Com. v. Perez, J.

J-S64002-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JUAN PEREZ
Appellant No. 456 EDA 2016
Appeal from the PCRA Order entered January 14, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-1051451-1991
BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 16, 2016
Appellant, Juan Perez, appeals from the January 14, 2016 order of the
Court of Common Pleas of Philadelphia County denying his petition for
habeas corpus relief. Upon review, we affirm.
The facts and the procedural background of this matter can be
summarized as follows. Following a jury trial, Appellant was found guilty of
second degree murder, robbery, possessing an instrument of crime, and
criminal conspiracy. The trial court sentenced Appellant to mandatory life
imprisonment for murder, and an additional concurrent term of six and one-
half to thirteen years for robbery. The court imposed no sentences on the
remaining convictions. This Court affirmed the judgment of sentence on
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*
Former Justice specially assigned to the Superior Court.
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April 17, 1997. See Commonwealth v. Perez, 698 A.2d 670 (Pa. Super.
1997) (unpublished memorandum). Our Supreme Court denied Appellant’s
petition for allocatur on October 15, 1997, and denied reconsideration on
December 5, 1997. See Commonwealth v. Perez, 717 A.2d 1028 (Pa.
1997).
On August 22, 2012, Appellant filed a pro se PCRA petition,
challenging his conviction in light of Miller v. Alabama, 132 S. Ct. 2455
(2012). On April 10, 2014, Appellant filed a petition for habeas corpus in
which he argued that both his confinement and sentence were illegal. On
January 14, 2016, the trial court denied the PCRA petition as untimely and
the petition for habeas corpus as meritless. Appellant now appeals the
denial of his petition for habeas corpus.1
In his petition, Appellant raises two issues: (i) there is insufficient
authority for his continued detention because his sentencing order is missing
and (ii) the sentence is illegal because it is based on an unconstitutional
statute. We will address these issues ad seriatim.
“Our standard of review of a trial court’s order denying a petition for
[a] writ of habeas corpus is limited to [an] abuse of discretion.” Rivera v.
Pa. Dep’t of Corr., 837 A.2d 525, 528 (Pa. Super. 2003). As this Court
noted in Joseph v. Glunt, 96 A.3d 365 (Pa. Super. 2014):
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1
Appellant did not challenge the denial of his PCRA petition.
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[Joseph] [a/k/a Woodens] is not the first individual to assert this
species of claim. In addition to the aforementioned holding in
[Brown v. Pa. Dep’t of Corr., 81 A.3d 814 (Pa. 2013) (per
curiam)], our Commonwealth Court has adjudicated at least one
similar appeal on the merits, albeit in an unpublished
memorandum. In Travis v. Giroux, No. 489 C.D. 2013, 2013
WL 6710773 (Pa. Cmwlth. Dec. 18, 2013), an appellant
challenged the DOC’s authority to hold him in custody because,
as in the present situation, the DOC was unable to produce a
written sentencing order. Relying upon two holdings from the
United States District Court for the Eastern District of
Pennsylvania, the Commonwealth Court held that subsection
9764(a)(8) does not provide a cause of action for prisoners: The
current version of [42 Pa.C.S.A. § 9764(a)(8)] requires that a
copy of the sentencing order be provided to the [DOC] upon
commitment of an inmate to its custody. However, it does not
create any remedy or cause of action for a prisoner based
upon the failure to provide a copy to the DOC. The statute
regulates the exchange of prisoner information between the
state and county prison system, and does not provide a basis for
habeas relief. Specifically, the Commonwealth Court
emphasized that the appellant in Travis did not dispute that he
had pleaded guilty and that he was sentenced upon that plea.
Thus, even where there appeared to be no sentencing order in
the possession of the DOC or the trial court, the Commonwealth
Court held that subsection 9764(a)(8) furnished no basis for
relief where the appellant’s sentence was confirmed by the
certified record. . . . Although the decisions of the
Commonwealth Court are not binding upon this Court, they may
serve as persuasive authority. Commonwealth v. Ortega, 995
A.2d 879, 885 (Pa. Super. 2010); see also Petow v.
Warehime, 996 A.2d 1083, 1088 n.1 (Pa. Super. 2010) (“[W]e
may turn to our colleagues on the Commonwealth Court for
guidance when appropriate.”). We find the reasoning presented
in Travis to be probative and instructive. The language and
structure of section 9764, viewed in context, make clear that the
statute pertains not to the DOC’s authority to detain a duly-
sentenced prisoner, but, rather, sets forth the procedures and
prerogatives associated with the transfer of an inmate from
county to state detention. None of the provisions of section
9764 indicate an affirmative obligation on the part of the DOC to
maintain and produce the documents enumerated in subsection
9764(a) upon the request of the incarcerated person. Moreover,
section 9764 neither expressly vests, nor implies the vestiture,
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in a prisoner of any remedy for deviation from the procedures
prescribed within.
Joseph, 96 A.3d at 370-71 (emphasis in original) (footnotes and citations
omitted).
As in Joseph, Appellant “has cited no apposite legal authorities
demonstrating that the undisputed record of his judgment of sentence
maintained by the sentencing court constitutes insufficient authority for his
continuing detention.” Id. at 372. Indeed, as noted by the trial court,
Appellant was found guilty of second degree murder on June 4, 1993; he
was sentenced to life on April 27, 1994; and this Court affirmed his
judgment of sentence on April 17, 1997. Appellant did not challenge these
trial court findings. Additionally, Appellant’s own exhibit (i.e., copy of the
trial court’s quarter sessions file) not only confirms the dates and events
above described by the trial court, it also informs us that Appellant
petitioned the Supreme Court for allowance of appeal and that his petition
was denied. In light of the foregoing, we conclude there was sufficient
evidence of his convictions. Id. Accordingly, the trial court did not abuse its
discretion in denying Appellant’s habeas corpus petition.
Appellant, however, attempts to distinguish Joseph on the basis that
his sentence is illegal because it is based on an unconstitutional/repealed
statute (18 Pa.C.S.A. § 1311(d)) (established sentencing procedures and
standards regulating jury determinations of whether the death penalty
should be imposed as punishment for murder). Whatever merit the claim
might have, it is not properly before us. Indeed, it should have been raised
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in a PCRA petition, but Appellant failed to do so. See, e.g., Commonwealth
v. Fahy, 737 A.2d 214, 223 (Pa. 1999) (legality of sentence claims
cognizable under PCRA). Additionally, Appellant failed to plead and prove
the instant claim is timely. See 42 Pa.C.S.A. 9545(b)(1). Because the claim
is patently untimely2 and Appellant failed to plead and prove any of the
exceptions to the timeliness requirements, we cannot review the merits of
his claim. See Commonwealth v. Hackett, 956 A.2d 978, 984 (Pa. 2008)
(petitioner “must demonstrate the substantive requirements for one of the
exceptions to the time-bar set forth in Section 9545(b)(1)(i)-(iii) in order for
the court to have jurisdiction over his petition.”); Commonwealth v.
Callahan, 101 A.3d 118, 123 (Pa. Super. 2014) (A court lacks jurisdiction
over the merits of an untimely PCRA petition when petitioner has failed to
plead and prove the applicability of an exception to the timeliness
requirement).
Order affirmed.
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2
Appellant’s judgment of sentence became final after the Supreme Court
denied allowance of appeal on October 15, 1997, and the time for filing a
petition for writ of certiorari to the United States Supreme Court expired.
See 42 Pa.C.S.A. § 9545(b)(3); U.S. Supreme Court Rule 13 (effective
January 1, 1990) (petition for writ of certiorari is deemed timely when filed
within 90 days after discretionary review is denied by the Pennsylvania
Supreme Court). Thus, in order to satisfy the timeliness requirement,
Appellant was required to file his PCRA petition within one year from January
13, 1998. Because Appellant filed the instant petition on April 10, 2014, the
petition is patently untimely.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2016
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