concede a petition for writ of mandamus was not the
proper vehicle for him to obtain the relief he seeks. See Holland’s Brief at 7-
9.
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that he would not be subject to the PCRA’s time limitations. See Holland’s
Brief at 7-9. Furthermore, he argues his grand jury indictment should have
been quashed by the trial court because (1) the complainant’s name was not
“endorsed on the indictment,” and (2) Holland was subject to an improper
show-up while in prison. Holland’s Brief at 5.
Preliminarily, we note Holland’s claim that the court improperly treated
his request for relief as a PCRA petition, was not included in either his
Pa.R.A.P. 1925(b) concise statement, or the statement of questions section of
his brief. Rather, in both documents he raised the following two issues: (1)
his rights were violated when “the trial court failed to quash the indictment[;]”
and (2) the PCRA court erred “when it refused to vacate [his] judgment of
sentence[.]” Concise Statement of Errors on this Appeal, 12/11/2017, at 1-
2; Holland’s Brief at 2. Accordingly, Holland’s contention that the court
improperly reframed his request for relief as a PCRA petition is waived.7 See
Commonwealth v. Garland, 63 A.3d 339, 342 (Pa. Super. 2013).
Next, Holland insists the PCRA court erred in failing to grant him relief
regarding his claim that the trial court should have quashed his indictment.
See Holland’s Brief at 7. Our review of an order denying PCRA relief is “limited
to a determination of whether the record supports the PCRA court’s factual
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7 We emphasize, also, Holland did not respond to the PCRA court’s Rule 907
notice, filed on August 10, 2017, when the court informed him it was treating
his petition for writ of mandamus as a PCRA petition. See Notice of Intent to
Dismiss, 8/10/2017.
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findings and whether its legal conclusions are free from error.”
Commonwealth v. Williams, 141 A.3d 440, 452 (Pa. 2016).
Here, the PCRA court found Holland’s petition was untimely filed, and
Holland failed to plead or prove the applicability of any one of the
time-for-filing exceptions set forth in 42 Pa.C.S. § 9545(b)(1). See Trial Court
Opinion, 2/13/2018, at 1-2. We agree.
The requirement that a PCRA petition must be filed within one year of
the date the underlying judgment becomes final “is mandatory and
jurisdictional in nature.” Commonwealth v. Taylor, 67 A.3d 1245, 1248
(Pa. 2013), cert. denied, 134 S.Ct. 2695 (U.S. 2014). “The court cannot
ignore a petition’s untimeliness and reach the merits of the petition.” Id.
A PCRA petition must be filed within one year of the date the underlying
judgment becomes final. See 42 Pa.C.S. § 9545(b)(1). Holland’s judgment
of sentence was final on December 1, 1977, thirty days after this Court
quashed his direct appeal, and he failed to petition the Pennsylvania Supreme
Court for review. Therefore, he had until December 1, 1978, to file a timely
PCRA petition,8 and the one filed herein on May 10, 2017, is manifestly
untimely.
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8We recognize the 1995 amendments to the PCRA provided a one-year grace
period for a petitioner to file a first petition, when his judgment of sentence
was final before the effective date of the amendment, that is, January 16,
1996. See Commonwealth v. Albrecht, 994 A.2d 1091, 1093 n.2 (Pa.
2010). The present petition, however, was Holland’s second, and, in any
event, was filed more than 20 years later.
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Nevertheless, an untimely petition may still be considered if “the petition
alleges and the petitioner proves” one of the time-for-filing exceptions set
forth in Section 9545(b)(1). See 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Here,
Holland did not address the applicability of a timing exception in either his
petition, or his appellate brief. Accordingly, we agree with the trial court’s
assessment that Holland’s petition if manifestly untimely, and Holland is
entitled to no relief.9
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/28/2018
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9 We note, too, it appears Holland is no longer serving a sentence for the
conviction he is challenging. The PCRA requires a petitioner prove that at the
time relief is granted, he is “currently serving a sentence of imprisonment,
probation or parole for the crime[.]” 42 Pa.C.S. § 9543(a)(1)(i) (emphasis
supplied). In a prior appeal, a panel of this Court explained that Holland began
serving his sentence for the present offenses on April 14, 1996. See Albert,
supra, 987 A.2d 808 (unpublished memorandum at 2 n.1). Although that
prior decision aggregated the sentences imposed for his later convictions of
escape in 1980, and possessing a weapon or implement of escape in 1981,
the twenty-year maximum sentence for the present offenses would have
expired on April 14, 2016.
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