Williams, K. a/k/a Stewart, K. v. Kerestes, J.

J-A10006-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KEVIN WILLIAMS A/K/A KIRBY STEWART IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JOHN KERESTES
Appellee No. 1407 MDA 2014
Appeal from the Order Entered August 8, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0004395-1999
BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 24, 2015
Appellant, Kevin Williams a/k/a Kirby Stewart, appeals pro se from the
order entered in the Lancaster County Court of Common Pleas, which
dismissed his pro se serial petition for collateral relief pursuant to the Post
Conviction Relief Act (“PCRA”),1 which Appellant styled as a “Praecipe for
Writ of Habeas Corpus ad Subjiciendum.” We affirm.
The relevant facts and procedural history of this case are as follows.
On March 29, 2000, the court convicted Appellant of first-degree murder, in
connection with Appellant’s instruction to his associates to kill Victim in
retaliation for Victim’s theft of money and guns from a crack house
maintained by Appellant. The court sentenced Appellant on the day of his
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1
42 Pa.C.S.A. §§ 9541-9546.
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conviction to life imprisonment. This Court affirmed Appellant’s judgment of
sentence on March 30, 2001, and our Supreme Court denied allowance of
appeal on August 20, 2001. See Commonwealth v. Stewart, 777 A.2d
510 (Pa.Super. 2001), appeal denied, 566 Pa. 681, 784 A.2d 117 (2001).
From 2001-2012, Appellant unsuccessfully litigated multiple PCRA petitions.
On December 26, 2013, Appellant filed the current pro se petition
(styled as a petition for habeas corpus relief), as a civil action in the
Lancaster County Court of Common Pleas. On February 10, 2014, the court
entered an order stating that Appellant’s current petition is actually a PCRA
petition and transferring the petition to the Clerk of Courts. On August 8,
2014, the court denied PCRA relief.2 Appellant timely filed a pro se notice of
appeal on August 21, 2014. On September 11, 2014, the court ordered
Appellant to file a concise statement of errors complained of on appeal,
pursuant to Pa.R.A.P. 1925(b). Appellant timely filed his concise statement
on September 26, 2014; Appellant filed a supplemental concise statement
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2
The record is unclear whether the court issued notice of its intent to
dismiss Appellant’s petition without a hearing, per Pa.R.Crim.P. 907.
Appellant has not raised this issue on appeal, so he waived any defect in
notice. See Commonwealth v. Taylor, 65 A.3d 462 (Pa.Super. 2013)
(explaining appellant’s failure to raise on appeal PCRA court’s failure to
provide Rule 907 notice results in waiver of claim). Moreover, failure to
issue Rule 907 notice is not reversible error where the petition is untimely.
Id. See also Commonwealth v. Pursell, 561 Pa. 214, 749 A.2d 911
(2000) (indicating court’s failure to provide notice of intent to dismiss
without hearing does not warrant remand, where petition fails in all
respects).
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on October 27, 2014.3
Appellant raises the following issues for our review:
DID THE [PCRA] COURT ERR IN ITS DECISION; KNOWING
THAT PENNSYLVANIA’S [DEPARTMENT OF CORRECTIONS
(“DOC”)], HAS NO SENTENCING ORDER, THUS VIOLATING
STATUTORY PROVISION[S] AT 37 PA. CODES § 91.3[;] 42
PA.C.S.A. § 9764, 42 PA.C.S.A. § 9762, TITLE 42
PA.C.S.A. § 9764(A)(8)[.]
DID THE [PCRA] COURT ERR IN ITS DECISION; KNOWING
THAT APPELLANT’S “BILL OF INFORMATION” IS A
GENERAL CHARGE OF 2501(a), THUS VIOLATING THE 14 TH
AMENDMENT OF THE UNITED STATES CONSTITUTION,
VIOLATING DUE-PROCESS, FAILING TO GIVE APPELLANT
“NOTICE” OF WHAT CHARGES TO DEFEND AGAINST AND
THUS FINDING APPELLANT GUILTY OF 2502(a) AFTER
TRIAL.
DID THE [PCRA] COURT ERR IN ITS DECISION; IN
SUSPENDING THE WRIT OF HABEAS CORPUS, KNOWING
THAT THE ISSUES RAISED ARE NOT COGNIZABLE UNDER
THE [PCRA].
DID THE [PCRA] COURT ERR IN ITS DECISION; KNOWING
THAT APPELLANT WAS NEVER FORMALLY ARRAIGNED, ON
A “CAPITAL OFFENSE” VIOLATED DUE-PROCESS [AND
THE] 14TH AMENDMENT OF THE UNITED STATES
CONSTITUTION….
DID THE [PCRA] COURT ERR IN ITS DECISION; KNOWING
THAT THE COMMONWEALTH NEVER GAVE “NOTICE OF
AGGRAVATING CIRCUMSTANCES” VIOLATING DUE
PROCESS OF THE LAW [AND THE] 14TH AMENDMENT OF
THE UNITED STATES CONSTITUTION, THUS VIOLATING
PA.R.CRIM.P. 802.
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3
Notwithstanding our disposition, we would in any event decline to consider
the issues raised in Appellant’s supplemental concise statement, which he
filed without leave of court.
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DID THE [PCRA] COURT ERR IN ITS DECISION; KNOWING
THAT THERE IS NO “STATUTORY AUTHORIZATION” FOR A
SENTENCE, THEN THAT SENTENCE IS ILLEGAL AND MUST
BE VACATED AS A MATTER OF LAW, AND THE SENTENCE
IS SUBJECT TO BE CORRECTED.
DID THE [PCRA] COURT ERR IN ITS DECISION; KNOWING
THAT THE COMMONWEALTH IS IN VIOLATION OF ACT OF
JULY 5, 2012, NO. 122 § 3, AND CODIFIED AT 12 PA.C.S.
§ 9763.
DID THE [PCRA] COURT ERR IN ITS DECISION; KNOWING
THE RETURN ON A WRIT IS 42 PA.C.S. § 6504, THUS
VIOLATING IT WITHOUT A HEARING, IS ABUSE OF
JUDICIARY MISCONDUCT.
DID THE [PCRA] COURT ERR IN ITS DECISION; ON
WHETHER THE SENTENCING COURT IMPOSED AN ILLEGAL
SENTENCE IN VIOLATION OF [APPELLANT’S] SIXTH
AMENDMENT RIGHTS BY INVOKING THE MANDATORY
MINIMUM PROVISION OF 18 PA.C.S. § 6317, WHERE SUCH
DETERMINATION WAS NOT DETERMINED OR FOUND TO
BE PRESENT BY A JURY BEYOND A REASONABLE DOUBT.
AND WHETHER A CHALLENGE TO A SENTENCE PURSUANT
TO ALLEYNE V. UNITED STATES, ___ U.S. ___, 133
S.CT. 2151, 186 L.ED.2D 314 (2013) IMPLICATES THE
LEGALITY OF THE SENTENCE AND IS NON-WAIVABLE.
DID THE [PCRA] COURT ERR IN ITS DECISION; KNOWING
THAT THE PEOPLE INVOLVED IN [APPELLANT’S] CASE
NEVER TOOK A[N] “OATH OF OFFICE” SO THEY WERE
IMPERSONATING PUBLIC OFFICIALS, IN VIOLATION OF
ARTICLE VI, SECTION (3) OF THE PENNSYLVANIA
CONSTITUTION, WITHOUT [AN] OATH OF OFFICE.
DID THE [PCRA] COURT ERR IN ITS DECISION; TO BASE
ITS RATIONALE TO DENY [APPELLANT’S] WRIT OF HABEAS
CORPUS AD SUBJICIENDUM, WAS INHERENTLY BIAS—THE
[PRESIDENT] JUDGE, JUDGE, [DISTRICT ATTORNEY] &
[ASSISTANT DISTRICT ATTORNEY], HAVE ALL
BENEFITTED FROM APPELLANT’S INCARCERATION. THESE
ACTORS WERE OPERATING UNDER THE GUISE OF FRAUD
ON THE COURT.
(Appellant’s Brief at ii-iii).
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Preliminarily, we observe that any petition for post-conviction
collateral relief will generally be considered a PCRA petition, even if
captioned as a request for habeas corpus relief, if the petition raises issues
for which the relief sought is available under the PCRA. See generally
Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214 (1999);
Commonwealth v. Lantzy, 558 Pa. 214, 736 A.2d 564 (1999);
Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638 (1998); 42
Pa.C.S.A. § 9542 (stating PCRA shall be sole means of obtaining collateral
relief and encompasses all other common law and statutory remedies for
same purpose). The writ of habeas corpus continues to exist as a separate
remedy only if the claim raised is not cognizable under the PCRA.
Peterkin, supra at 552, 722 A.2d at 640. See also Commonwealth v.
Beck, 848 A.2d 987 (Pa.Super. 2004) (explaining petition for writ of habeas
corpus will be deemed PCRA petition if it raises issues that are generally
cognizable under PCRA); Commonwealth v. Deaner, 779 A.2d 578, 580
(Pa.Super. 2001) (stating “any collateral petition raising issues with respect
to remedies offered under the PCRA will be considered a PCRA petition”).
When considering what types of claims fall within the ambit of the PCRA,
“the scope of the PCRA eligibility requirements should not be narrowly
confined to its specifically enumerated areas of review.” Commonwealth
v. Hackett, 598 Pa. 350, 363, 956 A.2d 978, 986 (2008), cert. denied, 556
U.S. 1285, 129 S. Ct. 2772, 174 L. Ed. 2d 277 (2009). “Such narrow
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construction would be inconsistent with the legislative intent to channel
post-conviction claims into the PCRA’s framework, and would instead create
a bifurcated system of post-conviction review where some post-conviction
claims are cognizable under the PCRA while others are not.” Id. (internal
citation omitted). See also 42 Pa.C.S.A. § 9543(a)(2) (describing claims
eligible for relief under PCRA).
Additionally, the timeliness of a PCRA petition is a jurisdictional
requisite. Taylor, supra. A PCRA petition must be filed within one year of
the date the underlying judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1).
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). The three statutory exceptions to the
timeliness provisions in the PCRA allow for very limited circumstances under
which the late filing of a petition will be excused. 42 Pa.C.S.A. § 9545(b)(1).
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 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
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(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)-(iii). A petitioner asserting a timeliness
exception must file a petition within sixty days of the date the claim could
have been presented. See 42 Pa.C.S.A. § 9545(b)(2). “As such, when a
PCRA petition is not filed within one year of the expiration of direct review,
or not eligible for one of the three limited exceptions, or entitled to one of
the exceptions, but not filed within 60 days of the date that the claim could
have been first brought, the trial court has no power to address the
substantive merits of a petitioner’s PCRA claims.” Commonwealth v.
Gamboa-Taylor, 562 Pa. 70, 77, 753 A.2d 780, 783 (2000).
Instantly, even with the number and phrasing of the issues presented
on appeal, Appellant’s chief complaint is that the Department of Corrections
lacks the original, signed sentencing order in Appellant’s case. Appellant
insists that absent the original sentencing order, there is no statutory
authorization for his confinement, which renders his sentence illegal and
entitles him to immediate release. Despite his effort to distance his current
petition from the PCRA, Appellant’s petition poses claims directly related to
the PCRA statute; as presented, he challenges the legality of his conviction
and sentence. See generally Commonwealth v. Fowler, 930 A.2d 586
(Pa.Super. 2007), appeal denied, 596 Pa. 715, 944 A.2d 756 (2008)
(holding any collateral attack on legality of sentence must be raised in PCRA
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petition); Guarrasi v. Scott, 25 A.3d 394, 402 (Pa.Cmwlth. 2011) (stating
plaintiff cannot use civil action to wage collateral attack on his criminal
proceedings). Thus, the trial court properly treated Appellant’s most recent
prayer for collateral relief as a PCRA petition.4 See Peterkin, supra;
Deaner, supra.
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4
Appellant challenges the lack of the original sentencing order in his first,
sixth, seventh, and twelfth (not listed in his statement of questions
presented) issues on appeal. Appellant’s third and eighth issues on appeal
relate to Appellant’s general complaint that the court should not have
treated Appellant’s petition as a PCRA petition. Appellant incorporates this
argument into his twelfth issue as well. Appellant’s second and fourth issues
assert that the Commonwealth’s decision to charge Appellant with murder
generally was improper; Appellant avers the Commonwealth was required to
charge him with first-degree murder (instead of murder generally) if
Appellant could be convicted for that crime. Appellant attacks his conviction
based on this alleged error by the Commonwealth. These claims also
provide remedies available under the PCRA. See generally Hackett, supra
(explaining appellant’s collateral attack on underlying murder conviction falls
within ambit of PCRA). Moreover, Appellant already litigated these issues in
his first PCRA petition, so Appellant is ineligible for PCRA relief on his second
and fourth appellate issues. See 42 Pa.C.S.A. § 9543(a)(3) (stating that to
be eligible for PCRA relief, petitioner must plead and prove allegation of error
has not been previously litigated). Appellant’s fifth and ninth issues attack
the legality of his sentence, claiming (respectively) that the Commonwealth
failed to notify Appellant of aggravating circumstances in his case; and
imposed an improper mandatory minimum sentence. Thus, these claims fall
under the purview of the PCRA. See Peterkin, supra; Fowler, supra;
Deaner, supra. Finally, Appellant’s tenth and eleventh appellate issues
baldly assert, inter alia, that the judges, district attorneys, and assistant
district attorneys involved with his case violated their respective oaths of
office, conspired to violate Appellant’s due process rights, and impersonated
public officials. Appellant states he discovered these alleged improprieties in
2014. These claims likewise provide remedies available under the PCRA.
See generally 42 Pa.C.S.A. § 9543(a)(2)(i) (explaining PCRA provides relief
where petitioner pleads and proves that conviction or sentence resulted from
violation of Constitution of this Commonwealth or Constitution or laws of
(Footnote Continued Next Page)
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Further, although challenges to the legality of a conviction and/or
sentence are subject to review within the PCRA, a petition asserting those
claims must still first satisfy the PCRA’s time limits or demonstrate the
application of a statutory timeliness exception. Fowler, supra at 592.
Here, our Supreme Court denied allowance of appeal from the judgment of
sentence on August 20, 2001. Appellant did not seek further direct review.
Therefore, his judgment of sentence became final on November 18, 2001,
upon expiration of the time to file a petition for writ of certiorari with the
United States Supreme Court. See U.S.Sup.Ct.R. 13 (allowing ninety (90)
days to file petition for writ of certiorari). Appellant filed the current, pro se
serial petition for collateral relief on December 26, 2013, which is patently
untimely. See 42 Pa.C.S.A. § 9545(b)(1).
In his effort to keep his current petition outside the PCRA, Appellant
did not plead or prove any of the statutory exceptions required to revive an
otherwise untimely PCRA petition.5 See 42 Pa.C.S.A. § 9545(b)(1)(i-iii);
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(Footnote Continued)
United States which, in circumstances of particular case, so undermined
truth-determining process that no reliable adjudication of guilt or innocence
could have taken place).
5
To the extent Appellant attempts to invoke the “new constitutional right”
exception at 42 Pa.C.S.A. § 9545(b)(1)(iii) (in connection with his ninth
issue on appeal), Appellant’s reliance on Alleyne does not afford relief. In
Alleyne, the United States Supreme Court held that any fact increasing the
mandatory minimum sentence for a crime is considered an element of the
crime to be submitted to the fact-finder and found beyond a reasonable
doubt. See Alleyne, supra. Recently in Commonwealth v. Newman, 99
(Footnote Continued Next Page)
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Gamboa-Taylor, supra. Thus, Appellant’s petition remains a patently
untimely PCRA petition, and the court properly dismissed it. Accordingly, we
affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2015
_______________________
(Footnote Continued)
A.3d 86 (Pa.Super. 2014) (en banc), this Court made clear that Alleyne is
subject to limited retroactivity; in other words, Alleyne is applicable only to
criminal cases still pending on direct review. Id. at 90. Alleyne does
not apply retroactively, however, to cases where the judgment of sentence
has already become final. Commonwealth v. Miller, 102 A.3d 988
(Pa.Super. 2014) (explaining neither our Supreme Court nor United States
Supreme Court has held that Alleyne applies retroactively, which is fatal to
appellant’s attempt to invoke exception to PCRA’s time-bar). Here,
Appellant’s judgment of sentence became final on November 18, 2001. The
Supreme Court decided Alleyne on June 17, 2013. Appellant’s judgment of
sentence was already final before Alleyne was decided. Appellant also did
not comply the sixty-day rule. See 42 Pa.C.S.A. § 9545(b)(2); Gamboa-
Taylor, supra. Moreover, Appellant claims the court imposed the
mandatory minimum sentence under 18 Pa.C.S.A. § 6317 (requiring
imposition of mandatory minimum sentence where defendant committed
drug offense in school zone). Appellant’s sentence resulted from his
conviction for first-degree murder; the court did not impose a mandatory
minimum sentence under Section 6317. Thus, even if Alleyne applied
retroactively, and Appellant had met the sixty-day rule, Alleyne would not
afford Appellant relief.
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