Com. v. Smith, G.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GARNET D. SMITH :
:
Appellant : No. 2956 EDA 2018
Appeal from the PCRA Order Entered September 10, 2018,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0332181-1985.
BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED NOVEMBER 07, 2019
Garnet D. Smith appeals pro se from the order dismissing his third
petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
On November 2, 1980, when Smith was twenty-five years old, he shot
and killed a man outside of a bar in Germantown, Pennsylvania. On December
3, 1986, a jury convicted Smith of first-degree murder2 and possession of an
instrument of a crime (“PIC”).3 The trial court sentenced Smith to life
imprisonment without the possibility of parole for murder, and a consecutive
term of two and one-half to five years of imprisonment for PIC. This Court
affirmed Smith’s judgment of sentence, and on March 12, 1990, the Supreme
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1 42 Pa.C.S.A. §§ 9541-9546.
2 18 Pa.C.S.A. § 2502(a).
3 18 Pa.C.S.A. § 907.
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Court of Pennsylvania denied allocatur. See Commonwealth v. Smith, 552
A.2d 1053 (Pa. Super. 1988), appeal denied, 575 A.2d 112 (Pa. 1990). Smith
did not seek review with the United States Supreme Court. Therefore, Smith’s
judgment of sentence became final ninety days thereafter, on June 11, 1990.
See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13.
Smith filed his first pro se PCRA petition in 1993, and his second pro se
petition in 2005. The PCRA court dismissed those petitions, and this Court
affirmed the dismissals. See Commonwealth v. Smith, 724 A.2d 211 (Pa.
Super. 1999) (unpublished memorandum); Commonwealth v. Smith, 964
A.2d 446 (Pa. Super. 2008) (unpublished memorandum), appeal denied, 983
A.2d 1248 (Pa. 2009).
On April 24, 2014, Smith filed the instant pro se petition, which he styled
as a petition for writ of habeas corpus. Therein, Smith argued that he was
entitled to relief because his life sentence without the possibility of parole was
unconstitutional under the United States Supreme Court’s decision in Allyene
v. United States, 133 S. Ct. 2151 (2013). Despite Smith’s classification of
his filing as a petition for writ of habeas corpus, the PCRA court treated it as
a PCRA petition, and issued a Pa.R.Crim.P. 907 notice of intent to dismiss the
petition as untimely. Smith filed a response to the Rule 907 notice. On
September 10, 2018, the PCRA court entered an order dismissing the petition.
Smith filed a timely pro se notice of appeal. The PCRA court did not order
Smith to file a Pa.R.A.P. 1925(b) concise statement, but it authored an opinion
pursuant to Pa.R.A.P. 1925(a).
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On appeal Smith raises the following issue for our review: “Did the trial
court err by reviewing [Smith’s] habeas corpus petition as a PCRA petition and
dismissing it as untimely warranting a remand to the trial court for an
adjudication on the merit of the habeas corpus petition?” Smith’s Brief at 6.
Our standard of review of an order dismissing a PCRA petition is limited
to considering “whether the determination of the PCRA court is supported by
evidence of record and is free of legal error.” Commonwealth v. Brandon,
51 A.3d 231, 233 (Pa. Super. 2012).
Smith argues that the PCRA court erred in treating his habeas corpus
petition as a PCRA petition subject to timeliness considerations. He contends
that his habeas corpus petition fell outside the scope of the PCRA because he
argued therein that his life sentence without the possibility of parole is
unconstitutional under Alleyne.4 Specifically, Smith asserts that Alleyne,
when read in conjunction with Miller v. Alabama, 567 U.S. 460 (2012)
(holding that mandatory minimum life sentences without possibility for parole
for persons under the age of eighteen violate the Eighth Amendment’s
prohibition on cruel and unusual punishment), and Montgomery v.
Louisiana, 136 S. Ct. 718 (2016) (holding that Miller applies retroactively to
cases on collateral appeal), dictates that Smith’s age was an element of the
crime that should have been determined by a jury beyond a reasonable doubt.
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4 Alleyne held that, other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory minimum
must be submitted to a jury and proven beyond a reasonable doubt. 133 S.
Ct. at 2160-61.
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Accordingly, Smith claims that his sentence is unconstitutional because he
received a mandatory minimum life sentence without the possibility of parole,
and a jury never determined beyond a reasonable doubt that he was over the
age of eighteen. Smith further argues that, because the claim raised in his
habeas corpus petition implicates the constitutionality of his sentence, it is not
cognizable under the PCRA, or subject to its limitations.
First, we address whether the PCRA court correctly treated Smith’s
petition as a PCRA petition. “[B]oth the PCRA and the state habeas corpus
statute contemplate that the PCRA subsumes the writ of habeas corpus in
circumstances where the PCRA provides a remedy for the claim.”
Commonwealth v. Hackett, 956 A.2d 978, 985 (Pa. 2008). The PCRA
provides that, “[t]he action established in this subchapter shall be the sole
means of obtaining collateral relief and encompasses all other common law
and statutory remedies for the same purpose that exist when this subchapter
takes effect, including habeas corpus and coram nobis.” 42 Pa.C.S.A.
§ 9542 (emphasis added). Pennsylvania’s habeas corpus statute provides that
“the writ of habeas corpus shall not be available if a remedy may be had by
post-conviction hearing proceedings authorized by law.” 42 Pa.C.S.A.
§ 6503(b). Thus, where a petitioner’s claim is eligible for relief under the
PCRA, the petitioner must proceed thereunder. See Commonwealth v.
Peterkin, 722 A.2d 638, 641 (Pa. 1998). Entitling a petition as a writ of
habeas corpus rather than a PCRA petition does not remove the petition from
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the subject matter or the requirements of the PCRA. See Commonwealth
v. Breakiron, 781 A.2d 94, 96 n.2 (Pa. 2001).
Pennsylvania courts have consistently held that “[i]ssues concerning the
legality of sentence are cognizable under the PCRA.” Commonwealth v.
Beck, 848 A.2d 987, 989 (Pa. Super. 2004). The PCRA itself states that
“[t]his subchapter provides for an action by which . . . persons serving
illegal sentences may obtain collateral relief.” 42 Pa.C.S.A. § 9542
(emphasis added). Moreover, this Court has specifically held that Alleyne
claims implicate the legality of the sentence and, therefore, fall within the
ambit of the PCRA. See Commonwealth v. Ruiz, 131 A.3d 54, 60 (Pa.
Super. 2015) (holding that petitioners can raise an Alleyne claim in a timely
PCRA petition where the petitioner’s direct appeal was still pending when
Alleyne was decided); see also Commonwealth v. Newman, 99 A.3d 86,
90 (Pa. Super. 2014) (en banc) (holding that a challenge to a sentence
premised upon Alleyne implicates the legality of the sentence). Thus, Smith’s
challenge to the legality of his sentence based upon Alleyne is cognizable
under the PCRA, and the trial court properly construed Smith’s petition for writ
of habeas corpus as a PCRA petition.
Having concluded that Smith’s Alleyne claim is cognizable under the
PCRA, we next address whether the PCRA court erred in determining that it
lacked jurisdiction to review Smith’s petition. Pursuant to § 9545, PCRA
petitions “shall be filed within one year of the date the judgment became
final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final “at
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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 the review.” 42 Pa.C.S.A. § 9545(b)(3). The
PCRA’s time restrictions are jurisdictional in nature; thus, if a PCRA petition is
untimely, no court has the legal authority to address the substantive claims
raised in the petition. Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa.
Super. 2017).
As noted above, Smith’s judgment of sentence became final on June 11,
1990. Smith filed the instant petition on April 24, 2014, almost 24 years after
his judgment of sentence became final. Thus, Smith’s petition is facially
untimely, and the PCRA court lacked jurisdiction to address it unless Smith
pled and proved one of the three exceptions set forth in § 9545(b)(1). 5
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5 The three exceptions to the timeliness requirement are:
(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)(i), (ii), and (iii).
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Additionally, Smith must establish that he filed the petition within sixty days
of the date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2).6
In his petition, Smith did not attempt to establish any of the PCRA’s
timeliness exceptions. Indeed, in his appellate brief, Smith explicitly concedes
that in his original petition and amendment thereto, he “did not advance a
timeliness exception.” Smith’s Brief at 8. Instead, Smith’s entire argument
is premised upon his claim that the PCRA’s time restrictions do not apply to
his petition for writ of habeas corpus. However, as we have already
determined, Smith cannot avoid the dictates and limitations of the PCRA
merely by styling his petition as a writ of habeas corpus. See
Commonwealth v. Taylor, 65 A.3d 462 (Pa. Super. 2013) (holding that an
appellant’s writ of habeas corpus that challenges the legality of sentence
should be treated as PCRA petition because “the PCRA is intended to be the
sole means of achieving post-conviction relief”). Thus, because Smith failed
to plead and prove any of the timeliness exceptions provided in § 9545(b)(1),
we conclude that the PCRA court correctly determined that it lacked
jurisdiction to consider the merits of Smith’s untimely petition.
As the record supports the PCRA’s courts findings and the order is free
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6Section 9545(b)(2) has since been amended to enlarge this period from sixty
days to one year. See Act of 2018, October 24, P.L. 894, No. 146, §§ 2 and
3. Because Smith filed this appeal prior to the effective date of the
amendment, the sixty-day time period applies in this appeal. See
Commonwealth v. Beatty, 207 A.3d 957, 962 n.3 (Pa. Super. 2019).
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of legal error, we affirm the PCRA court’s order dismissing Smith’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/7/19
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