J-S16018-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ALBERT THEODORE GREELEY, III 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 775 WDA 2016

Appeal from the Order Entered April 26, 2016

In the Court of Common Pleas of Fayette County 

Criminal Division at No(s): CP-26-CR-0000133-2009

BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY RANSOM, J.: FILED MAY 16, 2017

Appellant, Albert Theodore Greeley, III, appeals from the order 

entered April 26, 2016, denying as untimely his serial petition for collateral 

relief filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-

9546. We affirm.

A prior Superior Court panel has described the procedural history and 

facts of this case as follows:

On November 18, 2010, the Fayette County Court of Common 

Pleas sentenced Appellant to 18-36 months’ imprisonment at 

docket number CP-26-CR-0001145-2010, with credit for time 

served on June 30, 2009. On April 7, 2011, at docket number 

CP-26-0001395-2010, the sentencing court imposed a sentence 

of 6 to 12 months’ imprisonment. That court awarded credit for 

time served from August 16, 2010 through November 18, 2010.

On October 6, 2011, a jury convicted Appellant of possession 

of a controlled substance with the intent to deliver (“PWID”), 

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* Retired Senior Judge assigned to the Superior Court.
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intentional possession of a controlled substance, and driving 

without a license at docket CP-26-CR-0000133-2009. On 

October 31, 2011, the trial court sentenced Appellant to 7 to 20 

years’ incarceration for PWID and imposed no further penalty for 

the remaining convictions. The trial court ordered that Appellant 

receive credit for the time he spent in custody on October 30, 

2008 and credit for time served from May 16, 2010 to August 

16, 2010. The trial court ordered that the sentence run 

concurrent to the sentences imposed by the Fayette County 

Court of Common Pleas at docket numbers CP-26-CR-0001395-

2010 and CP-26-CR-0001145-2010, and by the Allegheny 

County Court of Common Pleas at CP-02-CR-0004930-2009 and 

CP-02-CR-0015573-2009.

Appellant did not file a post-sentence motion or a direct 

appeal. On December 22, 2011, Appellant filed a pro se petition 

pursuant to the [PCRA]. Appointed counsel filed a petition for 

leave to appeal nunc pro tunc, which the trial court granted. 

Appellant filed an appeal, and this court affirmed the judgment 

of sentence on February 21, 2013. Commonwealth v. 

Greeley, No. 410 WDA 2012 (Pa.Super. filed Feb. 21, 2013) 

(unpublished memorandum).

On April 23, 2013, Appellant filed a pro se PCRA petition, 

which he amended on May 29, 2013. Counsel filed an amended 

petition on October 16, 2013. The trial court conducted a 

hearing. On April 24, 2014, it denied the petition. On May 21, 

2014, Appellant filed a notice of appeal and this Court affirmed 

on February 11, 2015. Commonwealth v. Greeley, No. 835 

WDA 2014 (Pa. Super. filed Feb 11, 2015) (unpublished 

memorandum)[, appeal denied 118 A.3d 1108 (Pa. 2015)]. On 

March 12, 2015, Appellant filed a petition for allowance of appeal 

to the Supreme Court of Pennsylvania. [His petition for allocator 

was denied on July 15, 2015].

On August 7, 2014, while his appeal of the order denying his 

first PCRA petition was pending in this Court, Appellant filed a 

motion seeking clarification of sentence. On August 21, 2014, 

the trial court denied this motion, finding clarification was not 

needed and it could not award credit for time spent while serving 

another sentence. Appellant filed a notice of appeal on 

September 22, 2014.

Commonwealth v. Greeley, 133 A.3d 67, 1544 WDA 2014, **1-3 (Pa. 

Super. filed Sept. 9, 2015) (unpublished memorandum), allocator denied
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Feb. 8, 2016. The Superior Court panel did not review the merits of 

Appellant’s petition. Because his first PCRA petition was pending in this 

Court, the trial court lacked jurisdiction to address Appellant’s motion for 

clarification. Id. at *6 (citing Pa.R.A.P. 1701(a) (trial court may no longer 

proceed further in a matter once appeal is taken)).

Appellant pro se filed a petition for writ of habeas corpus seeking 

clarification of his sentence on April 22, 2016.1 The court denied Appellant’s

petition as untimely on April 26, 2016. Thereafter, Appellant timely filed a 

notice of appeal on May 24, 2016. Appellant timely filed a court-ordered 

1925(b) statement on July 5, 2016. The court issued a responsive opinion.

On appeal, Appellant raises the following issues:

1. Was a writ of habeas ad subjiciendum the proper motion in 

light of the facts of the instant case?

2. Did the [PCRA] court improperly fail to clarify its 

sentencing order pursuant to 42 Pa.C.S. § 9760?

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1

 The record reflects that Appellant pro se filed a petition for writ of habeas 

corpus seeking clarification of his sentence in December 2015. Appellant’s 

December 2015 petition was improperly filed because he still had a petition 

pending on appeal and, further, because Appellant was still represented by 

counsel. See Commonwealth v. Jette, 23 A.3d 1032, 1036 (Pa. 2011) 

(discussing this Court’s long-standing policy that precludes hybrid 

representation) (citing Commonwealth v. Reid, 642 A.2d 453, 462 (Pa. 

1994) (noting that there is no constitutional right to hybrid representation 

and pro se briefs filed by appellants in criminal cases while represented will 

not be considered)). The record does not reveal a disposition for this 

petition. Subsequently, counsel was permitted to withdraw in April 2016. 
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Appellant's Br. at 1.2

Instantly, we note that Appellant’s claim implicates the legality of his 

sentence.3 The PCRA provides the sole action by which persons serving 

illegal sentences may obtain collateral relief and encompasses all other 

common law remedies, including habeas corpus. 42 Pa.C.S. § 9542; 

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

even though Appellant purports to seek habeas corpus relief, we address his 

petition within the PCRA framework.

Our standard of review regarding an order denying a petition under 

the PCRA is whether the determination of the PCRA court is supported by the 

evidence of record and is free of legal error. See Commonwealth v. 

Ragan, 923 A.2d 1169, 1170 (Pa. 2007). 

We begin by addressing the timeliness of Appellant’s petition, as the 

PCRA time limitations implicate our jurisdiction and may not be altered or 

disregarded in order to address the merits of his claims. See 

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007). Under the 

PCRA, any petition for relief, including second and subsequent petitions, 

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2 Appellant’s pro se brief lacks proper pagination. See Pa.R.A.P. 2173.

3

In his petition, Appellant contends that the court erred in failing to credit 

his sentence for time served for a period of time before he was sentenced in 

this case. The sentencing court ordered this sentence to run concurrently 

with those he was already serving. Relying on 42 Pa.C.S. § 9737, Appellant 

claims that he should be credited with time served on other sentences 

before this one was imposed. 
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must be filed within one year of the date on which the judgment of sentence 

becomes final. Id. There are three exceptions: 

(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 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 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 these 

exceptions “shall be filed within 60 days of the date the claim could have

been presented.” 42 Pa.C.S. § 9545(b)(2). 

Appellant’s petition is patently untimely.4 In order to reach the merits 

of his issues, he must plead and prove one of the exceptions to the time bar. 

Commonwealth v. Jackson, 30 A.3d 516, 522–23 (Pa. Super. 2011). 

Appellant has failed to do so. Accordingly, the PCRA court properly 

dismissed Appellant’s petition as untimely. 

Order affirmed.

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4 Appellant’s judgment of sentence became final on November 30, 2011, at 

the expiration of the thirty-day period for seeking direct review. See 42 

Pa.C.S. § 9545(b)(3). The instant PCRA petition was filed on April 22, 2016, 

more than three years after the judgment became final. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/16/2017