J-S58027- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. TERRENCE BRADLY, Appellant No. 285 WDA 2014

Appeal from the PCRA Order Entered February 13 , 2014 In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP

- 02

- CR -0006702-1989 CP

- 02

- CR -0006884-1989
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J. * MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 05, 2014 Appellant, Terrence Bradly, appeals pro se from the order dismissing his petition for a writ of habeas corpus ad subjiciendum . After careful review, we affirm. Appellant was charged at the above-listed criminal inf ormations in 1989. Appellant proceeded to a jury trial on Februa ry 13, 1990. On February 15, 1990, the jury found Appellant guilty of first degree murder and robbery. 1 On February 5, 1991, Appellant was sentenced to a mandatory term of life imprisonment without the possi bility of parole. After

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 The facts underlying Appellant’s conviction are not re levant to this appeal.J-S58027- 14

- 2 -

Appellant filed a direct appeal, this Court affirmed his judgment of sentence on March 3, 1992. Commonwealth v. Bradly , 610 A.2d 62 (Pa. Super. 1992) (unpublished memorandum). Appellant filed his first Post Conviction Relief Act 2 (PCRA) petition on August 23, 2012. Counsel was appointed; however, ap pointed counsel ultimately filed a no-merit letter and a motion to withdraw pursuant to Commonwealth v. Turner , 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley , 550 A.2d 213 (Pa. Super. 1988) ( en banc ). By order dated May 13, 2013, the PCRA court granted coun sel’s motion to withdraw and issued notice of its intent to dismiss Appel lant’s PCRA petition pursuant to Pa.R.Crim.P. 907. Appellant filed object ions to that order on May 29, 2013. The court dismissed his PCRA petition on June 17, 2013. Although Appellant appealed the dismissal of his PCRA p etition, this Court ultimately dismissed his appeal after he failed to fil e a brief. See Superior Court Order, 11/12/13, at 1. The instant matter arose when Appellant filed a peti tion for a writ of habeas corpus ad subjiciendum (Habeas Petition) with the Court of Common Pleas of Allegheny County 3 on November 26, 2013. Therein, Appellant claimed that his sentence was invalid because it was imposed pursuant to a

____________________________________________ 2 42 Pa.C.S. § 9541 et seq

.
3 Because this was the same court in which Appellant’s firs t PCRA petition was filed, we refer to it hereinafter as the “PCRA cou rt.”J-S58027- 14

- 3 -

subsequently repealed statute. The PCRA court dismissed t he Habeas Petition on January 24, 2014, and Appellant filed a timely appeal from that order. The PCRA court did not order Appellant to f ile a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The PCR A court issued a Rule 1925(a) opinion on May 16, 2014. Appellant now presents the following question for our review: Did the trial court abuse its discretion in denying Appe llant’s [Petition for a] Writ of Habeas Corpus Ad Subjiciendum [in] violat[ion of] his substantive due process rights[,] wher e Appellant has been unlawfully committed to serve life imprisonment on a mandated repealed statute? Appellant’s Brief at 3 (unnecessary capitalization omitt ed, italics added). The PCRA court denied Appellant’s Habeas Petition “because the Post Conviction Relief Act is the sole means by which a crimi nal defendant may raise a collateral challenge to his conviction.” PCRA Co urt Opinion, 5/16/14, at 2 (citing Commonwealth v. Mercado , 826 A.2d 897 (Pa. Super. 2003)). The PCRA court did not offer any additional explanat ion for its ruling. In his brief, Appellant asserts that his claim is properly rais ed in a petition for a writ of habeas corpus ad subjiciendum . Appellant’s Brief at 9 (citin g Commonwealth v. Bangs , 393 A.2d 720 (Pa. Super. 1978)). Both Appellant and the PCRA court have failed to address th is claim in the appropriate fashion. As the Commonwealth properly notes, “[A]ppellant’s inst ant [Habeas Petition] ... must be treated as a PCRA petition[.]” C ommonwealth’s Brief at 12. The claim raised in Appellant’s Habeas Petition w as either cognizableJ-S58027- 14

- 4 -

under the PCRA or it was not. If it was, then the PC RA court should have treated the Habeas Petition as a PCRA petition. See Commonwealth v.
Deaner , 779 A.2d 578, 580 (Pa. Super. 2001) (“It is well set tled that any collateral petition raising issues with respect to remedi es offered under the PCRA will be considered a PCRA petition.”). If Appell ant’s claim was not cognizable under the PCRA, then the trial court should have addressed the petition as properly raised under our habeas corpus jurisprudence. In both Commonwealth v. West , 938 A.2d 1034 (Pa. 2007), and Commonwealth v. Judge , 916 A.2d 511 (Pa. 2007), our Supreme Court held t hat claims that fall outside the sphere of the PCRA can be advance d via a petition for a writ of habeas corpus

. Appellant essentially argued in his Habeas Petition th at his sentence of life imprisonment lacked a valid statutory basis at the time it was imposed, a claim that he continues to make in this appeal. Sectio n 1102 of Title 18 currently provides, in pertinent part, as follows: Except as provided under section 1102.1 (relating to sen tence of persons under the age of 18 for murder, murder of an unborn child and murder of a law enforcement officer), a per son who has been convicted of a murder of the first degree or o f murder of a law enforcement officer of the first degree shal l be sentenced to death or to a term of life imprisonment in accordance with 42 Pa.C.S. § 9711 (relating to sentenci ng procedure for murder of the first degree). 18 Pa.C.S. § 1102(a)(1). Thus, when a defendant is convicted of first degree mu rder, section 1102 establishes two possible sentences: life imprisonment o r death. TheJ-S58027- 14

- 5 -

st atute also dictates that the procedure for deciding betw een those penalties is governed 42 Pa.C.S. § 9711, as denoted by the ital icized portion of section 1102(a) above. Prior to its amendment in 1995 , section 1102(a) referenced a prior version of 18 Pa.C.S. § 1311(d) ra ther than section 9711 of Title 42. However, that prior version of section 1 311(d) was declared unconstitutional by our Supreme Court in 1977. Commonwealth v. Moody , 382 A.2d 442, 443 (Pa. 1977). As we noted in Commonwealth v. Hardcastle , 546 A.2d 1101 (Pa. 1988), Moody was superseded by statute when 42 Pa.C.S. § 9711 was amended to replace 18 Pa.C .S. § 1311(d) as the applicable procedure for determining the appropr iate sentence for first degree murder in 1980. Appellant was sentenced in 1991 pursuant to the then i n-effect version of 18 Pa.C.S. § 1102. At that time, although section 9711’s governance of sentencing procedure for first degree murder had been i n effect for more than a decade, section 1102(a)(1) still referenced the v ersion of section 1311(d) which had been deemed unconstitutional in Moody in 1977. Thus, Appellant claims, his substantive rights were violated when he was sentenced under section 1102, when the sentencing procedur e set forth in that st atute at the time of sentencing “no longer existed unde r the laws of this Commonwealth.” Appellant’s Brief at 7. This claim likely implicates the legality of Appellant’ s sentence. See
In re M.W. , 725 A.2d 729, 731 (Pa. 1999) (holding that, when a sentencing issue “centers upon a court's statutory authority” to impose a sentence,J-S58027- 14

- 6 -

rather than the “court's exercise of discretion in fashioni ng” the sentence, the issue raised implicates the legality of the sentence imposed). The PCRA specifically includes challenges to an illegal sentence w ithin its stated scope. 42 Pa.C.S. § 9542 (“This subchapter provides for an actio n by which persons convicted of crimes they did not commit and persons servin g illegal sentences may obtain collateral relief.”). Alternati vely (or additionally), Appellant’s claim could be said to implicate the jurisd iction of the trial court to sentence Appellant under the version of 18 Pa.C.S. § 1102(a)(1) in effect in 1991. See 42 Pa.C.S. § 9543(a)(2)(viii) (stating that one is e ligible for relief under the PCRA where the sentence resulted from “[a] proceeding in a tribunal without jurisdiction”). Because Appellant’s claim implicates the legality of hi s sentence, or the jurisdiction of the court that imposed it, it is cognizab le under the PCRA. Accordingly, the PCRA court should have treated Appella nt’s Habeas Petition as a PCRA petition. Deaner , supra . Because the PCRA court did not treat the Habeas Petition as a PCRA petition, it did not gi ve Appellant notice of intent to dismiss or afford him the opportunity to ame nd the petition. See Pa.R.Crim.P. 907(1); Pa.R.Crim.P. 905(B). In this r egard, the PCRA court clearly erred. Nevertheless, Appellant has not challenged the PCRA cour t’s dismissal of his petition on these grounds. The failure to chall enge the absence of a Rule 907 notice results in waiver of that issue. Commonwealth v. Taylor , 65 A.3d 462, 468 (Pa. Super. 2013) (citing Commonwealth v. Boyd , 923J-S58027- 14

- 7 -

A.2d 513, 514 n.1 (Pa. Super. 2007)). Furthermore, “even if the issue is raised, where the petition is untimely, it does not au tomatically warrant reversal.” Id. (citing Commonwealth v. Pursell , 749 A.2d 911, 917 n.7 (Pa. 2000)). Having established that the PCRA court should have trea ted Appellant’s Habeas Petition as a PCRA peti tion, we must address the petition’s timeliness, because the PCRA time limitation s 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) (stating PCRA time limitations implicate o ur jurisdiction and may not be altered or disregarded to address the merits of the petition); Commonwealth v. Johnson , 803 A.2d 1291, 1294 (Pa. Super. 2002) (holding the Superior Court lacks jurisdiction to reach merits of an appeal from an untimely PCRA petition). Under the PCRA, any petition for post-conviction relie f, 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 exce ptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. That se ction states, in relevant part: (b) Time for filing petition.-- (1) Any petition under this subchapter, including a seco nd 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:J-S58027- 14

- 8 - (i) the failure to raise the claim previously was the r esult of interference by government officials with the presentation of the claim in violation of the Constitu tion or laws of this Commonwealth or the Constitution or laws o f 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 per iod 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 att empting to invoke one of these exceptions “shall be filed within 60 days of the d ate the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2). None of these exceptions to the PCRA’s time limitation s could possibly apply to App ellant’s claim. Sections 9545(b)(1)(i) and (iii) cle arly have no application given the nature of Appellant’s argument. Section 9545(b)(1)(ii) also cannot be applied, because even if the defect that existed in the 1991 version of 18 Pa.C.S. § 1102 called into question the legality of Appellant’s sentence or the jurisdiction of the sentencing court, tha t defect was apparent in the text of the statute at the time of A ppellant’s sentencing. There is no plausible argument why Appellant could not have discovered that defect through the exercise of due diligence in the yea r after his sentence became final. There is certainly no plausible reason wh y it would take more than 20 years to discover that defect.J-S58027- 14

- 9 -

We conclude, therefore, that even if the PCRA court h ad not erred by failing to treat Appellant’s Habeas Petition as a PCRA petition, Appellant would have been unable to satisfy the PCRA’s timeline ss requirements. Accordingly, the PCRA court lacked jurisdiction to entert ain his claim, as do

we. Order affirmed

. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/5/2014