Com. v. Byrd, H.

J-S23026-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HADDRICK BYRD :
:
Appellant : No. 2133 EDA 2016
Appeal from the PCRA Order Dated June 13, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0317152-1975
BEFORE: OLSON, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY SOLANO, J.: FILED JULY 14, 2017
Appellant Haddrick Byrd appeals from the order dismissing his petition
filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
We affirm.
Appellant was sentenced on January 12, 1976, to life imprisonment for
second-degree murder. Appellant appealed directly to the Pennsylvania
Supreme Court, which affirmed his judgment of sentence. See
Commonwealth v. Byrd, 417 A.2d 173 (Pa. 1980). Appellant filed a
petition for collateral relief in 1980.1 We affirmed the denial of relief under
that petition in 1988, and the Pennsylvania Supreme Court denied
Appellant’s petition for review. See Commonwealth v. Byrd, No. 3024 PHL
1987 (Pa. Super. May 26, 1988) (unpublished memorandum). Appellant filed
1
Appellant’s first petition was filed under the Post Conviction Hearing Act,
the predecessor of the PCRA.
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a second petition in 19942; we again affirmed the trial court’s denial of relief
on that petition in 1996, and again the Supreme Court denied review. See
Commonwealth v. Byrd, No. 02795 PHL 94, (Pa. Super. Mar. 12, 1996)
(unpublished memorandum), appeal denied, 678 A.2d 824 (Pa. 1996).3
Appellant’s instant petition was filed pro se as a petition for writ of
habeas corpus ad subjiciendum in the Civil Division of the Court of Common
Pleas of Philadelphia County in October 2013. In his petition,4 Appellant
claimed that no criminal complaint had been filed at the inception of his
2
The PCRA was in effect at the time of the filing of Appellant’s second
petition.
3
The above-mentioned facts were garnered from a very sparse record. We
received notice from the Philadelphia County Court of Common Pleas that
“The above captioned Common Pleas Court case is missing from the Office of
Judicial Records; accordingly, a reconstructed record was prepared from
documents retrieved from the CDMS [(the court’s Document Management
System)] of available scanned court documents and notes of testimony.”
The scanned documents provided to this Court begin with the PCRA petition
filed in 2013, which is currently before us, and the trial court docket, which
has effectively no entries prior to 2013. See also PCRA Ct. Op., 10/14/16,
at 1 n.3. The problem posed by the absence of judicial records is
compounded by the fact that Police Department records relating to Appellant
also are missing. See note 5, infra. Because we conclude that we have
access to sufficient records to permit us properly to decide this appeal, we
shall refrain from further comment on the missing records, except to note
our concern. We trust that the Philadelphia court and the Philadelphia police
will take all appropriate measures to try to correct this situation.
4
We do not recount those complaints in Appellant’s petition that have not
been included in his issues on appeal.
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case5 and that he had never been indicted by a grand jury.6 According to
Appellant, because of these defects, he never received formal notice of the
charges against him in this case; the trial court therefore lacked authority to
sentence him; his resulting judgment of sentence is null and void; and his
incarceration is unlawful. Appellant claims that his conviction and sentence
resulted from violations of Sections 9 and 10 of Article I of the Constitution
of Pennsylvania and Amendments 6 and 14 of the United States
Constitution, which protect a defendant’s rights to due process of law. See
Appellant’s Brief at 20.
The petition was transferred to the criminal division, which received it
on November 6, 2013. The PCRA court determined that Appellant’s habeas
5
Appellant made a Right to Know Request in 2015, a copy of which has
become part of the certified record in this case due to Appellant’s having
sent it to the PCRA court. Appellant requested that the Philadelphia Police
Department provide him with a copy of his original criminal complaint, arrest
report, and affidavit of probable cause. The response from the Philadelphia
Police Department is also included in the record: an affidavit signed by an
officer states, “At this time, PPD is unable to verify the existence of the
requested records, due to the unavailability of [Appellant’s] case file in [the]
homicide archives.” According to the affidavit, Appellant’s case file was
checked out from the police’s archives in 2015 (about five weeks after
Appellant made his request) by someone who was identified as a state
parole officer. When the officer responding to the Right to Know request
attempted to locate the file, she discovered that the name of the supposed
state parole officer who allegedly took the file is not recognized by either the
city or county branches of the State Board of Probation and Parole.
6
Appellant’s contention that he never was indicted is inconsistent with an
assertion made by Appellant in his second PCRA petition, which argued that
“amendment of the grand jury’s indictment to include the robbery and
conspiracy [charges] violated his constitutional right to a fair trial.” See
Byrd, No. 02795 PHL 94 at 3.
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petition should be treated as a PCRA petition, and that, as such, it was
untimely. On August 21, 2015, the PCRA court issued a notice of its
intention to dismiss Appellant’s petition without a hearing, pursuant to
Pa.R.Crim.P. 907. Appellant responded on September 1, 2015. The PCRA
court dismissed Appellant’s petition on June 13, 2016. Appellant thereafter
filed a timely appeal to this Court.
Appellant presents the following issues for our review:
1. The PCRA court committed error and abused its
discretion in treating appellant’s habeas corpus petition
under 42 Pa.C.S.A. §§ 6501-6505 as a petition under the
PCRA[,] 42 Pa.C.S.A. §§ 9541-9546[,] and dismissing it as
untimely filed without an evidentiary hearing when the
claim that the judgment is void is not cognizable under the
PCRA.
2. The PCRA court committed error and abused its
discretion in failing to address whether the District
Attorney’s Office perpetrated a fraud on the court in
proceeding to trial against the appellant while knowing no
formal notice of charges were filed against the appellant
and thus the trial court lacked statutory and constitutional
authority to proceed in this case and impose a void
judgment in violation of due process.
Appellant’s Brief at ix.
“[I]n reviewing the propriety of an order granting or denying PCRA
relief, this Court is limited to ascertaining whether the evidence supports the
determination of the PCRA court and whether the ruling is free of legal
error.” Commonwealth v. Andrews, ___ A.3d ___, 2017 WL 1290747 at *
3 (Pa. Super. Apr. 7, 2017) (citation omitted).
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In its Rule 1925(a) opinion, the PCRA court explained that it treated
Appellant’s petition for a writ of habeas corpus as a PCRA petition for the
following reasons:
The Post Conviction Relief Act states that it “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.” 42 Pa. Cons. Stat. § 9542(2016). . . . Our Superior Court has explained:
Unless the PCRA could not provide for a potential
remedy, the PCRA statute subsumes the writ of
habeas corpus. Issues that are cognizable under the
PCRA must be raised in a timely PCRA petition and
cannot be raised in a habeas corpus petition.
Phrased differently, a defendant cannot escape the
PCRA time-bar by titling his petition or motion as a
writ of habeas corpus.
Commonwealth v. Taylor, 65 A.3d 462, 465–66 (Pa.
Super. 2013) (citations and footnotes omitted).
Instantly, [Appellant] asserted that he was not sent
formal charges thus divesting the court of jurisdiction to
impose a sentence. [Appellant’s] claim of lack of
jurisdiction was clearly cognizable under the PCRA
pursuant to Section 9543(a)(2)(viii), which states a claim
that the conviction or sentence resulted from a proceeding
in a tribunal without jurisdiction is eligible for relief under
the PCRA. Therefore, [Appellant’s] filing was reviewed
under the dictates of the PCRA.
PCRA Ct. Op. at 3.
Appellant contends that the PCRA court erred in treating his petition as
a PCRA petition because the PCRA does not provide relief for his claim.
Appellant claims that Section 9543(a)(2)(viii) is inapplicable to his case
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because his challenge is not to the jurisdiction of the PCRA court, but rather
to the “power or authority” of that court. See Appellant’s Brief at 5-6.
Appellant differentiates between a jurisdictional claim and a claim regarding
a court’s power to act. See id. at 7.7
We agree with the trial court’s conclusion that Appellant’s claims fall
within the purview of the PCRA. The PCRA provides:
This subchapter provides for an action by which persons
convicted of crimes they did not commit and persons serving
illegal sentences may obtain collateral relief. The 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. This subchapter is not intended to limit the availability of
remedies in the trial court or on direct appeal from the judgment
of sentence, to provide a means for raising issues waived in prior
proceedings or to provide relief from collateral consequences of a
criminal conviction. Except as specifically provided otherwise, all
provisions of this subchapter shall apply to capital and noncapital
cases.
42 Pa.C.S. § 9542.
7
Appellant relies on Roberts v. Gibson, 251 A.2d 799 (Pa. Super. 1969),
which, in turn, cites Riedel v. Hum. Rel. Comm’n of Reading, 739 A.2d
121, 124 (Pa. 1999). In Roberts, this Court determined that a default
judgment was not void on its face because jurisdictional requirements were
met, even though the complaint did not contain averments or allegations
sufficient to give rise to a cause of action. Roberts, 251 A.2d at 803. In
Riedel, the Supreme Court reversed a Commonwealth Court decision that
held, sua sponte, that the Human Relations Commission of the City of
Reading lacked jurisdiction over an unlawful housing practice action. The
Supreme Court held that the Commission did have jurisdiction over the
action, and that the Commonwealth Court had confused the jurisdiction of
the Commission with the question whether the Commission had the power to
enforce a challenged city ordinance. Riedel, 739 A.2d at 124-25.
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Section 9543 specifically provides that among the claims cognizable
under the PCRA are those asserting that the conviction resulted from “[a]
proceeding in a tribunal without jurisdiction.” 42 Pa.C.S. § 9543(a)(2)(viii).
While there is a distinction between a court’s jurisdiction and its power to
act, see generally Commonwealth v. Mockaitis, 834 A.2d 488, 495 (Pa.
2003), a claim that the defendant lacked formal notice of the charges
against him challenges the Commonwealth’s invocation of the jurisdiction of
the trial court. In Commonwealth v. Little, 314 A.2d 270 (Pa. 1974), our
Supreme Court explained:
Turning, then, to subject-matter jurisdiction, our initial
inquiry is directed to the competency of the court to hear
and determine controversies of the general class to which
the case presented for consideration belongs. In the case
at bar the competency of the Court of Common Pleas of
Allegheny County, acting through its criminal division, to
try a charge of murder and manslaughter is clear beyond
question. But to invoke this jurisdiction, something more is
required; it is necessary that the Commonwealth confront
the defendant with a formal and specific accusation of the
crimes charged. This accusation enables the defendant to
prepare any defenses available to him, and to protect
himself against further prosecution for the same cause; it
also enables the trial court to pass on the sufficiency of the
facts alleged in the indictment or information to support a
conviction. The right to formal notice of charges,
guaranteed by the Sixth Amendment to the Federal
Constitution and by Article I, Section 9 of the Pennsylvania
Constitution, is so basic to the fairness of subsequent
proceedings that it cannot be waived even if the defendant
voluntarily submits to the jurisdiction of the court.
In the case before us, the requirement of notice to the
defendant is fully satisfied by the indictment returned by
the grand jury. Once the indictment was found, nothing
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else was needed to perfect the jurisdiction of the court
which accepted Little's plea.
Little, 314 A.2d at 272-73 (citations, quotation marks, and footnote
omitted); accord Commonwealth v. Jones, 929 A.2d 205, 211-12 (Pa.
2007); Commonwealth v. Serrano, 61 A.3d 279, 287 (Pa. Super. 2013).
Appellant’s collateral attack upon his conviction based upon a lack of notice
of the charges against him therefore equates to an attack upon the trial
court’s jurisdiction to sentence Appellant.
In addition, as Appellant’s claim is based on a violation of provisions of
the Pennsylvania and United States Constitutions that guarantee due
process, his petition also is cognizable under Section 9543’s provision
applicable to “[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.” 42 Pa.
C.S. § 9543(a)(2)(i).8 As Appellant’s claim is eligible for relief under the
PCRA, we hold that the PCRA court did not err in treating Appellant’s petition
for writ of habeas corpus as a PCRA petition.
8
Appellant argues that his claim would not fall under Section 9543(a)(2)(i)
because lack of notice does not affect the “truth-determining process.”
Appellant’s Brief at 6. However, it is difficult to imagine a defect having a
greater effect on the process of determining the truth at trial than a lack of
notice to the defendant about the charges against him. The Commonwealth
asserts that Appellant’s claim would also fall within 42 Pa.C.S. §
9543(a)(2)(vi), which addresses previously unavailable exculpatory
evidence. We need not address the applicability of that provision.
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After categorizing Appellant’s habeas petition as a PCRA petition, the
PCRA court concluded that Appellant’s petition was untimely. The court
reasoned:
A PCRA petition, including a second or subsequent
petition, must ordinarily be filed within one year of the
date the underlying judgment becomes final. 42 Pa. Cons.
Stat. § 9545(b)(1)(2016). A judgment is deemed final “at
the conclusion of 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. Cons. Stat. § 9545(b)(3)(2016). In this
case, [Appellant’s] conviction became final in 1980. The
instant petition was filed November 6, 2013, over thirty-
two (32) years from the date of finality. Therefore, the
petition was patently untimely, and this Court lacked
jurisdiction to address the merits.
Despite the one-year deadline, the PCRA permits the
late filing of a petition where a petitioner alleges and
proves one of the three narrow exceptions to the
mandatory time bar under 42 Pa. Cons. Stat. §
9545(b)(1)(i)-(iii).5 Outside of these narrow exceptions,
Pennsylvania courts have no jurisdiction to address he
substantive merits of an untimely petition.
Commonwealth v. Robinson, 837 A.2d 1157 (Pa.
2003); Commonwealth v. Gamboa-Taylor, 753 A.2d
780 (Pa. 2000).
Here, [Appellant] argued that the court did not have
jurisdiction to convict or sentence him due to an alleged
lack of charging documents. Although a claim that the
court lacked jurisdiction is eligible for relief under the . . .
PCRA Section 9543(a)(2)(viii), it must still fulfill the time-
bar requirements. These time restrictions are jurisdictional
in nature. “If a PCRA petition is untimely, neither this
Court nor the trial court has jurisdiction over the petition.”
Commonwealth v. Derrickson, [923 A.2d] 466, 468 (Pa.
Super. 2007) (citations omitted). Despite [Appellant’s]
argument that his claim was not waivable, it did not
constitute an exception to the timeliness requirements.
Since [Appellant] did not invoke one of the exceptions to
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the timeliness provision, the PCRA court lacked jurisdiction
to address the merits of his untimely PCRA petition.
______________
5
42 Pa. Cons. Stat. § 9545(b)(1) reads in full: “(i) The
failure to litigate a claim was the result of government
interference; (ii) the facts upon which the claim is
predicated were not known to the petitioner and could
[not] have been ascertained in 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.”
PCRA Ct. Op. at 3-5.
Appellant does not assert that he meets one of the three exceptions to
the time bar. Instead, Appellant argues that his petition was not filed more
than one year after his judgment of sentence became final, because his
judgment of sentence never became final. Appellant posits that because
the trial court lacked jurisdiction over Appellant’s case,9 it lacked authority to
enter judgment against him. Therefore, Appellant’s judgment of sentence is
“without force or effect,” and cannot trigger the timeliness requirements of
the PCRA. See Appellant’s Brief at 2, 8-10, 19-21.
Appellant’s argument misconstrues the PCRA. The statute demands
that a petition be filed within one year of the entry of a final judgment
9
We recognize the incongruity between Appellant’s argument that he falls
outside the purview of the PCRA because he challenges the authority (but
not the jurisdiction) of the trial court, and his argument that his petition is
timely under the PCRA because his judgment of sentence was entered
without jurisdiction.
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(unless the petitioner pleads and proves that one of the three timeliness
exceptions applies), and specifies that “[f]or purposes of this
subchapter, a judgment becomes 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
the review.” 42 Pa.C.S. § 9545(b)(3). This timing requirement is
jurisdictional. Derrickson, 923 A.2d at 468. Therefore, even if Appellant’s
judgment of sentence is arguably void for want of jurisdiction, the PCRA
court did not have authority to examine the merits of that question without
first determining whether direct review of Appellant’s judgment (whether
void or not) had ended more than a year before the PCRA petition was filed.
The court’s finding that direct review of Appellant’s judgment ended more
than a year before the PCRA filing meant that the PCRA court lacked
jurisdiction over Appellant’s petition. We therefore affirm the PCRA court’s
dismissal of Appellant’s petition.10
Order affirmed.
10
Were we to entertain Appellant’s claim, we would be opening the door for
any prisoner to attack the jurisdiction of the trial court at any time after
sentence, regardless of whether new facts have come to light in his case or
new law has changed his position. Such a result would be improper under
the PCRA. See Commonwealth v. Stout, 978 A.2d 984, 988 (Pa. Super.
2009) (“[A]ppellant’s application for a writ of habeas corpus appears to us to
be nothing more than a tactical choice to evade the timeliness requirements
of the PCRA. Such tactical maneuvering is not permitted”); Commonwealth
v. Dickerson, 900 A.2d 407, 412 (Pa. Super. 2006) (“[T]he writ of habeas
corpus . . . is not available merely because an otherwise cognizable claim is
jurisdictionally time-barred”), appeal denied, 911 A.2d 933 (Pa. 2006).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2017
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