J-S70035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

NASSIR WHITE, :

:

Appellant : No. 23 EDA 2016

Appeal from the PCRA Order December 15, 2015

in the Court of Common Pleas of Philadelphia County,

Criminal Division, No(s): CP-51-CR-0013498-2007

BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 15, 2016

Nassir White (“White”), pro se, appeals from the Order denying his 

second Petition for relief filed pursuant to the Post Conviction Relief Act 

(“PCRA”).1 We affirm.

On July 21, 2008, White pled guilty to third-degree murder, possession 

of a firearm prohibited and recklessly endangering another person 

(“REAP”).2 On that same date, and in accordance with the plea agreement, 

the trial court sentenced White to an aggregate prison term of 221⁄2 to 45 

years in prison. White filed no direct appeal of his judgment of sentence. 

White filed a timely first PCRA Petition, which the trial court dismissed. 

This Court affirmed the Order of the PCRA court. See Commonwealth v. 

White, 32 A.3d 842 (Pa. Super. 2011) (unpublished memorandum). 

 

1 42 Pa.C.S.A. §§ 9541-9546.

2 See 18 Pa.C.S.A. §§ 2502, 6105, 2705.
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On April 8, 2014, White filed a pro se Petition for writ of habeas 

corpus. In his Petition, White asserted that the trial court’s written 

sentencing Order fails to set forth the statutory authority for White’s 

sentence and, therefore, his sentence is illegal. Petition for Writ of Habeas 

Corpus at 5, 6 (unnumbered). On June 17, 2015, the PCRA court issued 

Notice of its intention to dismiss White’s PCRA Petition as untimely filed. In 

a Memorandum Order and Opinion filed on December 15, 2015, the PCRA 

court opined that White’s claim was not cognizable under the PCRA. PCRA 

Court Opinion, 12/15/15, at 2. Nevertheless, the PCRA court denied White 

relief. White subsequently filed the instant timely appeal. 

White presents the following claims for our review:

(1) Did the [PCRA c]ourt err in treating [White’s] Writ of Habeas 

Corpus Ad Subjiciendum as a PCRA [Petition], when the issue 

raised is not cognizable under the PCRA statute?

(2) Did the [PCRA] court err in transferring [White’s] Writ of 

Habeas Corpus Ad Subjiciendum from the Civil Trial Division to 

the Criminal Division, when [the] Writ of Habeas Corpus is civil 

in nature?

(3) Did the [PCRA c]ourt err when it failed to specify or notify on 

the record[,] or in [its] Sentencing [O]rder/Judgment of 

sente[n]ce a statute or provision authorizing the sentence[,] 

imposed on [White], which would make the Sentencing 

Order/Judgment of sentence invalid and not a binding document, 

which has caused [White’s] unlawful continued restraint?

Brief for Appellant at 3 (issues renumbered).3 

 

3

In the Argument section of his brief, White addresses these claims 

together. 
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White claims that the court of common pleas improperly transferred 

his habeas corpus Petition to the criminal division, where it was then 

considered as a Petition for relief under the PCRA. Id. at 7. White contends 

that this transfer violated his right to due process. Id. White further argues 

that he is entitled to habeas corpus relief, as the trial court failed to set forth 

the statutory authorization for its sentence in the written sentencing Order, 

and unlawfully imposed a “mandatory minimum” sentence. Id. at 7-9.

Before addressing the merits of White’s underlying claim, we first must 

determine whether White’s Petition is cognizable under the PCRA. See 

Commonwealth v. Peterkin, 722 A.2d 638, 640 (Pa. 1998) (stating that 

both 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); see also 42 Pa.C.S.A. § 9542 (providing 

that claims that can be brought under the PCRA must be brought under that 

Act). The PCRA court, relying upon this Court’s decision in Joseph v. Glunt, 

96 A.3d 365 (Pa. Super. 2014), concluded that White’s claim was not 

cognizable under the PCRA. PCRA Court Opinion, 12/15/15, at 2. The PCRA 

court’s reliance upon Glunt is misplaced.

In Glunt, the defendant claimed that the Department of Corrections 

(“DOC”) was without authority to detain him based upon the lack of any

written sentencing order. Glunt, 96 A.3d at 368. This Court explained that 

“a claim that a defendant’s sentence is illegal due to the inability of the DOC 
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to produce a written sentencing order related to [his] judgment of sentence 

constitutes a claim legitimately sounding in habeas corpus.” Id. (citation 

and internal quotation marks omitted). 

Here, White acknowledges the existence of the written sentencing 

Order. See Brief for Appellant at 9 (stating that White “produced a copy of 

the sente[n]cing order/judgment of sentence”). In his Petition, White 

challenges the lack of statutory authorization for his sentence, and the 

sentencing judge’s failure to set forth the statutory authorization for the 

sentence on the record or in the sentencing Order. Id. at 8-9. White’s 

claim implicates the legality of his sentence, a claim that is cognizable under 

the PCRA. See Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super. 

2014) (stating that “[i]f no statutory authorization exists for a particular 

sentence, that sentence is illegal and subject to correction”) (citation 

omitted); Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013) 

(recognizing that “[the PCRA] provides for an action by which ... persons 

serving illegal sentences may obtain collateral relief”); see also 

Commonwealth v. Hackett, 956 A.2d 978, 986 (Pa. 2008) (explaining that 

when considering what types of claims are cognizable under the PCRA, “the 

scope of the PCRA eligibility requirements should not be narrowly confined to 

its specifically enumerated areas of review.”). Accordingly, we review the 

denial of White’s Petition within the context of the PCRA. 
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Before we can address the merits of White’s claims, we must 

determine whether White timely filed his PCRA Petition. “[A] court may 

entertain a challenge to the legality of the sentence[,] so long as the court 

has jurisdiction to hear the claim. In the PCRA context, jurisdiction is tied to 

the filing of a timely PCRA petition.” Commonwealth v. Berry, 877 A.2d 

479, 482 (Pa. Super. 2005) (en banc). “Although legality of sentence is 

always subject to review within the PCRA, claims must still first satisfy the 

PCRA’s time limits or one of the exceptions thereto.” Commonwealth v. 

Fowler, 930 A.2d 586, 592 (Pa. Super. 2007). 

A PCRA petition must be filed within one year of the date the judgment 

of sentence becomes final. 42 Pa.C.S.A. § 9545(b)(1). The three statutory 

exceptions to the one-year filing requirement are for newly discovered facts, 

interference by a government official, and a newly-recognized constitutional 

right. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). 

Here, White’s judgment of sentence was entered on July 21, 2008, and 

became final 30 days later, i.e., August 20, 2008, when the time for filing a 

direct appeal expired. See 42 Pa.C.S.A. § 9545(b)(3) (stating that a 

judgment of sentence becomes final at the conclusion of direct review, 

including discretionary review in this Court or the United States Supreme 

Court, or at the expiration of time for seeking such review). White’s present 

Petition, filed on April 8, 2014, is facially untimely. Our review further 

discloses that White’s Petition did not assert any statutory exceptions to the 
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PCRA’s timeliness requirement. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). 

Because White did not timely file his PCRA Petition, the PCRA court lacked 

jurisdiction over White’s Petition. We therefore affirm the Order of the PCRA 

court, which denied White’s request for relief.4

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/15/2016

 

4 See Commonwealth v. Clouser, 998 A.2d 656, 661, n.3 (Pa. Super. 

2010) (recognizing that “[i]t is well-settled that this Court may affirm on any 

basis”).