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COMMONWEALTH OF PENN SYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. DEVIN ROUSE, Appellant No. 653 EDA 2017 Appeal from the PCRA Court Order Entered January 13 , 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

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BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J. OPINION BY BENDER, P.J.E.: FILED JUNE 0 8 , 2018 Appellant, Devi n Rouse, appeals from the order denying his petition for a writ of habeas corpus ( “ H abeas P etition”) , which the lower court treated as an untimely petition filed pursuant the Post

- Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541

- 9546. After careful review, we affirm

. The facts underlying A ppellant’s 2005 conviction for second

- degree murder , robbery, carrying a firearm without a license, and possessing an instrument of crime a re not germane to this appeal. After Appellant filed a dir ect appeal, this Court affirmed his judgment of sentence on April 13, 2006 , and our Supreme Court subsequently denied his petition for allowance of appeal from our decision. Commonwealth v. Rouse , 902 A.2d 981 (Pa. Super. 2006) (unpublished memorandum ) , a ppeal denied , 909 A.2d 304 (Pa. 2006).J

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Appellant filed his first PCRA petition on October 10, 2007, and appointed counsel filed an amended petition on his behalf on September 26, 2008. The PCRA court dismissed that petition without a hearing on March 5, 2009. This Court vacated that order, and remanded for an evidentiary hearing. Commonwealth v. Rouse , 38 A.3d 925 (Pa. Super. 2011) (unpublished memorandum). That hearing occurred on January 27, 2014. Subsequently, the PCRA court granted Appellant’s P CRA petition, ordering a
new tr ial. The Commonwealth appealed. On January 12, 2016, th is Court reversed the PCRA court’s order, and our Supreme Court denied Appellant’s petition for allowance of appeal from that decision. Commonwealth v.
Rouse , 136 A.3d 1029 (Pa. Super. 2016) (unpublished memorandum) , appeal denied , 169 A.3d 30 (Pa. 2017). The instant matter began when Appe llant filed his pro se H abeas P etition on September 13 , 2016 . Therein, he claimed that the sentencing statute for second

- degree murder, 18 Pa.C.S. § 1102(b) , is void for vaguene ss, in violation of his due process rights under the Constitution of the United States and/ or of this Commonwealth

. 1 Appellant also specifically averred in his

_________________ __________ ______ ____ _______ 1 Section 1102(b) mandates that “a person who has been convicted of murder of the second degree ... shall be sentenced to a term of life imprisonment.” Appellant claims that Section 1102(b) is void for vagueness because it fails to give adequate notice that a sentence of life imprisonment is, in fact, life imprisonment without the possibility of parole

. See Appellant’s Habeas Petition , 9/13/16, at 3 (u nnumbered pages); but see Castle v. Commonwealth, Pennsylvania Bd. of Probation and Parole , 554 A.2d 625, 628 (Pa. Cmwlth. 1989) (holding that Section 1102(b) imposes aJ

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Habe as Petition that his claim was not cognizable under the PCRA. Habeas
Petition at 1

- 2. The trial court, concluding that Appellant’s claim asserted the illegality of his sentence, treated his Habeas Petition as a PCRA petition subject to the PCRA’s timeline ss provisions. Trial Court Opinion (“T CO”) , 5/5/17, at 3

- 4. On that basis, the PCRA court determined that Appellant’s petition was untimely, and that none of the PCRA’s timeliness exceptions applied. As such, on November 10, 2016, the court issued notice, pursuant to Pa.R.Crim.P. 907, that it intended to dismiss Appellant’s Habeas Petition without a hearing. Appellant did not file a response. On January 13, 2017, the trial court entered an order dismissing Ap pellant’s Habeas Petition. Appellant filed a timely notice of appeal. Appellant did not file , and the PCRA court did not ord er him to file, a Pa.R.A.P. 1925(b) statement. The trial court issued its Rule 1925(a) opinion on May 5, 2017. Appellant now presents the following question for our review: Did the lower court err in construing Appellant's state habeas corpus petition as a 2 nd PCRA petition (and thereby time

- barring it), when the PCRA statutes do not clearly state whether the issue presented is cognizable under the PCRA; whereas the writ of state habeas corpus may be sought to inquire into the cause of detention "under any pretense whatsoever [?"] Appellant’s Brief at 5.

_________________ __________ ______ ____ _______ minimum term of incarceration of life imprisonment , thereby prohibiting the Board of Probation and Parole from considering parole for individuals convicted of second

- degree murd er). Appellant acknowledges the Castle decision, but claims it was wrongfully decided.J

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This Court’s standard of review regarding an order denying a petition unde r the PCRA is whether the determination of the PCRA court is supported by the evidence of record and is free of legal error. Commonwealth v. Ragan , 923 A.2d 1169, 1170 (Pa. 2007). We must begin by address ing the timeliness of Appellant’ s Habeas Petition, which was construed by the lower court as a PCRA petition, because the PCRA time limitations implicate our jurisdiction and may not be altered or disregarded in order to address the merits of a petition. Commonwealth v. Bennett , 930 A.2d 1264, 1267 (Pa. 2007). Under the PCRA, any petition for post

- conviction relief, including a second or subsequent one, must be filed within one year of the date the judgment of sentence becomes final, unless one of the following exceptions set forth in 42 Pa.C.S. § 9545(b )(1)(i)

- (iii) applies: (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 Sta tes; (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 th e United States or the Supreme Court of Pennsylvania after the timeJ

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- period provided in this section and has been held by that court to apply retroactively. 42 Pa.C.S. § 9545(b)(1)(i)

- (iii). Any petition attempting to invoke one of these exceptions “shall be filed within 60 days of the date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2). Instantly, Appellant makes no argument that his Habeas Petition is timely under Section 9545(b)(1)

. Instead, he claims that the PCRA court erred by constr uing his Habeas Petition as a PCRA petition. Specifically, he asserts that his void

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- vagueness claim, directed at the sentencing provision for second

- degree murder applied in his case, is not cognizable under the PCRA statute and, therefore, that the s tatute’s timeliness provisions do not apply to his Habeas Petition. For the following reasons, we agree . Section 9542 provides, in pertinent part, that: 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 w hen this subchapter takes effect, including habeas corpus.... 42 Pa.C.S. § 9542 (emphasis added). Appellant correctly notes that this provision exists in tension with the eligibility

- for

- relief provisions of the PCRA statute. Section 9543 provides, in pert inent part, as follows: (a) General rule. -- To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following: (1) That the petitioner has been convicted of a crime under the laws of this Commonwealth and is at the time relief is granted:J

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- (i) currently serving a sentence of imprisonment, probation or parole for the crime; (ii) awaiting execution of a sentence of death for the crime; or (iii) serving a sentence which must expire before the person may commence serving the disputed sentence. (2) That the conviction or sentence resulted from one or more of the following: (i) 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. (ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so unde rmined the truth

- determining process that no reliable adjudication of guilt or innocence could have taken place. (iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent. (iv) The improper obstruction by government officials of the petitioner's right of appeal where a meritorious appealable issue existed and was properly preserved in the trial court.

... (vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced. (vii) The imposition of a sentence greater than the lawful maximum. (viii) A proceeding in a tribunal without jurisdiction. 42 Pa.C.S. § 9543(a) (emphasis added)

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There is no dispute that the Appellant’s Habeas Petition satisfies Section 9543(a)(1), as Appellant is currently serving a sentence of imprisonment.
H owever , the only provisions of Section 9543(a)(2) that might arguably pertain to sentencing claims which, like the one presented by Appellant in his Habeas Petition , do not also pertain to matters of underlying guilt or innocence, are Sections 9543(a)(2)(vii) and (viii). As the jurisdiction of trial / sen tencing court is not in question, that leaves only Section 9543(a)(2)(vii), which permits relief under the PCRA statute for claims involving the “imposition of a sentence greater than the lawful maximum.” 42 Pa.C.S. § 9543(a)(2)(vii). Appellant asserts t hat the void

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- vagueness claim set forth in the Habeas Petition (essentially a due process claim), does not posit that his sentence exceeds the lawful maximum for second

- degree murder and, therefore, is not a claim that is eligible for relief under the P CRA
statute. The trial court does not indicate in its opinion why it construed Appellant’s void

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- vagueness argument as an illegal

- sentencing claim that is cognizable under the PCRA. Instead, the court bald l y states, without citing any pertinent a uthority and without offering any analysis, that “Appellant’s issue is cognizable under the PCRA.” T CO at 3

- 4. Likewise, the Commonwealth argues that: “Essentially, [Appellant] claims that he received a sentence greater than the lawful maximum; an issue which is squarely cognizable under the PCRA .” Commonwealth’s Brief at 5. However, the Commonwealth also provides no support for this assertion in its b rief.J

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Appellant does not explicitly claim that his senten ce exceeds the lawful maximum, nor is his cla im easily construed as such. Instead, he contends that

— in crafting the sentencing s tatute for second

- degree murder

— the legislature failed to give adequate or reasonable notice of the penalty for that offense, especially in light of other sentencing provis ions, such as the minimum/maximum rule. 2 If anything, Appellant is challenging the minimum sentence imposed (that is, that no minimum sentence was imposed) ; he does not claim that his sentence exceeded the lawful maximum. Nor does Appellant’s claim fall within the well

- recognized categories of illegal sentencing issues that are cognizable under the PCRA under applicable case law. The phrase ‘illegal sentence’ is a term of art in Pennsylvania Courts that is applied to three narrow categories of cases. Those categories are: “(1) claims that the sentence fell ‘outside of the legal parameters prescribed by the applicable statute’; (2) claims involving merger/double jeopardy; and (3) claims implicating the rule in Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).” Commonwealth v. Munday , 78 A.3d 661, 664 (Pa. Super. 2013) (citations omitted). The latter category includes claims that arise under the progeny of Apprendi , including Alleyne v. United States , 570 U.S. 99 (2013). Ad ditionally, “[t]his Court has also held that claims pertaining to the Eighth Amendment's Cruel and Unusual Punishment Clause also pertain to the

_________________ __________ ______ ____ _______ 2 When imposing a sentence of “total confinement,” 42 Pa.C.S. § 9756 (a), “[t]he court shall impose a minimum sentence of confinement which shall not exceed one

- half o f the maximum sentence imposed[,]” 42 Pa.C.S. § 9756(b)(1) (emphasis added).J

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legality of the sentence. ” Commonwealth v. Lawrence , 99 A.3d 116, 122 (Pa. Super. 2014). None of these catego ries apply to Appellant’s issue , which is grounded in due process concerns.
Lawrence is instructive here . In that case, the appellant challenged the constitutionality of the sentencing provision for juveniles convicted of murder, 18 Pa.C.S. § 1102.1 , ar guing, inter alia , that the statute violated equal protection and ex post facto principles. Lawrence , 99 A.3d at 118. In order to escape waiver concerns, the appellant argued that his claims implicated the legality of his sentence. However, t he Lawrence Court determined those issues were not illegal

- sentencing claims, despite the fact that they targeted a sentencing statute. The Court reasoned that :

In our view, there is a meaningful difference between the remaining two arguments [the a] ppellant raises in this case and issues pertaining to the Eighth Amendment, merger, Apprendi and Alleyne

. The Eighth Amendment, merger, Apprendi , and even Alleyne all directly circumscribe the trial court's sentencing p rocess and sentencing authority. Stated another way, the goal of the Cruel and Unusual Punishment Clause, the merger doctrine, Apprendi and Alleyne is to protect defendants from the imposition of punishments by trial judges that are unconstitutional, imposed through unconstitutional proce sses, or are a “greater punishment than the legislature intended.” [ Commonwealth v. ] Andrews , [768 A.2d 309, 313 (Pa. 2001)]

. However, as is relevant in this case, the Equal Protection Clause and the Ex Post Facto Clauses serve to restrict legislative powe r. [ T he a] ppellant does not argue that the trial court did not follow Section 1102.1's mandate or text in carrying out its t raditional sentencing function. Nor does Appellant argue that any part of the sentencin g process was unconstitutional. Rather, [th e a] ppellant argues that the General Assembly passed a statute that, in his view, unconstitutionally treats some juveniles differently than others, and retroactively changes the punishment for the crime after it was committed. These arguments do notJ

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addre ss the same concerns as the Eighth Amendment, the merger doctrine, Apprendi and Alleyne

. Because [the a] ppellant's Equal Protection and Ex Post Facto Clause arguments directly seek protection from legislatures, not judges, we hold that these arguments fal l into the category of “a sentencing issue that presents a legal question [rather than a claim th at the] sentence [ is] illegal.” Commonwealth v. Cartrette , 83 A.3d 1030, 103 6 n. 5 (Pa. Super. 2013) ( en banc ) (citation omitted). Lawrence , 99 A.3d at 123

– 24 (some internal citations omitted, emphasis in original). Likewise, here, Appellant’s void

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- vagueness claim is a sentencing issue that presents a legal question that is qualitatively distinct from the categories of illegal sentences recognized by our c ourts. It does not challenge the sentencing court’s authority or actions insomuch as it challenges the legislature ’s ostensible failure to provide adequate notice of the penalty for second

- degree murder. However, Appellant’s void

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- vagueness claim, j ust like all claims ( but for the three categories of illegal

- sentencing claims , see Munday , supra ), is subject to waiver. “ Habeas corpus is an extraordinary remedy and is available after other remedies have been exhausted or ineffectual or nonexistent. It will not issue if another remedy exists and is available.” Commonwealth ex rel. Johnson v. Bookbinder , 247 A.2d 644, 646 (Pa. Super. 1 968). As Appellant’s claim could have been raised at his sentencing hearing , or in a post

- sentence motion, he failed to exhaust all available remedies before resorting to habeas corpus . Accordingly, we deem his claim waived and, therefore, affirm the tri al court’s order dismissing his petition on that basis.J

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“To the extent our legal reasoning differs from the trial court’s, we note that as an appellate court, we may affirm on any legal basis supported by the certified record.” Commonwealth v. Williams , 125 A.3d 425, 433 n.8 (Pa. Super. 2015). Thus, in sum, because Appellant’s claim does not challenge the imposition of a sentence in excess of the lawful maximum, it does not fall under the purview of Section 9543(a) (2)(vii). And , to the extent that Secti on 9543(a) (2)(vii) encompasses all illegal

- sentencing issues , Appellant’s claim does not implicate any category of illegal sentences previously recognized by Pennsylvania Court s . Moreover, because Appellant’s constitutional challenge to Section 1102(b) do es not implicate his guilt or innocence for the underlying offense, his void

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- vagueness claim cannot arise under the typical provision used to address constitutional errors, Section 9543(a) (2)( i). Nevertheless, because Appellant could have challenged t he constitutionality of Section 1102(b) at sentencing or in a post

- sentence motion, he has failed to exhaust all available remedies before seeking relief under habeas corpus . Thus, Appellant effectively waived the issue raised in the Habeas petition. Order affirmed

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/8/18