Com. v. Vendetti, C. ( 2015 )

J-S44026-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CURRY VENDETTI
Appellant No. 9 WDA 2015
Appeal from the PCRA Order entered November 21, 2014
In the Court of Common Pleas of Erie County
Criminal Division at No: CP-25-CR-0000037-1990
BEFORE: LAZARUS, STABILE, and JENKINS, JJ.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 15, 2015
Appellant, Curry Vendetti, appeals from the November 21, 2014 order
of the Court of Common Pleas of Erie County (PCRA court) denying him relief
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Upon
review, we affirm.
The PCRA court summarized the relevant background as follows:
On May 22, 1990, [Appellant] was found guilty by a jury of first-
degree murder and possessing instruments of crime. [Appellant]
was sentenced on June 29, 1990 to a term of life imprisonment.
[Appellant] filed a direct appeal and on January 21, 1992, the
Superior Court affirmed his judgment of sentence. On February
13, 1992, [Appellant] filed a Petition for Allowance of Appeal
which was denied by the Pennsylvania Supreme Court on June 9,
1992.
On October 14, 1992, [Appellant] filed his first pro se PCRA
petition. After appointment of PCRA counsel, the PCRA court
denied the PCRA petition and granted PCRA counsel’s request for
withdrawal. [Appellant] filed an appeal which was dismissed by
the Superior Court on July 29, 1993.
J-S44026-15
On or about August 24, 1994, [Appellant] filed a second pro se
PCRA petition which was ultimately denied on January 5, 1995.
[Appellant] appealed and on October 30, 1995, the Superior
Court affirmed the PCRA Court’s denial of [Appellant’s] second
PCRA petition. [Appellant] subsequently filed a Petition for
Allowance of Appeal which was denied by the Supreme Court on
March 1, 1996.
Notice of Intent to Dismiss without a Hearing Pursuant to Pa.R.Crim.P. 907,
10/14/14, at 1-2. Appellant then filed a petition for a writ of habeas corpus
on September 23, 2014. The court treated Appellant’s habeas petition as a
PCRA petition and dismissed the petition as untimely on November 21, 2014.
On appeal, Appellant raises two claims. First, Appellant claims that
the PCRA court erred in treating his writ of habeas corpus as a PCRA petition
because he is unable to get post-conviction relief under the PCRA due to its
time-bar limitation. Appellant’s Brief, 3-6. Second, Appellant claims that
the PCRA is unconstitutional because it unlawfully incorporates habeas
corpus and denies him his right to an appeal. Appellant’s Brief, 9-10. We
agree with the PCRA court and conclude that Appellant is not entitled to
relief on his claims.
“Our standard of review regarding a PCRA court’s order is whether the
determination of the PCRA court is supported by the evidence of record and
is free of legal error. The PCRA court’s findings will not be disturbed unless
there is no support for the findings in the certified record.”
Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011)
(quotation marks and citations omitted).
-2-
J-S44026-15
Regarding Appellant’s first claim, the PCRA court did not err in treating
Appellant’s habeas petition as a PCRA petition.
It is well-settled that the PCRA is intended to be the sole means
of achieving post-conviction relief. 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)
(quotation marks, citations, and footnote omitted). Appellant claims in his
petition that his sentence was “unlawful” and “stems from the trial court’s
failure to properly instruct the factfinder as to the charge of involuntary
manslaughter.” Appellant’s Brief at 1, n.1. We construe Appellant’s claim as
raising ineffective assistance of trial counsel for failing to request a charge of
involuntary manslaughter. This matter is both within the scope of and could
be remedied by the PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(ii); see also
Commonwealth v. Gamboa-Taylor, 753 A.2d 780, 785 (Pa. 2000) (“This
Court has stated previously that a claim for ineffective assistance of counsel
does not save an otherwise untimely petition for review on the merits.”).
Therefore, Appellant’s filing is properly treated as a PCRA petition. See
Commonwealth v. Deaner, 779 A.2d 578, 580 (Pa. Super. 2001) (noting a
collateral petition that raises an issue that the PCRA statute could remedy is
to be considered a PCRA petition).
-3-
J-S44026-15
Because Appellant’s filing is a PCRA petition, we must first determine
whether Appellant’s petition was timely filed before we can address the
merits of his issues.
It is well settled that [a]ny and all PCRA petitions must be filed
within one year of the date on which the petitioner’s judgment
became final, unless one of three statutory exceptions applies.
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. 42 Pa.C.S.A.
§ 9545(b)(3).
Garcia, 23 A.3d at 1061-62 (footnote and quotation marks omitted).
Appellant’s judgment of sentence became final on September 9, 1992
when his time for seeking certiorari from the United States Supreme Court
expired. Appellant had one year from this day to file a timely PCRA petition.
Appellant filed the instant PCRA petition, his third, approximately 21 years
after his time to file for collateral relief had expired. Appellant does not
allege any facts to establish any of the three timeliness exceptions set forth
in 42 Pa.C.S.A. § 9545(b). Accordingly, Appellant’s petition is untimely.
Given our conclusion that Appellant’s PCRA petition is untimely, we do
not need to address Appellant’s second claim. “The PCRA’s timeliness
requirements are jurisdictional in nature and must be strictly construed;
courts may not address the merits of the issues raised in a petition if it is not
timely filed.” Commonwealth v. Abu-Jamal, 941 A.2d 1263, 1267-68
(Pa. 2008).
Order Affirmed.
-4-
J-S44026-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2015
-5-