Com. v. Keys, J.

J-S47028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
JOHN A. KEYS
Appellant No. 3587 EDA 2016
Appeal from the PCRA Order October 14, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1000371-2005
BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MOULTON, J.: FILED DECEMBER 05, 2017
John A. Keys appeals from the October 14, 2016 order entered in the
Philadelphia County Court of Common Pleas dismissing as untimely his petition
filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46,
and denying his petition for writ of habeas corpus. We affirm.
The PCRA court set forth the factual and procedural history of this case,
which we adopt and incorporate herein. Opinion, 2/7/17, at 1-3 (“1925(a)
Op.”).
Keys raises the following issues on appeal:
A. Whether the trial court abused its discretion in dismissing
[Keys’] Petition for Writ of Habeas Corpus since he is
confined absent a Sentencing Order required by 42
Pa.C.S.A. § 9764(a)(3)?
B. Whether the trial court erred by denying [Keys’] request
for habeas relief stating that he is to receive time credit for
J-S47028-17
the time he spent in custody prior to the time he was
sentenced and the Pennsylvania Department of Corrections
is to correct the prison record accordingly?
Keys’ Br. at 3.
Our standard of review from the denial of post-conviction relief “is
limited to examining whether the PCRA court’s determination is supported by
the evidence of record and whether it is free of legal error.” Commonwealth
v. Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).
Further, this Court reviews a trial court’s denial of a petition for writ of
habeas corpus for an abuse of discretion. Rivera v. Pa. Dep’t of Corr., 837
A.2d 525, 528 (Pa.Super. 2003).
The PCRA court found as follows: (1) Keys’ claim that the trial court
erred in calculating his credit for time served is cognizable under the PCRA;
Keys’ PCRA petition was untimely; and Keys failed to establish any time-bar
exception; and (2) Keys’ claim for habeas relief, based on his assertion that
the Department of Corrections lacked the legal authority for his continued
detention due to the lack of a written sentencing order, was meritless because
the original sentencing order is in the case file and the sentence was accurately
reflected on the docket by the Clerk of the Court of Common Pleas. See
1925(a) Op. at 3-6. After review of the record, the parties’ briefs, and the
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J-S47028-17
relevant law, we affirm on the basis of the well-reasoned opinion of the
Honorable Leon W. Tucker, which we adopt and incorporate herein.1
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/5/2017
____________________________________________
1To the extent Keys claims that the Department of Corrections erred in
calculating his sentence, the “appropriate vehicle for redress would be an
original action in the Commonwealth Court challenging the [Department’s]
computation.” Commonwealth v. Heredia, 97 A.3d 392, 395 (Pa.Super.
2014) (quoting Commonwealth v. Perry, 563 A.2d 511, 512-13 (1989)).
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COURT OF COMMON PLEAS OF PHILADELPIDA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
VS.
JOHN KEYS CP-51-CR-1000371-2005
3587 EDA 2016
OPINION
LEON W. TUCKER, J.
This appeal comes before. the Superior Court following the dismissal of a Post Conviction
Relief Act ("PCRA")1 petition filed on April J, 2014. On October 14, 2016, the lower court
dismissed the PCRA petition and denied habeas corpus relief for the reasons setforth below.
I. PROCEDURAL HISTORY
On April27, 2007, following a jury trial presided over by the Honorable Albert J. Snite,
John Keyes (hereinafter referred to as "Petitioner") was convicted of robbery and possessing an
instrument of crime, On June 14, 2007, Petitioner was sentenced to twenty-five to fifty years'
imprisonment for the robbery conviction and a concurrent term of probation for the remaining
charge.2 Following a direct appeal, Petitioner's judgment of sentence was affirmed by the
Superior Court on April 22, 2009.3 The Pennsylvania Supreme Court denied allocatur on
CP-51-CR-1000371-200� comm, v. Keys, John
October 20, 2009'.4 opuuon
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1
·42 Pa. Cons. Stat. §§ 9541-9546;
2
Petitioner was sentenced pursuant to the "third strike'' mandatory minimum provision, 42 Pa.
Cons. Stat. § 9714.
3 Commonwealth v. Keys, 974 A.2d 1185
(Pa, Super. 2009) (unpublished memorandum).
4
Commonwealthv. Keys; 982 A.2d 509 (Pa. 2009).
-----····---·---·-··-------- · -· .....
On January 22, 2010, Petitioner timely filed his first pro se PCRA petition. Counsel was
appointed and subsequently filed a Turner/Finley no merit letter.5 On June 8, 2011, the PCRA
court issued an order denying the petition and permitted counsel to withdraw. On January 24,
2012, the Superior Court dismissed the associated appeal for failure to file a brief.6
On April 3, 2014, Petitioner filed the instant "habeas corpus" co11ateral petition.
Petitioner submitted several supplemental filings seeking both habeas corpus and PCRA relief.
. Pursuant to Pennsylvania Rule of Criminal Procedure 907, Petitioner was served notice of the
PCRA court's intention to dismiss his petition on July 12, 2016. Petitioner submitted a response
to the Rule 907 notice on August 3, 2016. On October 14, 2016, the PCRA court dismissed his
petition as untimely and denied habeas corpus relief.lOn November 8, 2016, the instant notice of
appeal was timely filed to the Superior Court.
II. FACTS
The trial court summarized the evidence adduced at trial as follows:
On December 24, 2004, at approximately 4:49 p.m., Samantha Bow[i]e was working
as a cashier at a Dollar Tree located in Penrose Plaza. Appellant walked into the
Dollar Tree with a band-aid on the side of his face and leaves stuck to the back of his
hat He walked down one of the aisles and eventually got in line al Ms. Bow[i]e's
cash register. Ms. Bow[i]e noticed Appellant was holding a soda, a note, and a brown
bag. Appellant placed the note and the bag on the counter in front of Ms. Bow[i]e's
cash register. The note said that there was a bomb in the bag and to give him
[(Appellant)] the money. Ms. Bow[i]e also recalled that Appellant started to show her
something that looked .Iike the barrel of a gun in his jacket sleeve. Ms. Bow[i]e said
that she attempted to stall Appellant, and he told her not to "play with him" and to
5
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d
213 (Pa. Super. 1988) (en bane).
6 During the pendency of the
appeal, Petitioner prematurely filed a second PCRA petition on
January 9, 2012. On March 9, 2012, the PCRA court issued an order dismissing the PCRA
petition.
7
The Honorable Leon W. Tucker issued the order and opinion in this matter in his capacity as
Supervising Judge of the Criminal Section of the Court of Common Pleas of Philadelphia - Trial
Division as of March 7, 2016, as the trial judge is no longer sitting.
2
"[jjust give me the money, or I'll kill you." Ms. Bow[i]e grabbed stacks of money out
of the register and handed it to Appellant. He then ran out of the store.
Trial Court Opinion, 6/13/08 at4.
HI. DISCUSSION
A. Petitioner's habeas corpus petition was reviewed pursuant to the dictates of the
PCRA.
With the exception of Petitioner's illegal-detention claim, Petitioner's instant submissions
seeking habeas corpus relief fell within the ambit of the PCRA because they raised a claim
potentially remediable under it. As iterated by the Superior Court,
It is well-settled that the PCRA is intended to be the sole means of achieving post-
conviction relief. 42 Pa.C.S. § 9542; Commonwealth v. Haun, 32 A.3d 697 (Pa. 2011).
Unless the PCRA could notprovide for a potential remedy, the PCRA statute subsumes
the writ of habeas corpus. Fahy, supra at 223-224; Commonwealth v. Chester, 733 A.2d
1242 (Pa. 1999). Issues that are cognizable under the PCRA must be raised in a timely
PCRA petition and cannot be raised in a habeas corpus petition. See Commonwealth v.
Peterkin, 722 A.2d 638 (Pa. 1998); see also Commonwealth v. Deaner! 779 A.2d 578
(Pa. Super. 2001) (a collateral petition that raises an issue that the PCRA statute could
remedy is to be considered a PCRA 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).
Here, Petitioner's challenge to the trial court's failure to award time credit implicated the
legality of his sentence and was therefore cognizable under the PCRA. See Commonwealth v.
Beck, 848 A.2d 987, 989 (Pa. Super. 2004); see also 42 Pa. Cons. Stat. § 9542 (''This subcha.pter
provides for an action by which persons . . . serving illegal sentences may obtain collateral
relief."). Thus, this court was constrained to review his claim pursuant to thePCRA'sdictates.
B. Petitioner's current petition was manifestly untimely under the PCRA.
Petitioner's petition was facially untimely under the PCRA. As a prefatory matter, the
timeliness of a PCRA petition is a jurisdictional requisite. Commonwealth v. Robinson, 12 A.3d
477 (Pa. Super. 2011). A PCRA petition, including a second or subsequent petition, shall be filed
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within one year of the date the underlying judgment becomes final. 42 Pa. Cons. Stat. §
9545(b)(l). 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 oftime for seeking the review." Id. § 9545(b)(3).
Petitioner's judgment of sentence became final for purposes of the PCRA on April 18,
2009, ninety days after the Pennsylvania Supreme Court denied allowance of appeal and the time
for filing a petition for writ of certiorari in the United States Supreme Court expired. See id.;
U.S. Sup. Ct.R. 13 (effective January 1, 1990). His current petition, filed on April 3, 2014, was
therefore untimely by approximately four years. See 42 Pa. Cons. Stat. § 9545(b)(l).
C. Petitioner was not eligible for a limited timeliness exception under 42 Pa. Cons. Stat.
§ 9545 (b)(1)(i)-(iii).
Despite the one-year deadline, the PCRA permits the late filing of a petition where a
petitioner alleges and proves one of the three narrow exceptions to the mandatory time-bar under
subsections 9545(b)(l)(i)-(iii). To invoke an exception, a petition must allege and the petitioner
must prove:
(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 ofthe 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
ofthe 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.
Id. § 9545(b)(l )(i)-(iii).
Although Petitioner acknowledged the PCRA's time-bar, he claimed that his petition is
exempt from its mandate because his judgment of sentence never became final. See PCRA
4
petition, 4/3/14 at 5. Petitioner argued specifically that the unlawfulness of his sentence
forestalled the attachment of finality. Id. Petitioner's failure to cite any persuasive legal authority
notwithstanding, the PCRA's section regarding judgment finality does not incorporate a
sentence-propriety provision. See 42 Pa.C.S. § 9545. Ultimately, Petitioner's bald repudiation of
the PCRA's time-bar did not permit its circumvention. Thus, Petitioner failed to plead and prove
an exception to the statutory time-bar.
D. Petitioner was not entitled to habeas corpus relief based upon the Department of
Corrections' lack of a written sentencing order.
The PCRA court did, however, evaluate Petitioner's claim that the Department of
Corrections ("DOC") lacked legal authority for his continued detention due to the lack of a
written sentencing order, in contravention of 42 Pa. Cons. Stat. § 9764(a)(8) (relating to
information required upon commitment and subsequent disposition), and 37 Pa. Code § 91.3
(reception of inmates). See Joseph v. Glunt, 96 AJd 365 (Pa. Super. 2014) (concluding that the
PCRA did not subsume an illegal-sentence claim based on the inability of the DOC to produce a
written sentencing order). Upon review, the Honorable Albert J. Snite, Jr., entered sentencing
orders in this matter on June 14, 2007. The original orders are being maintained as a part of
Petitioner's case file. Additionally, upon reviewing the criminal docket through the Common
Pleas Case Management System, Petitioner's sentence was accurately docketed by the Clerk of
Courts of this court. The Superior Court of Pennsylvania has held that even when the DOC lacks
possession of a written sentencing order, it has continuing authority to detain a prisoner. Id. at
372.
IV. CONCLUSION
This court has once again evaluated a collateral petition filed by Mr. Keys. Petitioner
failed to meet his burden of proving an exception to the PCRA's statutory time-bar, Additionally,
5
Petitioner's claim that he is being unlawfully detained by the DOC is rneritless. Accordingly, for
the reasons stated herein, the decision. of the court dismissing the PCRA petition and denying
habeas corpus relief should be affirmed.
BY THE COURT:
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