Com. v. Wise, K.

J-S54040-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KENDALE WISE
Appellant No. 182 MDA 2014
Appeal from the Order Entered December 27, 2013
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0001114-2001
BEFORE: LAZARUS, MUNDY, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 05, 2014
Appellant, Kendale Wise, appeals from the December 27, 2013 order
dismissing his petition pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. §§ 9541-46. Also pending is an application for habeas corpus
relief filed with this court. We affirm the PCRA court’s order and deny the
application for relief.
Appellant is serving a 15 to 30 year sentence for attempted homicide
following his conviction at the conclusion of a September 12, 2001 jury trial.
This Court affirmed the judgment of sentence on March 26, 2003. Appellant
filed a timely first PCRA petition on February 6, 2004. The PCRA court
dismissed that petition on October 27, 2004 and this Court affirmed on
January 23, 2006.
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Appellant sought a second round of collateral review with a series of
pro se filings beginning in November of 2010. The PCRA court entered its
final order dismissing Appellant’s second PCRA petition on February 10,
2011. This Court affirmed on February 15, 2012. While the appeal of
Appellant’s second PCRA petition was pending, he commenced another
series of pro se filings. On February 1, 2012, the PCRA court filed a
“clarification order” in which it explained to Appellant that his prior PCRA
petitions had been dismissed and that he had no basis for seeking collateral
relief. Appellant appealed the February 1, 2012 order, and this Court
dismissed that appeal on April 2, 2012. Appellant filed yet another PCRA
petition on May 21, 2012, which the PCRA court dismissed on June 22, 2012.
This Court quashed Appellant’s appeal from the June 22, 2012 order on
December 13, 2012.
The instant action commenced on December 12, 2013, with
Appellant’s purported habeas corpus petition. Appellant argues he is entitled
to habeas corpus relief because he was deprived of his right to counsel
during trial. He argues that a habeas corpus petition is his only means of
obtaining relief, finally conceding that he cannot obtain PCRA relief because
of the PCRA’s jurisdictional timeliness requirements.
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The substance of Appellant’s claim is that his trial counsel did not file
an entry of appearance.1 Thus, Appellant claims he was deprived of his right
to counsel, even though counsel did represent him throughout the trial and
direct appeal process. Appellant raised the same claim in his untimely
November 2010 PCRA petition.
We conclude the PCRA court properly treated Appellant’s claim as an
untimely PCRA petition and dismissed it. The PCRA subsumes all forms of
collateral relief, including habeas corpus, so long as a remedy is available
under the PCRA. Commonwealth v. West, 938 A.2d 1034, 1044 (Pa.
2007). Appellant’s assertion that he was deprived of his constitutional right
to counsel is cognizable under the PCRA. 42 Pa.C.S.A. § 9543(a)(2)(i)
(providing that a petitioner is eligible for relief where the conviction resulted
from a “violation of the Constitution of this Commonwealth or the
Constitution or laws of the United States which, in the circumstances of the
particular case, so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken place”). To the
extent Appellant asserts his counsel was ineffective for failing to file an entry
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1
Pa.R.Crim.P. 120(A)(1) requires retained counsel to file an entry of
appearance with the clerk of courts promptly after retention. Pa.R.Crim.P.
120(A)(1). Rule 120(A)(2), however, provides that where counsel is
appointed, the filing of the appointment constitutes counsel’s entry of
appearance. Pa.R.Crim.P. 120(A)(2). The docket does not reflect an
appointment or an entry of appearance by privately retained counsel.
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of appearance, that claim also is cognizable under the PCRA. See 42
Pa.C.S.A. § 9543(a)(2)(ii).
Since Appellant’s purported habeas corpus petition is actually a PCRA
petition, it must comply with the PCRA’s timeliness requirements:
b) Time for filing petition.
(1) Any petition under this subchapter, including a second
or subsequent petition, shall be filed within one year of the date
the judgment becomes final, unless the petition alleges and the
petitioner proves that:
(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). Section 9545’s timeliness provisions are
jurisdictional. Commonwealth v. Ali, 86 A.3d 173, 177 (Pa. 2014).
Appellant’s judgment of sentence became final in April of 2003, as he
did not seek Supreme Court review of this Court’s March 26, 2003
memorandum affirming his judgment of sentence. Appellant’s petition is
facially untimely, and he does not assert the applicability of any timeliness
exception. In fact, he concedes they do not. The PCRA court properly
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treated Appellant’s habeas corpus petition a PCRA petition and dismissed for
lack of jurisdiction.2
Order affirmed. Application denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/5/2014
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2
Appellant also filed a purported application for habeas corpus relief in this
Court on August 7, 2014. We deny that application for the reasons stated in
the main text.
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