Com. v. Ali, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ANWAR SHARIF ALI ALI
Appellant No. 3508 EDA 2014
Appeal from the PCRA Order November 4, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0003588-2004
BEFORE: PANELLA, J., MUNDY, J., JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 08, 2015
Appellant, Anwar Sharif Ali Ali, proceeding pro se, seeks review of the
denial of his petition for a writ of habeas corpus, and avers that the PCRA
court erred in dismissing his petition as an untimely-filed Post Conviction
Relief Act (“PCRA”) petition.1 We affirm.
On October 18, 2005, Appellant entered into a negotiated plea of
guilty to one count each of armed robbery and conspiracy to commit armed
robbery. Pursuant to the agreement, the trial court imposed an aggregate
sentence of five to ten years’ incarceration and a consecutive term of eight
years’ probation. Appellant did not file a direct appeal. His judgment of
sentence thus became final on November 17, 2005. See Pa.R.A.P. 903(a).
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1
42 Pa.C.A. §§ 9541-9546.
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On October 16, 2006, Appellant filed a timely pro se PCRA petition.
Counsel was appointed, but filed a petition for leave to withdraw and a no-
merit letter. On July 2, 2007, the PCRA court denied relief without a hearing
and granted counsel’s motion. On July 10, 2008, this Court affirmed. It
does not appear that Appellant sought allowance of appeal from the
Supreme Court. However, the Supreme Court later denied relief on various
other pro se petitions, among them a petition for a writ of habeas corpus.
See Commonwealth v. Ali, No. 226 MM 2010 (Pa. filed April 15, 2011).
Appellant also filed a petition for writ of habeas corpus in the Federal court,
which was dismissed.
On July 18, 2014, Appellant filed a pro se petition for a writ of habeas
corpus in the civil division of the court of common pleas and a petition to
proceed in forma pauperis. The court denied his request to proceed in forma
pauperis based on a determination that the underlying action was frivolous.
See Pa.R.C.P. 240(j)(1). The court then denied the habeas corpus petition.
While that appeal was pending, Appellant mailed a copy of his civil
petition for habeas corpus relief directly to the chambers of the Honorable
Joseph A. Smyth, Jr. Judge Smyth sent it to the clerk of courts for filing.
Thereafter, the court issued a notice of intent to dismiss the petition without
a hearing. Appellant filed a response “arguing, among other things, that the
civil nature of the remedy of habeas corpus somehow vitiated the lower
court’s treatment of Ali’s petition as one governed by the PCRA.” Order,
entered 11/4/14, at 4. The court dismissed Appellant’s second PCRA petition
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as untimely. Appellant timely appealed to this Court, raising the following
issue (stated verbatim):
Did the lower court abused it’s discretion and/or error at law,
when it subsumed Appellant’s Petition for Writ of Habeas Corpus
as a PCRA petition, and by falling to apply the Pro se liberal
construe standard, when Appellant’s essential core claim was:
“The continued vitality of Appellant’s sentence is illegal as it is a
null and void judgment, unconstitutional and fundamentally
unfair and unjust and therefore cruel and unusual punishment.
Appellant’s restraint is unlawful,” which fell outside the sphere of
the P.C.R.A., because the only sentence(ing) issue that is
subject to P.C.R.A. review is whether the sentence imposed is
greater than the lawful maximum?
Appellant’s brief at 12-13.
The PCRA states that it “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. This language “demonstrates quite clearly
that the General Assembly intended that claims that could be brought under
the PCRA must be brought under that Act.” Commonwealth v. Hall, 771
A.2d 1232, 1235 (Pa. 2001) (emphasis in original). See also
Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa. 1998) (“The writ [of
habeas corpus ] continues to exist only in cases in which there is no remedy
under the PCRA.”); Commonwealth v. Descardes, 101 A.3d 105, 108 (Pa.
Super. 2014) (en banc).
In the instant case, Appellant asserts that his sentence is “illegal as it
is a null and void judgment, unconstitutional and fundamentally unfair and
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unjust[.]” Appellant’s Brief at 13. There is no doubt that this explicit
challenge is to the legality of the sentence. It is thus cognizable under the
PCRA. See 42 Pa.C.S.A. §9543(a)(2)(vii); Commonwealth v. Voss, 838
A.2d 795, 799 (Pa. Super. 2003). Because the PCRA is the sole means of
obtaining relief when the legality of sentence is challenged, the court did not
err in treating Appellant’s petition as a second PCRA petition.
“On appeal from the denial of PCRA relief, our standard and scope of
review is limited to determining whether the PCRA court’s findings are
supported by the record and without legal error.” Commonwealth v.
Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted), cert. denied,
Edmiston v. Pennsylvania, 134 S. Ct. 639 (2013).
Before we address the merits of a PCRA petition, we must first
consider the petition’s timeliness. “The PCRA timeliness requirements are
jurisdictional in nature and, accordingly, a court cannot hear untimely PCRA
petitions.” Commonwealth v. Flanagan, 854 A.2d 489, 509 (Pa. 2004)
(citation omitted). A petitioner must file a PCRA petition within one year of
the date that his judgment becomes final. See 42 Pa.C.S.A. § 9545(b)(1). 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
review. See 42 Pa.C.S.A. § 9545(b)(3).
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Here, Appellant’s sentence became final on November 17, 2005. Thus,
this second PCRA petition—filed nearly nine years later on August 18, 2014—
is patently untimely. Appellant has not asserted that his petition falls within
any of the timeliness exceptions provided in the PCRA. See 42 Pa.C.S.A. §
9545(b)(1)(i)-(iii). Accordingly, neither the lower court nor this Court has
jurisdiction to consider Appellant’s request for relief. See 42 Pa.C.S. §
9545(b)(1).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/8/2015
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