Com. v. Sanders, K. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
KEVIN SANDERS :
: No. 925 EDA 2017
Appellant :
Appeal from the PCRA Order Entered February 22, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0222741-1988,
CP-51-CR-0226571-1988, CP-51-CR-0226611-1988,
CP-51-CR-0226651-1988
BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED APRIL 23, 2018
Appellant, Kevin Sanders, appeals pro se from the February 22, 2017
order entered in the Court of Common Pleas of Philadelphia County (“PCRA
court”), denying his petition for habeas corpus relief, which the PCRA court
treated as a serial, untimely Post Conviction Relief Act (“PCRA”) petition.1
Sanders seeks relief from the judgment of sentence of an aggregate term of
36 years to 72 years’ imprisonment, imposed on August 7, 1989, following his
conviction of five counts of robbery and five counts of criminal conspiracy. 2
On appeal, he contends the PCRA court erred in characterizing his habeas
corpus petition as a PCRA petition; all cases stating that the PCRA’s time
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1 42 Pa.C.S. §§ 9541-9546.
2 18 Pa.C.S.A. §§ 3701 and 903, respectively.
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restriction is jurisdictional do so in dicta; and the Remedies Clause of Article I
§ 11 of the Pennsylvania Constitution requires courts to afford him a remedy
for his claim that PCRA counsel was ineffective. We affirm.
The relevant procedural history underlying this appeal is as follows. On
January 11 and 19, 1989, Sanders was convicted by a jury of the above-stated
offenses. On August 7, 1989, he was sentenced to an aggregate term of 36
years to 72 years’ imprisonment. On April 26, 1995, this Court affirmed the
judgment of sentence on direct appeal and on November 8, 1995, the
Supreme Court of Pennsylvania denied allowance of appeal. Commonwealth
v. Sanders, 663 A.2d 253 (Pa.Super. 1995) (unpublished memorandum),
appeal denied, 668 A.2d 1129 (Pa. 1995).
Sanders filed his first pro se PCRA petition in October 1996. In that
petition he raised numerous claims of ineffective assistance of trial and
appellate counsel. Counsel was appointed and eventually filed a Finley letter
asserting that no meritorious claims existed.3 Sanders filed objections to the
Finley letter and on May 12, 1997, the PCRA court rejected counsel’s Finley
letter and ordered counsel to consult with Sanders. Counsel then submitted a
supplemental Finley letter which the court accepted. Sanders did not file
objections to the supplemental Finley letter. Subsequently the court denied
the PCRA petition and granted counsel leave to withdraw.
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3 Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1983) (en banc).
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Thereafter, Sanders filed several PCRA petitions, all of which were
denied. On November 13, 2015, he then filed his so-called “Habeas” petition
that gave rise to this appeal. In the petition, Sanders alleged that his first
PCRA counsel was ineffective for failing to amend and brief his pro se petition
to include a challenge to the legality of consecutive sentences imposed for
multiple counts of criminal conspiracy. Additionally, he alleged that trial and
appellate counsel failed to properly raise and preserve the above issues. He
further alleged that prior PCRA counsel was ineffective for failing to challenge
appellate counsel’s deficient performance in failing to raise on direct appeal,
meritorious issues that were properly preserved by trial counsel by way of
post-verdict motions.
The PCRA court treated the petition as a PCRA petition and dismissed it
as untimely on February 22, 2017. The PCRA court did not direct Sanders to
file a Concise Statement of Errors Complained of on Appeal pursuant to
Pa.R.A.P. 1925(b).
On appeal, Sanders raises the following issues:
I. Did the lower court err in treating appellant’s petition for
writ of habeas corpus ad subjiciendum as a petition
pursuant to the Post Conviction Relief Act?
II. Are prior appellate courts’ assertions, that the PCRA’s time
restriction is jurisdictional, dictum, not based on proper
statutory analysis and contrary to legislative intent?
III. Does the Remedies Clause of Article I § 11 of the
Pennsylvania Constitution mandate that courts of this
Commonwealth provide criminal defendants with a formal
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remedy for purposes of vindicating their rule-based right to
the effective assistance of PCRA counsel?
Appellant’s Brief at 4.
Sanders claims that his petition below was properly a petition for writ of
habeas corpus because it sought relief for his claim that PCRA counsel was
ineffective, and such claims are not covered under the PCRA. We disagree.
The writ of habeas corpus has for most purposes been subsumed in the PCRA.
Commonwealth v. Dickerson, 900 A.2d 407, 412 (Pa.Super. 2006). The
PCRA is the sole means by which a criminal defendant may seek collateral
relief, including for claims that counsel, including PCRA counsel, was
ineffective. 42 Pa.C.S.A. § 9542.4 As the Commonwealth correctly notes,
ineffective assistance of counsel claims, including challenging the
effectiveness of PCRA counsel, are cognizable under the PCRA. 42 Pa.C.S.A. §
9543(a)(2)(ii). Thus the PCRA court properly treated Sanders’ so-called
“Petition for Writ of Habeas Corpus Ad Subjiciendum” as a PCRA petition.
We next address Sanders’ claim regarding the PCRA’s time limitation for
the filing of a PCRA petition. All claims cognizable under the PCRA, including
ineffectiveness claims, must be filed within one year of the date the judgment
becomes final unless a statutory exception to the one-year time bar applies.
42 Pa.C.S.A. § 9545(b); Commonwealth v. Wharton, 886 A.2d 1120, 1127
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4 “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 . . .” 42 Pa.C.S.A. § 9542 (emphasis
added).
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(Pa. 2005). 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
direct review. 42 Pa.C.S.A. § 9545(b)(3).
The one-year deadline does not apply only if the petitioner pleads and
proves at least one of the three limited exceptions to the one-year time bar:
(i) [T]he failure to raise the claim previously was the result
of the 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) [T]he 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) [T]he 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.A. § 9545(b)(1)(i)-(iii).
Allegations of ineffective assistance of counsel do not overcome the
jurisdictional timeliness requirements of the PCRA. Wharton, 886 A.2d at
1127. A petition invoking an exception must be filed within 60 days of the date
the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2).
Sanders fails to allege any of the exceptions apply here and instead
claims that statements in prior cases that the PCRA’s time bar is jurisdictional
are dicta and that cases containing those statements were wrongly decided.
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This argument is meritless. The Supreme Court of Pennsylvania and this Court
have repeatedly held that the PCRA’s timeliness requirements are
jurisdictional. See Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa.
2003); Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999) (holding that
where petitioner fails to satisfy PCRA time requirements, court has no
jurisdiction to entertain the petition); Commonwealth v. Derrickson, 923
A.2d 466, 468 (Pa.Super. 2007) (holding that trial court lacked jurisdiction to
review post-conviction petition filed more than one year after judgment of
sentence became final). We are in no position to disagree.
Sanders’ final argument is that the PCRA’s time bar is unconstitutional
as applied to him because it deprives him of a remedy in violation of Article I
Section 11 of the Pennsylvania Constitution.5 To the contrary, a PCRA
petitioner has a remedy for PCRA counsel’s ineffectiveness. A petitioner may
raise PCRA counsel’s alleged ineffectiveness after receiving counsel’s
withdrawal letter or after receiving Pa.R.Crim.P. 907 notice of intent to
dismiss. Commonwealth v. Pitts, 981 A.2d 875, 880 n.4 (Pa. 2009). Failing
to raise an ineffectiveness of counsel claim prior to the appeal of the
underlying PCRA results in a waiver of the claim. Commonwealth v. Smith,
121 A.3d 1049, 1054 (Pa.Super. 2015). Even where a petitioner has waived
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5“All courts shall be open; and every man for an injury done him in his lands,
goods, person or reputation shall have remedy by due course of law, and right
and justice administered without sale, denial or delay. Suits may be brought
against the Commonwealth in such manner, in such courts and in such cases
as the Legislature may by law direct.” Pa. Const. Art. 1, § 11.
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the claim of ineffectiveness, if a subsequent timely PCRA is filed or the
petitioner pleads and proves that one of the exceptions to the time bar applies,
a claim of PCRA counsel’s ineffectiveness may be pursued. Commonwealth
v. Jette, 23 A.3d 1032, 1044 n.14 (Pa. 2011).
Here, Sanders was afforded the opportunity to claim ineffectiveness of
counsel when he received the supplemental Finley letter filed by counsel for
his first PCRA. Sanders did not respond by raising in the PCRA court any claim
that PCRA counsel was ineffective. Instead, he filed a Notice of Appeal. As
such, he waived the ineffectiveness of PCRA counsel. His waiver does not
exempt him from the PCRA’s time requirements, and it does not convert his
claim into a petition for writ of habeas corpus or constitute a violation of the
Remedies Clause. See Commonwealth v. Turner, 80 A.3d 754, 770-71 (Pa.
2013) (holding Remedies Clause did not require court to afford remedy to
petitioner who failed to utilize PCRA procedures to seek relief during time she
was statutorily eligible).
Sanders’ reliance on Commonwealth v. Holmes, 79 A.3d 562 (Pa.
2013) and Commonwealth v. Henkel, 90 A.3d 16 (Pa.Super. 2014) (en
banc), is misplaced. Neither of those cases involved untimely PCRA petitions
and therefore are irrelevant to our analysis. Sanders’ reliance on Martinez v.
Ryan, 566 U.S. 1 (2012), is likewise misplaced, as it relates exclusively to
federal habeas review procedures which are obviously not at issue here.
Therefore, we affirm the PCRA court’s decision to dismiss the petition as
untimely.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/23/18
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