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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
FRANCISCO ALGARIN,
Appellant No. 2212 EDA 2016
Appeal from the PCRA Order Entered June 28, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0928871-1993
BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 07, 2017
Appellant, Francisco Algarin, appeals pro se from the post-conviction
court’s June 28, 2016 order denying, as untimely, his third petition filed
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541-9546. We
affirm.
Briefly, in October of 1992, Appellant was arrested and charged with
various offenses, including murder, based on his act of shooting and killing
Mina Myers. After Myers’ murder, Appellant “hired a man to physically
assault” a witness to whom Appellant had confessed, and “the man fulfilled
the contract by beating [that witness] with a metal rod.” PCRA Court
Opinion (PCO), 10/19/16, at 3 (citations to the record omitted). Following a
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*
Former Justice specially assigned to the Superior Court.
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jury trial in June of 1994, Appellant was convicted of first-degree murder,
conspiracy, aggravated assault, intimidation of a witness, and firearm
violations. “The jury deadlocked following a penalty phase hearing, so the
court imposed a sentence of life imprisonment on the murder conviction and
lesser consecutive terms of incarceration on the remaining charges on
October 26, 1994.” Id. at 1. Appellant filed a timely direct appeal and,
after this Court affirmed his judgment of sentence, our Supreme Court
denied his petition for allowance of appeal on August 12, 1997.
Commonwealth v. Algarin, 698 A.2d 104 (Pa. Super. 1997) (unpublished
memorandum), appeal denied, 701 A.2d 574 (Pa. 1997).
The PCRA court summarized the ensuing procedural history of
Appellant’s case as follows:
In August of 1998, [Appellant] filed his first PCRA petition,
pro se. Counsel was appointed and subsequently filed a
Turner/Finley no-merit letter.3 The PCRA court denied the
petition and permitted counsel to withdraw. The Superior Court
affirmed the PCRA court’s order on November 10, 1999.4 The
Pennsylvania Supreme Court denied allocatur on April 4, 2000.5
3
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.
1988) (en banc).
4
Commonwealth v. Algarin, 748 A.2d 1248 (Pa. Super.
1999) (unpublished memorandum).
5
Commonwealth v. Algarin, 757 A.2d 927 (Pa. 2000).
On March 16, 2006, [Appellant] filed his second pro se
PCRA petition. The PCRA court dismissed the petition as
untimely on May 29, 2006. The Superior Court affirmed the
PCRA court’s order on April 20, 2007.6
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6
Commonwealth v. Algarin, 928 A.2d 1117 (Pa. Super.
2007) (unpublished memorandum).
On December 8, 2015, [Appellant] filed the current pro se
collateral petition captioned as a habeas corpus petition.
[Appellant’s] supplemental petition for habeas corpus relief, filed
February 10, 2016, was reviewed jointly. Pursuant to
Pennsylvania Rule of Criminal Procedure 907, [Appellant] was
served with notice of the court’s intention to dismiss his PCRA
petition on April 19, 2016. [Appellant] filed a response to the
court’s Rule 907 notice on April 29, 2016. The [PCRA] court
dismissed [Appellant’s] petition as untimely and denied habeas
corpus relief on June 28, 2016. [Appellant] timely filed the
instant notice of appeal to the Superior Court on July 6, 2016.
PCO at 2 (one footnote omitted).
While the PCRA court did not order Appellant to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal, it filed a Rule
1925(a) opinion on October 19, 2016. Herein, Appellant raises the following
three issues for our review, which we have reordered for ease of disposition:
A. Whether the [PCRA] court abused its discretion in dismissing
Appellant’s Petition for Writ of Habeas Corpus Ad Subjiciendum
where the verdict [for] First Degree Murder … was in error in
that the [c]ourt did not have jurisdiction of the matter, where
the Criminal Information filed in this action were [sic] fatally
defective since it failed to recite all of the essential elements of
the offense and failed to inform Appellant of the precise charge
he was required to defend against at trail [sic]?
B. Whether the Pennsylvania Penal Statute 18 Pa.C.S. § 1102(a)
violates due process, is unconstitutional, and void under the
vagueness doctrine?
C. Whether the [PCRA] court abused its discretion in dismissing
Appellant’s Petition for Writ of Habeas Corpus Ad Subjiciendum
since he is confined absent a Sentencing Order required by 42
Pa.C.S. § 9764(a)(8)?
Appellant’s Brief at 3.
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Preliminarily, we must review the court’s decision to treat Appellant’s
first two claims as being cognizable under the PCRA, despite that Appellant
raised them in a petition for writ of habeas corpus. This Court has
explained:
It is well-settled that the PCRA is intended to be the sole means
of achieving post-conviction relief. 42 Pa.C.S. § 9542;
Commonwealth v. Haun, 613 Pa. 97, 32 A.3d 697 (2011).
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.
Commonwealth v. Taylor, 65 A.3d 462, 465–66 (Pa. Super. 2013)
(internal citations and footnote omitted).
Here, in Appellant’s first issue, he contends “that because the criminal
information charging him was deficient, subject matter jurisdiction never
vested in the trial court.” PCO at 3; see also Appellant’s Brief at 8-10. The
court concluded that Appellant’s “challenge pertaining to the trial court’s
jurisdiction was cognizable under the PCRA[,]” citing 42 Pa.C.S. §
9543(a)(2)(viii) (providing that a claim that a conviction or sentence
resulted from “[a] proceeding in a tribunal without jurisdiction” is cognizable
under the PCRA). The court did not err in this decision. Based on section
9543(a)(2)(viii), it is clear that the PCRA affords relief for the type of claim
raised by Appellant in his first issue.
The same is true for the second issue presented by Appellant, wherein
he argues “that he was sentenced pursuant to an unconstitutional statute,
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18 [Pa.C.S.] § 1102(a)….” PCO at 4. Again, we agree with the PCRA court’s
decision that this issue is cognizable under the PCRA, as it “implicate[s] the
legality of [Appellant’s] sentence….” Id. (citing 42 Pa.C.S. §
9543(a)(2)(vii)); see also 42 Pa.C.S. § 9542 (stating that the PCRA
“provides for an action by which … persons serving illegal sentences may
obtain collateral relief”); Commonwealth v. Hockenberry, 689 A.2d 283,
288 (Pa. Super. 1997) (concluding that a challenge to the legality of a
sentence is cognizable under the PCRA).
Accordingly, Appellant’s first two issues were properly treated as PCRA
claims by the court. Thus, in reviewing the court’s denial of those claims,
we assess whether the determination of the PCRA court is supported by the
evidence of record and is free of legal error. Commonwealth v. Ragan,
923 A.2d 1169, 1170 (Pa. 2007). We must begin by addressing the
timeliness of Appellant’s petition, because the PCRA time limitations
implicate our jurisdiction and may not be altered or disregarded in order to
address the merits of a petition. Commonwealth v. Bennett, 930 A.2d
1264, 1267 (Pa. 2007) (stating PCRA time limitations implicate our
jurisdiction and may not be altered or disregarded to address the merits of
the petition). Under the PCRA, any petition for post-conviction relief,
including a second or subsequent one, must be filed within one year of the
date the judgment of sentence becomes final, unless one of the following
exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies:
(b) Time for filing petition.--
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(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the
date the judgment becomes final, unless the petition
alleges and the petitioner proves that:
(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). Any petition attempting to invoke one of
these exceptions “shall be filed within 60 days of the date the claim could
have been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant’s judgment of sentence became final in November of
1997, making his instant petition filed in December of 2015 patently
untimely. Thus, for this Court to have jurisdiction to review the merits of
Appellant’s first two issues, he must prove that they meet an exception to
the timeliness requirements set forth in 42 Pa.C.S. § 9545(b). Appellant has
completely failed to satisfy this burden. In his principal brief to this Court,
Appellant does not mention, let alone plead or prove the applicability of, any
timeliness exception. In his reply brief, he simply contends that his first two
issues are not subsumed under the PCRA and, thus, the timeliness
requirement does not apply to those claims. For the reasons stated supra,
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we disagree. Because Appellant’s first two issues are cognizable PCRA
claims, and he has failed to plead or prove the applicability of any timeliness
exception, the PCRA court did not err in dismissing those two issues.
In Appellant’s third claim, he contends that the Department of
Corrections (DOC) lacks legal authority to detain him because it “does not
possess a lawful court order signed by the sentencing court authorizing any
lawful restraint.” Appellant’s Brief at 11. Appellant claims that the DOC’s
failure to have a written sentencing order in his case violates 42 Pa.C.S. §
9764(a)(8) (stating that “[u]pon commitment of an inmate to the custody of
the [DOC], the sheriff or transporting authority shall provide to the
institution’s records officer or duty officer, … (8) [a] copy of the sentencing
order and any detainers filed against the inmate which the county has
notice”).
Preliminarily, this Court has treated “a claim that a defendant’s
sentence is illegal due to the inability of the DOC to ‘produce a written
sentencing order related to [his] judgment of sentence’ [as] constitut[ing] a
claim legitimately sounding in habeas corpus.” Joseph v. Glunt, 96 A.3d
365, 368, 369 (Pa. Super. 2014). Accordingly, Appellant’s argument in this
regard is not subject to the PCRA’s one-year time limitation.
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Nevertheless, we ascertain no abuse of discretion by the PCRA court in
rejecting Appellant’s petition for writ of habeas corpus premised on this
argument.1 In Joseph, the appellant contended,
that the use of the word “shall” in section 9764 establishes a
mandatory requirement that the DOC must satisfy in order to
establish its jurisdiction to detain a prisoner. Consequently, [the
appellant] claims that the DOC's inability to produce a copy of
this sentencing report constitutes a fatal failure that should
result in his immediate release.
Joseph, 96 A.3d at 370.
In rejecting the appellant’s argument, the Joseph panel held that,
[t]he language and structure of section 9764, viewed in context,
make clear that the statute pertains not to the DOC's authority
to detain a duly-sentenced prisoner, but, rather, sets forth the
procedures and prerogatives associated with the transfer of an
inmate from county to state detention. None of the provisions of
section 9764 indicate an affirmative obligation on the part of the
DOC to maintain and produce the documents enumerated in
subsection 9764(a) upon the request of the incarcerated person.
Moreover, section 9764 neither expressly vests, nor
implies the vestiture, in a prisoner of any remedy for
deviation from the procedures prescribed within.
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1
We note that:
Under Pennsylvania statute, habeas corpus is a civil remedy
[that] lies solely for commitments under criminal process.
Habeas corpus is an extraordinary remedy and may only be
invoked when other remedies in the ordinary course have been
exhausted or are not available. Our standard of review of a trial
court's order denying a petition for [a] writ of habeas corpus is
limited to [an] abuse of discretion.
Joseph, 96 A.3d at 369 (internal citations and quotation marks omitted).
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Id. at 371 (footnote omitted; emphasis added). Thus, under Joseph,
Appellant is not entitled to any relief even if the DOC does not possess a
written copy of his sentencing order, as he claims.
We note that Appellant attempts to distinguish his case from Joseph.
However, his confusing argument is unconvincing. It seems that Appellant’s
position is that, unlike in Joseph, the certified record in his case does not
demonstrate that “the authorization for [his] incarceration” came from a
judge, but that his sentence was only “certified by a clerk….” Appellant’s
Brief at 13. The record belies this contention, as it demonstrates that on
October 26, 1994, Appellant was sentenced by The Honorable Jane Cutler
Greenspan of the Court of Common Pleas of Philadelphia County. Appellant
acknowledged this fact in his post-sentence motion filed shortly after his
sentence was imposed. See Appellant’s Post-Sentence Motion, 11/7/94, at
1 (“On October 26, 1994, Judge Greenspan resentenced [Appellant] to life
imprisonment as to murder and also imposed sentence as to other Bills on
which [Appellant] had been convicted.”). Accordingly, Appellant’s attempt to
distinguish his case from our decision in Joseph is unconvincing. Rather,
we conclude that the PCRA court did not abuse its discretion by relying on
Joseph to reject Appellant’s argument that he is entitled to relief based on
the ostensible violation of section 9764(a)(8).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/2017
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