Com. v. Gay, M.

J-S72034-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
MARCUS GAY :
:
APPELLANT : No. 3487 EDA 2016
Appeal from the PCRA Order October 11, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0504821-1995
BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 14, 2017
Appellant Marcus Gay appeals from the order of the Court of Common
Pleas of Philadelphia County dismissing Appellant’s purported habeas petition,
which it deemed an untimely petition under the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
On October 31, 1996, a jury convicted Appellant of first-degree murder
and possession of an instrument of crime (PIC). On November 4, 1996, the
trial court sentenced Appellant to life imprisonment for murder and a
concurrent three to five-year prison sentence for PIC. Appellant did not file a
direct appeal.
On December 7, 1998, Appellant filed a PCRA petition, requesting the
reinstatement of his direct appeal rights. After this petition was granted,
Appellant filed a direct appeal. On August 29, 2001, this Court affirmed the
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S72034-17
judgment of sentence. On March 27, 2002, the Supreme Court denied
Appellant’s petition for allowance of appeal. Appellant subsequently filed three
unsuccessful PCRA petitions which have no relevance to this decision.
On December 30, 2015, Appellant filed the instant pro se petition, which
he styled as a petition for writ of habeas corpus. On June 7, 2016, the lower
court filed an order, characterizing Appellant’s filing as a PCRA petition and
issuing notice of its intent to dismiss the petition without a hearing pursuant
to Pa.R.Crim.P. 907. On June 21, 2016, Appellant filed a response to the Rule
907 notice. On October 11, 2016, the PCRA court dismissed Appellant’s
petition. This timely appeal followed.
As an initial matter, we review the lower court’s decision to characterize
Appellant’s purported habeas petition as a PCRA petition. As a general rule,
the PCRA “shall be the sole means of obtaining collateral relief and
encompasses all other common law and statutory remedies … including
habeas corpus and coram nobis.” Commonwealth v. Descardes, 635 Pa.
395, 402-403, 136 A.3d 493, 497–98 (2016) (citing 42 Pa.C.S. § 9542).
Unless the PCRA cannot provide the petitioner a potential remedy, the PCRA
subsumes the writ of habeas corpus. Commonwealth v. Fahy, 558 Pa. 313,
331-32, 737 A.2d 214, 223-24 (1999).
In Appellant’s purported habeas petition, he argued that the deficiencies
in his criminal information caused his conviction and sentence to be legal
nullities and deprived the trial court of subject matter jurisdiction. We agree
that Appellant’s claim that the trial court lacked jurisdiction was a cognizable
-2-
J-S72034-17
matter under the PCRA. See 42 Pa.C.S.A. § 9543(a)(2)(viii) (providing that
a petitioner’s claim that his conviction or sentence resulted from a “proceeding
in a tribunal without jurisdiction” is eligible for collateral review under the
PCRA). Thus, the lower court correctly treated Appellant’s purported habeas
petition as a PCRA petition.
When reviewing the denial of a PCRA petition, our standard of review is
limited to examining whether the PCRA court's determination is supported by
evidence of record and whether it is free of legal error. Commonwealth v.
Smallwood, 155 A.3d 1054, 1059 (Pa.Super. 2017) (citations omitted). As
an initial matter, we must determine whether this PCRA petition was timely
filed. “[T]he PCRA's timeliness requirements are jurisdictional in nature and
must be strictly construed; courts may not address the merits of the issues
raised in a petition if it is not timely filed.” Commonwealth v. Leggett, 16
A.3d 1144, 1145 (Pa.Super. 2011) (citations omitted).
Generally, a PCRA petition must be filed within one year of the date the
judgment of sentence becomes final unless the petitioner meets his burden to
plead and prove one of the exceptions enumerated in 42 Pa.C.S.A. §
9545(b)(1)(i)-(iii), which include: (1) the petitioner’s inability to raise a claim
as a result of governmental interference; (2) the discovery of previously
unknown facts or evidence that would have supported a claim; or (3) a newly-
recognized constitutional right. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). However,
the PCRA limits the reach of the exceptions by providing that a petition
invoking any of the exceptions must be filed within 60 days of the date the
-3-
J-S72034-17
claim first could have been presented. Leggett, 16 A.3d at 1146 (citing 42
Pa.C.S.A. § 9545(b)(2)).
As noted above, the trial court sentenced Appellant on November 4,
1996, this Court affirmed the judgment of sentence on August 29, 2001, the
Supreme Court denied allowance of appeal on March 27, 2002. Appellant did
not seek review in the Supreme Court of the United States. Section
9545(b)(3) of the PCRA provides that a judgment of sentence becomes final
at the conclusion of direct review or the expiration of the time for seeking the
review. 42 Pa.C.S.A. § 9543(b)(3). Appellant’s judgment of sentence became
final on June 26, 2002, after the expiration of the ninety-day period in which
he was allowed to seek review in the U.S. Supreme Court. See U.S. Sup.Ct.
R. 13(1) (stating “a petition for a writ of certiorari to review a judgment in any
case ... is timely when it is filed with the Clerk of this Court within 90 days
after entry of the judgment”). As such, Appellant needed to file his PCRA
petition by June 26, 2003. As Appellant filed the instant petition on December
30, 2015, over twelve years past the deadline, this petition is facially untimely.
Moreover, Appellant makes no attempt to plead or prove that one of the
PCRA timeliness exceptions is applicable in this case. Commonwealth v.
Hudson, 156 A.3d 1194, 1197 (Pa.Super. 2017) (emphasizing that the
petitioner bears the burden to prove an applicable statutory exception to the
PCRA timeliness requirement). As a result, we conclude that the PCRA court
correctly dismissed Appellant’s PCRA petition as untimely filed.
Order affirmed.
-4-
J-S72034-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2017
-5-