Com. v. Powell, H.

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2023 PA Super 26COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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v. :
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HOWARD OMAR POWELL : No. 699 MDA 2022
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Appellant :
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Appeal from the Order Entered March 9, 2022
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-1079-2000
BEFORE: LAZARUS, J., MURRAY, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED FEBRUARY 17, 2023
Appellant, Howard Omar Powell, appeals from the order entered in the
Court of Common Pleas of Schuylkill County that dismissed as meritless his
“Writ of Praecipe for Petition for Writ of Habeas Corpus”, in which he asserted
he has served more than 20 years’ incarceration on an illegal 20 to 40-year
sentence imposed on his conviction of a Criminal Attempt Murder-Serious
Bodily Injury1 charge that was neither included in the Criminal Information
filed against him nor submitted to the jury. For reasons that follow, we affirm
the order denying relief, albeit on different grounds than set forth below, as
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. § 901(a).
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we treat Appellant’s petition as an untimely serial Post Conviction Relief Act
(“PCRA”)2 petition.3
In 2001, a jury convicted Appellant of Attempted First-Degree Murder;
Aggravated Assault, Infliction of Serious Bodily Injury by use of a deadly
weapon (firearm); Robbery, Infliction of Serious Bodily Injury; Conspiracy to
commit robbery; and related charges.4 These charges arose from Appellant’s
robbery of a gas station attendant, Nirmal Singh, in the late-night hours of
March 7, 2000, during which Appellant twice shot Singh with a .38 handgun.
On May 23, 2001, Appellant received an aggregate sentence of 27 to 54 years'
incarceration, which comprised, inter alia, a sentence of not less than 20 years
and no more than 40 years on his conviction for Attempted First Degree
Murder by application of 18 Pa.C.S. § 1102(c). 5
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2 42 Pa.C.S.A §§ 9541-9546.
3 Appellant unilaterally re-captioned his appeal to this Court as, “Howard
Powell v. George Miller, Schuylkill County Court of Common Pleas, Judge
Jacqueline L. Russell and Schuylkill County District Attorney’s Office”, even
though the lower court had changed the caption to “Commonwealth v. Howard
Omar Powell” and placed the matter on its criminal docket. Because we
conclude, infra, that Appellant’s petition is properly analyzed as one subject
to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546 and its
timeliness provisions, we have changed the caption to reflect this status.
4 18 Pa.C.S. §§ 901/2502(a), 2702, 3701 and 903/3701, respectively.
5 Section 1102(c) of the Crimes Code provides, “a person who has been
convicted of attempt ... to commit murder ... where serious bodily injury
results may be sentenced to a term of imprisonment which shall be fixed by
the court at no more than 40 years. Where serious bodily injury does not
result, the person may be sentenced to a term of imprisonment which shall
(Footnote Continued Next Page)
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In the ensuing 20 years, Powell has filed a direct appeal and seven
petitions under the PCRA at least one of which Appellant had originally entitled
a “Petition for Writ of Habeas Corpus” until this Court construed it as a PCRA
petition raising a challenge implicating the legality of his sentence.6 Each
time, our courts have determined the appeals were without merit. The instant
habeas corpus petition at issue, if it were cognizable under the PCRA, would
represent his eighth PCRA petition.
On January 25, 2021, Appellant filed the instant pro se “Writ of Praecipe
for Petition for Writ of Habeas Corpus” in which he argued that his substantive
due process rights to be free from deprivation of liberty without due process
under Article I, Section 9 of the Pennsylvania Constitution were violated when
the sentencing court imposed a 20 to 40-year sentence for Attempted Murder
with Serious Bodily Injury pursuant to Section 1102(c). See Petition, at 6.7
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be fixed by the court at not more than 20 years.” 18 Pa.C.S.A. § 1102(c).
6 Notably, in Appellant’s sixth PCRA petition he claimed his sentence was illegal
because, inter alia, he was not charged with attempted murder under 18
Pa.C.S. § 1102(a) (applying a 20 to 40-year sentence upon proof beyond a
reasonable doubt that the defendant caused serious bodily injury) and that
the mandatory minimum aspect of his sentence was, therefore, void pursuant
to Alleyne v. United States, 133 S.Ct. 2151 (2013). See Commonwealth
v. Powell, 1374 MDA 2014, 2015 WL 7299805 (Pa. Super. filed April 10,
2015). As noted infra, we did not address this claim on the merits because it
was raised in an untimely PCRA appeal.
7 We note the following regarding relief under habeas corpus:
When a petitioner is in custody by virtue of a judgment of sentence
of a court of competent jurisdiction, the writ generally will not
(Footnote Continued Next Page)
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In the same petition, Appellant also asserted that the jury was never asked to
determine whether serious bodily injury occurred in conjunction with the
attempted murder and that the Criminal Information “did not allege that [he]
caused serious bodily injury to [the victim] in connection with the attempted
murder charge.” See Petition at 6-7.
Although the lower court deduced that Appellant sought a Writ of Habeas
Corpus primarily to circumvent the timeliness requirements of the PCRA, it
concluded, nevertheless, that one of Appellant’s claims resided outside the
ambit of the PCRA, namely, his claim that he was serving a 20 to 40-year
sentence for the crime of Criminal Attempt of Murder with Serious Bodily
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lie. Commonwealth ex rel. Wilson v. Keeper of the Jail of
Philadelphia County, 26 Pa. 279, 280 (1856). The rationale for
this limitation is the presumption of regularity which follows the
judgment. Commonwealth ex rel. Spencer v. Ashe, 364 Pa.
442, 71 A.2d 799 (1950); see Commonwealth ex rel.
DeSimone v. Cavell, 185 Pa.Super. 131, 138 A.2d 688 (1958).
The writ, as stated above, is an extraordinary remedy and,
therefore, a judgment rendered in the ordinary course is beyond
the reach of habeas corpus. That conviction cannot be put
aside lightly, and it becomes stronger the longer the
judgment stands. Commonwealth ex rel. Hoch v.
Banmiller, 186 Pa.Super. 57, 140 A.2d 625 (1958).
Consequently, habeas corpus generally is not available to
review a conviction which has been affirmed on appeal.
Commonwealth ex rel. Dugan v. Day, 180 Pa.Super. 643, 122
A.2d 90 (1956).
Joseph v. Glunt, 96 A.3d 365, 372 (Pa. Super. 2014) (quoting
Commonwealth v. Wolfe, 605 A.2d 1271, 1272–73 (1992)) (emphasis
added).
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Injury despite the fact that the Criminal Information did not specify serious
bodily injury as an element of the charge. Ultimately, however, the lower
court rejected Appellant’s habeas claim on the merits and entered its February
1, 2022, order denying Appellant’s pro se Petition for Writ of Habeas Corpus.
Appellant filed a pro se motion for reconsideration on February 13, 2022, but
the lower court denied his motion by its order of March 9, 2022.
On April 27, 2022, Appellant filed a pro se notice of appeal. Upon
docketing statement review, this Court issued to Appellant a show-cause order
on June 9, 2022, requesting a response explaining why his ostensibly untimely
appeal should not be quashed given that the presumptively appealable order
was the February 1, 2022, order denying his petition for writ of habeas corpus.
See Gardner v. Consolidated Rail Corp., 100 A.3d 280, 283 (Pa. Super.
2014) (citation omitted) (The mere filing of “a motion for reconsideration,
unless expressly granted within the thirty-day appeal period, does not toll the
time period for taking an appeal from a final, appealable order.”). Appellant
filed a response on June 27, 2022, in which he asserted that the lower court’s
February 1, 2022, order did not inform him of his appeal rights and that if he
had been properly informed, he would have filed a notice of appeal rather than
his February 13, 2022, motion for reconsideration.
For its part, the lower court has filed its July 27, 2022, “Statement in
Lieu of Opinion” asserting that Appellant’s patent failure to file a timely appeal
warrants dismissal of the present matter. While the trial court acknowledges
“that the failure to file a timely appeal ‘as a result of a breakdown in the court
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system’ is an exception to the 30-day time requirement set forth in Pa.R.A.P.
903(a),8 see Commonwealth v. Stansbury, 219 A.3d 157 (Pa. Super.
2019) (citing Commonwealth v. Braykovich, 664 A.2d 133, 136-38 (Pa.
Super. 1995))[,]” it opines that “no such exception exists in this case.” Trial
Court Opinion, 7/27/22, at 1-2.
Our independent review of the record reveals that Appellant’s pro se
notice of appeal was received by this Court’s Prothonotary’s Office on April 27,
2022, 76 days after the trial court’s February 1, 2022, Order denying his
Petition for Writ of Habeas Corpus relief and 48 days after the lower court’s
March 9, 2022, Order denying Appellant’s February 13, 2022, pro se “Petition
for Re-Argument of Habeas Corpus” (which the court treated as Appellant’s
Motion for Reconsideration). Notably, the record indicates that Appellant
received copies of the respective court orders in this regard. See Pa.R.A.P.
108(a)(1) (appeal period begins to run on the date the clerk of courts “mails
or delivers copies of the order to the parties”).
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8 Pennsylvania Rule of Appellate Procedure 903(a) provides that a notice of
appeal “shall be filed within 30 days after the entry of the order from which
the appeal is taken.” Pa.R.A.P. 903(a). “The timeliness of an appeal and
compliance with the statutory provisions granting the right to appeal implicate
an appellate court's jurisdiction and its competency to act,” and “[a]bsent
extraordinary circumstances, an appellate court lacks the power to extend the
time provided ... for taking an appeal.” Commonwealth v. Williams, 106
A.3d 583, 587 (Pa. 2014). Accordingly, one’s failure to appeal timely from an
order “generally divests the appellate court of its jurisdiction to hear the
appeal.” Id.-6-
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Therefore, even if we were to assume that Appellant filed his notice of
appeal with prison authorities on April 20, 2022, which is the hand-written
date that appears on his pro se notice of appeal,9 and that the 30-day appeal
clock commenced only after the lower court had expressly accepted
Appellant’s pro se motion for reconsideration/re-argument and thereafter
denied it by the court’s March 9, 2022,10 Appellant’s notice of appeal still would
have been untimely filed 42 days after the March 9, 2022, order. Moreover,
during this Court’s correspondence with Appellant regarding the ostensible
untimeliness of his appeal, Appellant made no allegation that his receipt of the
lower court’s March 9, 2022, order dismissing his petition for
reconsideration/reargument was unduly delayed such that it denied him a fair
opportunity to file a timely notice of appeal to this Court. See Jones, 700
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9 “[F]or prisoners proceeding pro se, a notice is deemed filed as of the date it
is deposited in the prison mail system. This is known as the ‘prisoner mailbox
rule.’ “Commonwealth v. Cooper, 710 A.2d 76, 78 (Pa. Super. 1998)
(citing Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997)) (internal
citations omitted). “Whether [an] appellant actually deposited the notice in
the prison mail system by [the date in question] is a factual question. Our
Supreme Court has provided a non-exhaustive list of the types of evidence
a pro se prisoner may present to prove that he mailed a notice of appeal within
the deadline. Our Supreme Court has also clearly stated that “we are inclined
to accept any reasonably verifiable evidence of the date that the prisoner
deposits the appeal with the prison authorities.” Id. In this vein, we may
regard a self-dated notice of appeal as “plausible” evidence of mailing
under Cooper, particularly where the opposing party does not contest such a
date.
10The docket sheet indicates that a copy of the lower court’s order denying
Appellant’s Motion for Reconsideration was mailed to Appellant on March 9,
2022.
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A.2d at 426 (observing that appellants bear the burden to prove the timeliness
of their appeals).
To the extent Appellant was seeking the civil remedy of habeas corpus
relief, therefore, we would conclude his failure to file a timely notice of appeal
deprives this Court of jurisdiction to review his appeal. See Pa.R.A.P. 105(b)
(stating that while an appellate court may enlarge the time where justice may
so require, “the court may not enlarge the time for filing a notice of appeal, a
petition for allowance of appeal, a petition for permission of appeal, or a
petition for review.”).
If Appellant’s habeas corpus petition, instead, were construed properly
as one raising issues predicated upon legality of sentencing claims cognizable
under the PCRA, and understanding, further, that Appellant never received
the equivalent of Pa.R.Crim.P. 907 notice of either the court’s intention to
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dismiss or of his 30-day appeal time-limit,11, 12 we still would conclude that
neither the lower court nor this Court has jurisdiction to consider Appellant’s
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11 We understand, of course, that the lower court did not provide Rule 907
notice because it construed Appellant’s petition as a habeas petition. As noted
supra, Appellant maintains that he would have filed a timely notice of appeal
rather than his motion for reconsideration—which he filed 12 days after the
trial court’s order denying his requested relief—if the trial court had supplied
him with notice that he had 30 days from the denial of his petition for writ of
habeas corpus in which to file a notice of appeal. On this point, we observe
that in the context of the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§
9541-9546, Pennsylvania Rule of Criminal Procedure 907(4) provides that
when a PCRA petition is dismissed without a hearing,
the judge promptly shall issue an order to that effect and shall
advise the defendant by certified mail, return receipt requested,
of the right to appeal from the final order disposing of the petition
and of the time limits within which the appeal must be filed. The
order shall be filed and served as provided in Rule 114.
Pa.R.Crim.P. 907(4).
12 This Court has held:
Jurisdiction is vested in the Superior Court upon the filing of a timely
notice of appeal. “An order granting, denying, dismissing, or otherwise
finally disposing of a petition for post-conviction collateral relief shall
constitute a final order for purposes of appeal.” Pa.R.Crim.P. 910. A
final order is one that ends the litigation or disposes of the entire case.
An appellant has a period of thirty days after the entry of an order
during which an appeal on that order can be taken. Commonwealth
v. Jerman, 762 A.2d 366, 368 (Pa. Super. 2000); Pa.R.A.P. 903(a).
Commonwealth v. Liebensperger, 904 A.2d 40, 43 (Pa. Super. 2006)
(some quotation marks and quotations omitted).
The appeal period does not begin to run until the date the Clerk of Courts
notes the date of service on the docket. See Pa.R.Crim.P. 114(c)(2)(c)
(docket entries “shall contain” the “date of service of the order”);
Pa.R.Crim.P. 907(4) (indicating that an order dismissing a petition without a
(Footnote Continued Next Page)
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petition, because Appellant has presented his claim more than one year after
his judgment of sentence became final, and he failed, otherwise, to invoke
any exception to the statutory time-bar at Section 9541(a)(1)(i-iii).
It is well-established that the timeliness of a PCRA petition is
jurisdictional and that if the petition is untimely, courts lack jurisdiction over
the petition and cannot grant relief. Commonwealth v. Wharton, 584 Pa.
576, 886 A.2d 1120, 1124 (2005); see also Commonwealth v. Callahan,
101 A.3d 118, 121 (Pa. Super. 2014) (holding, courts do not have jurisdiction
over an untimely PCRA petition). Any PCRA petition, including second and
subsequent petitions, must either (1) be filed within one year of the judgment
of sentence becoming final, or (2) plead and prove a timeliness exception. 42
Pa.C.S.A. § 9545(b). Id.
Furthermore,
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hearing “shall advise the defendant...of the time limits within which the appeal
must be filed.”); Pa.R.A.P. 108(a)(1), (d)(1) (the appeal period only begins
running on the date the Clerk “mails or delivers copies of the order to the
parties”).
Accordingly, when there is a docketing failure or lack of notice, this Court
will excuse an untimely appeal. See Jerman, supra (finding a breakdown in
the PCRA court and deeming the PCRA petitioner's appeal timely where Clerk
failed to notify the petitioner of the order denying collateral
relief); Braykovich, supra (discussing cases and holding failure of Clerk of
Courts to advise the defendant that his post-sentence motion had been denied
by operation of law excused late-filed appeal).
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“the PCRA is intended to be the sole means of achieving post-
conviction [collateral] relief.” Commonwealth v. Taylor, 65
A.3d 462, 465 (Pa. Super. 2013).
If an issue is cognizable under the PCRA, the issue must be raised
in a timely PCRA petition and cannot be raised in a petition for writ
of habeas corpus. Id. at 465-466 (stating that, “[u]nless
the PCRA could not provide for a potential remedy, the PCRA
statute subsumes the writ of habeas corpus” (citation omitted)).
In other words, “a defendant cannot escape the PCRA time-bar by
titling his petition or motion as a writ of habeas corpus.” Id. at
466. Moreover, regardless of how a petition is titled, courts are
to treat a petition filed after a judgment of sentence becomes final
as a PCRA petition if it requests relief contemplated by the PCRA.
Commonwealth v. Wrecks, 934 A.2d 1287, 1289 (Pa. Super.
2007); see also Commonwealth v. Torres, 223 A.3d 715, 716
(Pa. Super. 2019) (stating, “so long as a pleading falls within the
ambit of the PCRA, the court should treat any pleading filed after
the judgment of sentence is final as a PCRA petition” (citation
omitted)); Commonwealth v. Hromek, 232 A.3d 881, 884 (Pa.
Super. 2020) (affirming the Wrecks’ holding that regardless of
how a filing is titled, a petition should be treated as filed under
the PCRA if it is filed after the judgment of sentence becomes final
and seeks relief provided under the PCRA). This Court
in Taylor, supra, held that a petition challenging the legality
of sentence on the grounds the sentence exceeded the statutory
limit was “undoubtedly cognizable under the PCRA” and,
therefore, any such petition regardless of its title was to be
treated as a PCRA petition. Taylor, 65 A.3d at 467; see also 42
Pa.C.S.A. § 9543(a)(2)(vii) (stating that, to be eligible for relief
under the PCRA, the petitioner must plead and prove by a
preponderance of the evidence that the sentence resulted from
the “imposition of a sentence greater than the lawful maximum”).
Commonwealth v. Fantauzzi, 275 A.3d 986, 994–95 (Pa. Super. 2022).
Appellant’s petition asserted that his current imprisonment has
extended unconstitutionally beyond 20 years. Specifically, he maintained that
the 20 to 40-year sentence he currently serves is based on his conviction of a
charge that was not included in the criminal information filed against him.
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This Court has previously viewed such a claim as implicating the legality of
one’s sentence.
In Commonwealth v. Barnes, 167 A.3d 110, 117 (Pa. Super. 2017)
(en banc), this Court held that the imposition of a Section 1102(c) 40–year
maximum sentence was illegal where the Commonwealth did not charge
Barnes with attempted murder resulting in serious bodily injury, Barnes “was
not on notice that the Commonwealth sought to prove that a serious bodily
injury resulted from attempted murder or to invoke the greater maximum
sentence,” and “most importantly for purposes of Apprendi [v. New Jersey,
530 U.S. 466, 120 S.Ct. 2348 (2000)], the jury was never presented with, nor
rendered a decision on, the question of whether a serious bodily injury
resulted from the attempted murder.” 167 A.3d at 118–19.
Because Appellant’s present claim, therefore, is predicated upon a
legality of sentencing claim cognizable under the PCRA, Appellant was required
either to raise it with the lower court within one year after his judgment of
sentence became final or to establish how it qualifies for an exception from
the PCRA time-bar. See Commonwealth v. Seskey, 86 A.3d 237, 242 (Pa.
Super. 2014) (noting, “[t]hough not technically waivable, a legality [of
sentence] claim may nevertheless be lost should it be raised . . . in an untimely
PCRA petition for which no time-bar exception applies, thus depriving the court
of jurisdiction over this claim.”). Having failed to do either, Appellant’s claim
is untimely, and the lower court was without jurisdiction to entertain it.
For the foregoing reasons, we affirm.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/17/2023
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