Com. v. Keys, J. ( 2020 )

J-S33042-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN A. KEYS :
:
Appellant : No. 3108 EDA 2019
Appeal from the PCRA Order Entered October 8, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1000371-2005
BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 14, 2020
Appellant, John A. Keys, appeals from the order entered in the Court of
Common Pleas of Philadelphia County dismissing his petition for habeas corpus
relief as an untimely serial petition filed pursuant to the Post Conviction Relief
Act (“PCRA”), 42 Pa.C.S.A. § 9541-9546, without a hearing. We affirm.
On April 27, 2007, a jury found Appellant guilty of robbery and
possessing an instrument of crime. Pursuant to the “third strike” mandatory
minimum provision of 42 Pa.C.S. § 9714,1 the trial court sentenced him to 25
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 The statute reads:
Where the person had at the time of the commission of the current
offense previously been convicted of two or more crimes of
violence arising from separate criminal transactions, the person
J-S33042-20
to 50 years’ incarceration for the robbery conviction and a concurrent term of
probation for the remaining charge. This Court affirmed judgment of sentence
on April 22, 2009, see Commonwealth v. Keys, 974 A.2d 1185 (Pa. Super.
2009) (unpublished memorandum), and the Supreme Court of Pennsylvania
denied Appellant’s petition for allowance of appeal on October 20, 2009.
Appellant filed his first PCRA petition on January 22, 2010, and
appointed counsel filed a petition to withdraw pursuant to Commonwealth
v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988) (en banc). On June 28, 2011, the PCRA court
dismissed Appellant’s petition and permitted counsel to withdraw. On January
24, 2012, this Court dismissed Appellant’s pro se appeal for his failure to file
a brief.
On April 3, 2014, Appellant filed a “habeas corpus” petition, claiming the
trial court erred in calculating his credit for time served. The court treated
this filing as his second PCRA petition. Specifically, the PCRA court determined
Appellant’s claim was cognizable under the PCRA but unreviewable on the
merits because the petition was untimely and Appellant failed to establish any
time-bar exception. Appellant also raised a claim for habeas relief, based on
his assertion that the Department of Corrections lacked the legal authority for
____________________________________________
shall be sentenced to a minimum sentence of at least 25 years of
total confinement ....
42 Pa.C.S.A. § 9714(a)(2).
-2-
J-S33042-20
his continued detention due to the lack of a written sentencing order. This
claim, the PCRA court determined, was meritless because the original
sentencing order is in the certified record and the sentence was accurately
reflected on the docket by the Clerk of the Court of Common Pleas. On appeal,
we affirmed on the basis of the PCRA court’s opinion. Commonwealth v.
Keys, No. 3587 EDA 2016, 2017 WL 6015781, at *1 (Pa. Super. Ct. Dec. 5,
2017).
Appellant thereafter filed pro se the present petition, on January 5,
2018, as a habeas petition, and filed an amended petition on February 20,
2018. Therein, he raised two claims, one charging trial counsel with rendering
ineffective assistance of counsel and the other asserting that the Three Strikes
legislation pursuant to 42 Pa.C.S.A. § 9714, under which he was sentenced,
was unconstitutionally vague. The lower court deemed Appellant’s petition as
his third PCRA petition and issued its notice of intent to dismiss pursuant to
Pa.R.Crim.P. 907. Appellant filed a response to the court’s notice, but the
court dismissed the petition as untimely on October 8, 2019. This timely
appeal followed.
Appellant raises two issues for our consideration:
1. [Did] the trial court abuse[] its discretion in dismissing
Appellant’s Petition for Habeas Corpus Relief since his
confinement is based on a PCRA proceeding that denied Due
Process?
2. [Did] the trial court abuse[] its discretion in dismissing
Appellant’s Petition for Habeas Corpus Relief since his
-3-
J-S33042-20
confinement is based on Three Strike legislation pursuant to 42
Pa.C.S.A. Section 9714 that is unconstitutionally vague?
Appellant’s brief, at 3.
This Court's standard of review regarding an order denying a petition
under the PCRA is 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 first address the timeliness of
Appellant's habeas petition, which the PCRA court deemed a PCRA petition,
because the PCRA time limitations implicate our jurisdiction such that we may
not alter or disregard them in order to address the merits of a petition.
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007).
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.—
(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
-4-
J-S33042-20
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).
Commonwealth v. Rouse, 191 A.3d 1, 3–4 (Pa. Super. 2018).
Here, Appellant’s judgments of sentence became final on Monday,
December 21, 2009, sixty days after The Supreme Court of Pennsylvania
denied his petition for allowance of appeal. 42 Pa.C.S. § 9545(b)(3).
Appellant, therefore, had until December 21, 2010 to file the present petition
in a timely manner. As it is, however, Appellant did not file the present
petition until January 5, 2018, making the petition over seven years untimely.
Furthermore, Appellant fails to allege, let alone prove, any exception to
the PCRA time bar. He argues, however, that the PCRA court improperly
construed his writ of habeas corpus as a PCRA petition.
It is well-settled that the PCRA remains “the sole means of obtaining
collateral relief” if the underlying claim raised in a habeas petition is one that
could potentially be remedied under the PCRA. 42 Pa.C.S. § 9542;
Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013). Reviewing
Appellant’s two claims, we observe that his allegation of ineffective assistance
of trial counsel was clearly cognizable under the PCRA, such that its
-5-
J-S33042-20
presentation within a writ of habeas corpus did not enable it to escape the
timeliness provisions of the PCRA. See Commonwealth ex rel. Dadario v.
Goldberg, 773 A.2d 126, 130 (Pa. 2001) (holding all constitutionally-
cognizable claims of ineffective assistance of counsel are reviewable under the
PCRA). Pursuant to Dadario, it was appropriate for the PCRA court to deny
relief on Appellant's claim of trial counsel’s ineffectiveness as if the claim were
presented in an untimely third PCRA petition.
In Appellant’s second claim, he posits that the PCRA court erroneously
reviewed his void-for-vagueness challenge to the Three Strikes law at Section
9714(a)(2) as a claim cognizable under the PCRA. Specifically, the substance
of Appellant’s void-for-vagueness argument states that, to the extent the
statute permits a judge to impose a sentence of life without parole upon
determining that a 25-year sentence is “insufficient to protect the public
safety[,]” the statute fails to define “protect the public safety” sufficiently to
notify an ordinary individual as to what is meant by “public safety.”
Appellant’s brief, at 12.
In support of his claim, Appellant relies exclusively on Rouse, in which
this Court held that a void-for-vagueness claim raising a sentencing issue that
presents a legal question (for example, challenging the legislature’s ostensible
failure to provide adequate notice of the penalty for second-degree murder)
rather than an issue presenting a question of whether the sentence is illegal
under the purview of Section 9543(a)(2)(vii) of the PCRA is not cognizable
under the PCRA. Id. at *6. However, even assuming arguendo that Appellant
-6-
J-S33042-20
correctly argues his void-for-vagueness sentencing claim comes under the
Rouse decision, he fails to acknowledge the second part of Rouse, which
observes that the remedy of habeas corpus relief is available only after
confirming other remedies have been exhausted or are nonexistent. Id.
In Rouse, we determined that even though the appellant’s void-for-
vagueness claim was not contemplated by the PCRA and was, instead, of the
type eligible for habeas relief, it nevertheless was waived because the
appellant could have raised it at his sentencing hearing or in a post-sentence
motion but failed to do so. In the case sub judice, the same fate befalls
Appellant’s claim, as he, too, failed to exhaust the available remedies of a
sentencing hearing objection or a post-sentence motion. Accordingly, waiver
applies, and we affirm the PCRA court’s order denying relief on this claim,
albeit on a different basis. See Commonwealth v. Williams, 125 A.3d 425,
433 n.8 (Pa. Super. 2015).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/20
-7-