Com. v. Strum, A. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ANDRE STRUM,
Appellant No. 1375 EDA 2014
Appeal from the PCRA Order of April 9, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0504651-1997
BEFORE: DONOHUE, OLSON AND MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 01, 2015
Appellant, Andre Strum, appeals pro se from the order entered on
April 9, 2014, dismissing his third petition filed under the Post-Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The PCRA court has ably summarized the relevant facts and procedural
posture of this case:
[Appellant] was found guilty after a jury trial of first degree
murder, robbery, possessing an instrument of crime[,] and
criminal conspiracy. . . . On July 7, 1998, [Appellant] was
sentenced to serve a life sentence for the murder
conviction. Concurrent terms of incarceration of five to ten
[years’] and four to eight [years’] were imposed on the
robbery and conspiracy convictions[,] respectively.
[Appellant] [] filed a direct appeal [to the Superior Court]
and[,] on November 29, 1999, the Superior Court affirmed
[Appellant’s] judgment of sentence. [Commonwealth v.
Strum, 750 A.2d 377 (Pa. Super. 1999) (unpublished
memorandum) at 1-7]. Appellant did not thereafter file a
petition for allowance of appeal with the Pennsylvania
Supreme Court].
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[Appellant filed his first PCRA petition] on December 15,
2000, and counsel was appointed to represent him. After
an amended petition was filed on [Appellant’s] behalf, the
PCRA court dismissed the petition on July 10, 2003. The
Superior Court affirmed the PCRA court’s dismissal on
February 17, 2005, and the [Pennsylvania] Supreme Court
denied allocatur on September 14, 2005. . . .
[Commonwealth v. Strum, 873 A.2d 772 (Pa. Super.
2005) (unpublished memorandum) at 1-9, appeal denied,
882 A.2d 1006 (Pa. 2005)].
[Appellant filed his second PCRA petition on September 29,
2009. The PCRA court dismissed this petition on November
4, 2013; Appellant did not file a notice of appeal from the
PCRA court’s order].
PCRA Court Opinion, 8/13/14, at 1-2 (internal footnotes omitted).
On December 2, 2013, Appellant filed the current, pro se PCRA petition
– which Appellant titled “writ of habeas corpus.” Within this petition,
Appellant claimed that he is serving an illegal sentence, as the original
sentencing order “contains no statutory authorization for the sentence
imposed.” Appellant’s Third PCRA Petition, 12/2/13, at 4.
On January 7, 2014, the PCRA court provided Appellant with notice
that, in 20 days, it intended to dismiss Appellant’s PCRA petition without a
hearing, as the petition was untimely. PCRA Court Order, 1/7/14, at 1;
Pa.R.Crim.P. 907(1). On April 9, 2014, the PCRA court entered an order
dismissing Appellant’s PCRA petition. PCRA Court Order, 4/9/14, at 1.
Appellant filed a timely notice of appeal and Appellant now raises the
following claim:
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Whether the [PCRA] court abused its discretion in
dismissing Appellant’s petition for writ of habeas corpus ad
subjiciendum?
Appellant’s Brief at 3 (some internal capitalization omitted).
On appeal, Appellant claims that the PCRA court erred in construing
his self-styled “petition for a writ of habeas corpus” as a PCRA petition.
According to Appellant, the PCRA does not encompass his illegal sentencing
claim and, therefore, the timeliness requirements of the PCRA do not apply
to his petition. Appellant’s contention fails and the PCRA court properly
dismissed Appellant’s patently untimely, serial PCRA petition.
We “review an order granting or denying PCRA relief to determine
whether the PCRA court’s decision is supported by evidence of record and
whether its decision is free from legal error.” Commonwealth v. Liebel,
825 A.2d 630, 632 (Pa. 2003).
The PCRA “provides for an action by which persons convicted of crimes
they did not commit and persons serving illegal sentences may obtain
collateral relief.” 42 Pa.C.S.A. § 9542. As the statute declares, the PCRA “is
the sole means of obtaining collateral relief and encompasses all other
common law and statutory remedies . . . including habeas corpus and coram
nobis.” Id.; see also Commonwealth v. Ahlborn, 699 A.2d 718, 721 (Pa.
1997). Thus, under the plain terms of the PCRA, “if the underlying
substantive claim is one that could potentially be remedied under the PCRA,
that claim is exclusive to the PCRA.” Commonwealth v. Pagan, 864 A.2d
1231, 1233 (Pa. Super. 2004) (emphasis in original).
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Within his “petition for a writ of habeas corpus” Appellant claims that
he is entitled to relief because his sentence is illegal. However, the PCRA
undoubtedly encompasses Appellant’s claim, as the claim concerns “matters
affecting [Appellant’s] conviction [or] sentence.” Commonwealth v.
Judge, 916 A.2d 511, 520 (Pa. 2007), quoting Coady v. Vaughn, 770 A.2d
287, 293 (Pa. 2001) (Castille, J., concurring); see also 42 Pa.C.S.A. § 9542
(“[the PCRA] provides for an action by which persons convicted of crimes
they did not commit and persons serving illegal sentences may obtain
collateral relief”).
Appellant’s claim thus falls under the rubric of the PCRA and, since the
PCRA encompasses Appellant’s claim, Appellant “can only find relief under
the PCRA’s strictures.” Pagan, 864 A.2d at 1233; see also
Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011)
(“[petitioner’s legality of sentence] claim is cognizable under the PCRA . . . .
[Thus, petitioner’s] ‘motion to correct illegal sentence’ is a PCRA petition and
cannot be considered under any other common law remedy”).
The PCRA contains a jurisdictional time-bar, which is subject to limited
statutory exceptions. This time-bar demands that “any PCRA petition,
including a second or subsequent petition, [] be filed within one year of the
date that the petitioner’s judgment of sentence becomes final, unless [the]
petitioner pleads [and] proves that one of the [three] exceptions to the
timeliness requirement . . . is applicable.” Commonwealth v. McKeever,
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947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b). Further,
since the time-bar implicates the subject matter jurisdiction of our courts,
we are required to first determine the timeliness of a petition before we are
able to consider any of the underlying claims. Commonwealth v. Yarris,
731 A.2d 581, 586 (Pa. 1999). Our Supreme Court has explained:
the PCRA timeliness requirements are jurisdictional in
nature and, accordingly, a PCRA court is precluded from
considering untimely PCRA petitions. See, e.g.,
Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)
(stating that “given the fact that the PCRA's timeliness
requirements are mandatory and jurisdictional in nature, no
court may properly disregard or alter them in order to reach
the merits of the claims raised in a PCRA petition that is
filed in an untimely manner”); Commonwealth v. Fahy,
737 A.2d 214, 220 (Pa. 1999) (holding that where a
petitioner fails to satisfy the PCRA time requirements, this
Court has no jurisdiction to entertain the petition). [The
Pennsylvania Supreme Court has] also held that even where
the PCRA court does not address the applicability of the
PCRA timing mandate, th[e court would] consider the issue
sua sponte, as it is a threshold question implicating our
subject matter jurisdiction and ability to grant the requested
relief.
Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).
In the present case, this Court affirmed Appellant’s judgment of
sentence on November 29, 1999 and Appellant did not thereafter file a
petition for allowance of appeal with our Supreme Court. Thus, Appellant’s
judgment of sentence became final for purposes of the PCRA on December
29, 1999, when the period for seeking review in our Supreme Court expired.
42 Pa.C.S.A. § 9545(b)(3). As Appellant did not file his current petition until
December 2, 2013, the current petition is manifestly untimely and the
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burden thus fell upon Appellant to plead and prove that one of the
enumerated exceptions to the one-year time-bar applied to his case. See
42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284,
1286 (Pa. Super. 2008) (to properly invoke a statutory exception to the one-
year time-bar, the PCRA demands that the petitioner properly plead and
prove all required elements of the relied-upon exception).
Here, Appellant did not attempt to plead a valid statutory exception to
the PCRA’s one-year time-bar. Thus, since Appellant’s PCRA petition is
manifestly untimely and Appellant did not plead any of the statutory
exceptions to the one-year time-bar, our “courts are without jurisdiction to
offer [Appellant] any form of relief.” Commonwealth v. Jackson, 30 A.3d
516, 523 (Pa. Super. 2011). We, therefore, affirm the PCRA court’s April 9,
2014 order, dismissing Appellant’s PCRA petition without a hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/1/2015
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