Com. v. Highley, M. ( 2019 )

J-S29025-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MAURICE HIGHLEY :
:
Appellant : No. 3185 EDA 2018
Appeal from the PCRA Order Entered October 3, 2018
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0003693-2014
BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED JULY 09, 2019
Maurice Highley appeals, pro se, from the order, entered in the Court of
Common Pleas of Lehigh County, dismissing his petition for relief under the
Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 (“PCRA”), and his
petition for a writ of habeas corpus. After careful review, we affirm.
On December 23, 2014, Highley pleaded guilty to two counts of
possession of a controlled substance with intent to deliver, for which the court
imposed an aggregate sentence of one to four years’ incarceration on February
9, 2015. He did not file a direct appeal. Though there are no docket entries
between May 18, 2015, when the court amended Highley’s sentence to make
him eligible for boot camp, and May 30, 2018, when the PCRA court appointed
counsel to pursue the instant PCRA petition, it is clear that Highley was
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released on parole, violated his parole, and returned to confinement.1
Following his return to confinement, the Board of Probation and Parole (“the
Board”) determined Highley would not receive credit for his time spent at
liberty, owing to Highley’s unresolved drug issues and the similarity between
offences committed while at large and the conviction at issue.2 See PCRA
Petition, 5/30/18, Exhibit A (reproducing notice of the Board’s decision).
Highley filed the instant PCRA petition on May 20, 2018, for the purpose
of challenging the Board’s decision not to grant him credit for time spent at
liberty, resulting in his release date being pushed back from January 24, 2019
to August 6, 2020. See id. at 5 (“I’m filing [] to receive my time credit [from]
the Parole Board spent at liberty on parole”) (capitalization adjusted); see
also Brief of Appellant, Appendix A (attaching to brief Highley’s request for
administrative review addressed to Board). On May 30, 2018, the court
appointed Sean Poll, Esquire, who filed a “no-merit” letter and petitioned to
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1 All involved—including the PCRA court, the Commonwealth, and Highley
himself—failed to fully develop the factual basis underpinning the instant case.
The clearest picture of what happened below can be gleaned from Highley’s
initial, handwritten PCRA petition which states, “I was re-arrested on 1-6-2017
while on parole for criminal case no CP 0003693 [the instant case] for CR-
266-2017 out of Carbon County Pa. I seen [sic] my parole agent upon reentry
on 6-21-17. I receive[d] my Parole Board decision on Oct[.] 16[,] 2017
denying my time at liberty.” PCRA Petition, 5/30/18, at 10 (capitalization
adjusted).
2 Highley’s copy of the Board’s decision, reproduced as an appendix to his
handwritten PCRA petition, states he received a sentence of “9 months for the
offenses of possession of a controlled substance and use/possession of drug
paraphernalia.” PCRA Petition, 5/30/18, Exhibit A (capitalization adjusted).
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withdraw as counsel on August 28, 2018, 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 September 4, 2018, the PCRA court
issued notice of its intent to dismiss Highley’s petition without a hearing
pursuant to Pa.R.Crim.P. 907. In response, Highley filed a petition for a writ
of habeas corpus. On October 3, 2018, the PCRA court dismissed both
petitions and granted Attorney Poll’s motion to withdraw. Highley’s pro se
appeal followed.
Highley argues the PCRA court erred in dismissing both his petition for
PCRA relief and his petition for a writ of habeas corpus. See Brief of Appellant,
at 8. This Court is without jurisdiction to consider either petition.
A PCRA petition, including a second or subsequent petition, must be filed
within one year of the date the underlying judgment of sentence becomes
final. See 42 Pa.C.S.A. § 9545(b)(1); see also Commonwealth v. Bretz,
830 A.2d 1273, 1275 (Pa. Super. 2003). A judgment is deemed 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.” 42 Pa.C.S.A. § 9545(b)(3); see also
Commonwealth v. Pollard, 911 A.2d 1005, 1007 (Pa. Super. 2006).
Here, Highley’s judgment of sentence became final on or about March
11, 2015, following the expiration of the thirty-day period for filing a direct
appeal. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903(a). Thus, he had one
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year from that date—until March 11, 2016—to timely file a PCRA petition.
See 42 Pa.C.S.A. § 9545(b). Highley did not file the instant petition until May
20, 2018,3 more than three years after his judgment of sentence became final.
Accordingly, the court had no jurisdiction to entertain Highley’s PCRA petition
unless he pleaded and proved one of the three statutory exceptions to the
time bar.4 See 42 Pa.C.S.A. § 9545(b)(1)(i–iii). Highley failed to do so. The
court properly dismissed his PCRA petition.
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3 We have used the date listed on Highley’s pro se PCRA filings, rather than
the date provided on the docket. See PCRA Petition, 5/20/18, at 12 (stating
copies of PCRA petition were mailed on May 20, 2018); see also
Commonwealth v. Chambers, 35 A.3d 34, 39 (Pa. Super. 2011) (applying
prisoner mailbox rule, under which pro se prisoner’s appeals deemed filed on
date of delivery to prison authorities or placed notice of appeal in institutional
mailbox). We note the docket states the court appointed PCRA counsel on
May 30, 2018, and that Highley filed his PCRA petition on June 6, 2018—a
logical impossibility.
4 The statutory exceptions are as follows:
(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.A. § 9545(b)(1).
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The court dismissed Highley’s petition for a writ of habeas corpus as a
second, untimely PCRA petition. See Pa.R.A.P. 1925(a) Opinion, 12/12/2018,
citing 42 Pa.C.S.A. § 1942 (providing PCRA is “the sole means of obtaining
collateral relief [encompassing] all other common law and statutory remedies
for the same purpose . . . including habeas corpus and coram nobis.”).
True habeas corpus petitions are properly construed as PCRA petitions—
however, a pro se petition, though styled as a habeas corpus petition, falls
within the exclusive jurisdiction of the Commonwealth Court when it seeks
direct review of the Board of Probation and Parole’s actions. See 42 Pa.C.S.
§§ 761(a)(1)(i), 762(a)(1)(i) (outlining jurisdiction of Commonwealth Court);
see also Gillespie v. Commonwealth, Dept. of Corrections, 527 A.2d
1061 (Pa. Cmwlth. 1987) (considering action properly filed before
Commonwealth Court, though titled as petition for habeas corpus, when
petition was “not a proper habeas corpus action but rather akin to an action
in mandamus.”) and Commonwealth v. McDermott, 547 A.2d 1236, 1240
(Pa. Super. 1988) (“Appeals from common pleas court parole orders are within
the exclusive jurisdiction of the Superior Court, while appeals from
administrative parole orders are within the exclusive jurisdiction of the
Commonwealth Court”).
Here, Highley is attempting to appeal an administrative parole order and
is seeking review of the Board’s actions. See Brief of Appellant, Exhibit A, at
1–6 (reproducing Highley’s “Request for Administrative Review”). As such,
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neither this Court nor the PCRA court has jurisdiction to consider his habeas
corpus petition.5 See McDermott, supra at 1240. Consequently, though it
would have been more appropriate to construe Highley’s petition as incorrectly
filed rather than untimely, the PCRA court correctly dismissed his petition for
want of jurisdiction. See id.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/9/19
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5Should Highley seek further review of the Board’s decision, relief lies in a
petition for a writ of mandamus before the Commonwealth Court. See
Gillespie, supra.-6-