Com. v. Greeley, A. ( 2017 )

J-S16018-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALBERT THEODORE GREELEY, III :
:
Appellant : No. 775 WDA 2016
Appeal from the Order Entered April 26, 2016
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000133-2009
BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY RANSOM, J.: FILED MAY 16, 2017
Appellant, Albert Theodore Greeley, III, appeals from the order
entered April 26, 2016, denying as untimely his serial petition for collateral
relief filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-
9546. We affirm.
A prior Superior Court panel has described the procedural history and
facts of this case as follows:
On November 18, 2010, the Fayette County Court of Common
Pleas sentenced Appellant to 18-36 months’ imprisonment at
docket number CP-26-CR-0001145-2010, with credit for time
served on June 30, 2009. On April 7, 2011, at docket number
CP-26-0001395-2010, the sentencing court imposed a sentence
of 6 to 12 months’ imprisonment. That court awarded credit for
time served from August 16, 2010 through November 18, 2010.
On October 6, 2011, a jury convicted Appellant of possession
of a controlled substance with the intent to deliver (“PWID”),
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*
Retired Senior Judge assigned to the Superior Court.
J-S16018-17
intentional possession of a controlled substance, and driving
without a license at docket CP-26-CR-0000133-2009. On
October 31, 2011, the trial court sentenced Appellant to 7 to 20
years’ incarceration for PWID and imposed no further penalty for
the remaining convictions. The trial court ordered that Appellant
receive credit for the time he spent in custody on October 30,
2008 and credit for time served from May 16, 2010 to August
16, 2010. The trial court ordered that the sentence run
concurrent to the sentences imposed by the Fayette County
Court of Common Pleas at docket numbers CP-26-CR-0001395-
2010 and CP-26-CR-0001145-2010, and by the Allegheny
County Court of Common Pleas at CP-02-CR-0004930-2009 and
CP-02-CR-0015573-2009.
Appellant did not file a post-sentence motion or a direct
appeal. On December 22, 2011, Appellant filed a pro se petition
pursuant to the [PCRA]. Appointed counsel filed a petition for
leave to appeal nunc pro tunc, which the trial court granted.
Appellant filed an appeal, and this court affirmed the judgment
of sentence on February 21, 2013. Commonwealth v.
Greeley, No. 410 WDA 2012 (Pa.Super. filed Feb. 21, 2013)
(unpublished memorandum).
On April 23, 2013, Appellant filed a pro se PCRA petition,
which he amended on May 29, 2013. Counsel filed an amended
petition on October 16, 2013. The trial court conducted a
hearing. On April 24, 2014, it denied the petition. On May 21,
2014, Appellant filed a notice of appeal and this Court affirmed
on February 11, 2015. Commonwealth v. Greeley, No. 835
WDA 2014 (Pa. Super. filed Feb 11, 2015) (unpublished
memorandum)[, appeal denied 118 A.3d 1108 (Pa. 2015)]. On
March 12, 2015, Appellant filed a petition for allowance of appeal
to the Supreme Court of Pennsylvania. [His petition for allocator
was denied on July 15, 2015].
On August 7, 2014, while his appeal of the order denying his
first PCRA petition was pending in this Court, Appellant filed a
motion seeking clarification of sentence. On August 21, 2014,
the trial court denied this motion, finding clarification was not
needed and it could not award credit for time spent while serving
another sentence. Appellant filed a notice of appeal on
September 22, 2014.
Commonwealth v. Greeley, 133 A.3d 67, 1544 WDA 2014, **1-3 (Pa.
Super. filed Sept. 9, 2015) (unpublished memorandum), allocator denied
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Feb. 8, 2016. The Superior Court panel did not review the merits of
Appellant’s petition. Because his first PCRA petition was pending in this
Court, the trial court lacked jurisdiction to address Appellant’s motion for
clarification. Id. at *6 (citing Pa.R.A.P. 1701(a) (trial court may no longer
proceed further in a matter once appeal is taken)).
Appellant pro se filed a petition for writ of habeas corpus seeking
clarification of his sentence on April 22, 2016.1 The court denied Appellant’s
petition as untimely on April 26, 2016. Thereafter, Appellant timely filed a
notice of appeal on May 24, 2016. Appellant timely filed a court-ordered
1925(b) statement on July 5, 2016. The court issued a responsive opinion.
On appeal, Appellant raises the following issues:
1. Was a writ of habeas ad subjiciendum the proper motion in
light of the facts of the instant case?
2. Did the [PCRA] court improperly fail to clarify its
sentencing order pursuant to 42 Pa.C.S. § 9760?
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1
The record reflects that Appellant pro se filed a petition for writ of habeas
corpus seeking clarification of his sentence in December 2015. Appellant’s
December 2015 petition was improperly filed because he still had a petition
pending on appeal and, further, because Appellant was still represented by
counsel. See Commonwealth v. Jette, 23 A.3d 1032, 1036 (Pa. 2011)
(discussing this Court’s long-standing policy that precludes hybrid
representation) (citing Commonwealth v. Reid, 642 A.2d 453, 462 (Pa.
1994) (noting that there is no constitutional right to hybrid representation
and pro se briefs filed by appellants in criminal cases while represented will
not be considered)). The record does not reveal a disposition for this
petition. Subsequently, counsel was permitted to withdraw in April 2016.
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Appellant's Br. at 1.2
Instantly, we note that Appellant’s claim implicates the legality of his
sentence.3 The PCRA provides the sole action by which persons serving
illegal sentences may obtain collateral relief and encompasses all other
common law remedies, including habeas corpus. 42 Pa.C.S. § 9542;
Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013). Thus,
even though Appellant purports to seek habeas corpus relief, we address his
petition within the PCRA framework.
Our 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. See Commonwealth v.
Ragan, 923 A.2d 1169, 1170 (Pa. 2007).
We begin by addressing the timeliness of Appellant’s petition, as the
PCRA time limitations implicate our jurisdiction and may not be altered or
disregarded in order to address the merits of his claims. See
Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the
PCRA, any petition for relief, including second and subsequent petitions,
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2
Appellant’s pro se brief lacks proper pagination. See Pa.R.A.P. 2173.
3
In his petition, Appellant contends that the court erred in failing to credit
his sentence for time served for a period of time before he was sentenced in
this case. The sentencing court ordered this sentence to run concurrently
with those he was already serving. Relying on 42 Pa.C.S. § 9737, Appellant
claims that he should be credited with time served on other sentences
before this one was imposed.
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must be filed within one year of the date on which the judgment of sentence
becomes final. Id. There are three exceptions:
(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 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 these
exceptions “shall be filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2).
Appellant’s petition is patently untimely.4 In order to reach the merits
of his issues, he must plead and prove one of the exceptions to the time bar.
Commonwealth v. Jackson, 30 A.3d 516, 522–23 (Pa. Super. 2011).
Appellant has failed to do so. Accordingly, the PCRA court properly
dismissed Appellant’s petition as untimely.
Order affirmed.
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4
Appellant’s judgment of sentence became final on November 30, 2011, at
the expiration of the thirty-day period for seeking direct review. See 42
Pa.C.S. § 9545(b)(3). The instant PCRA petition was filed on April 22, 2016,
more than three years after the judgment became final.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/2017
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