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

v.

RICHARD TORO, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1874 EDA 2017 Appeal from the PCRA Order May 12, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0123011

- 1992

BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J. JUDGMENT ORDER BY DUBOW, J.: FILED JUNE 1 5 , 2018 Richard Toro (“Appellant”) appeals pro se from the dismissal of the Petition for a Writ of Habeas Corpus , which the court properly considered a Petition filed pursuant to the Post

- Conviction Relief Act, 42 Pa.C.S. §9541

- 9546. Because Appellant is no longer serving his sentence, he is not eligible for PCRA relief. We , thus , affirm the denial of relief

. On June 26, 1992, a fter a bench trial, the trial court sentenced Appellant to a term of 31⁄2 to 7 years’ incarceration for possession of a controlled substance with intent to deliver. Appellant did not appeal. On July 27, 2010, Appellant filed the instant pro se Petition for a writ of habeas corpus , alleging ineffective assistance of trial counsel and an unconstitutional conviction and seeking a vacatur of his 1992 conviction . He filed an amended Petition on December 4, 2015. The court appointed counselJ

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on January 20, 2017. 1 Counsel subsequently filed a “no merit” letter pursuant
to Commonwealth v. Finley , 550 A.2d 213 (Pa. Super . 1988) ( en banc ) , and a Motion to Withdraw from R epresentation

. On April 12, 2017, the PCRA court issued a Pa.R.Crim.P. 907 N otice of I ntent to D ismiss W ithout a H earing , noting, among other things, that Appellant has served his sentence ; the Petition, cognizable under the PCRA, is untimely ; and Appellant failed to invoke an exception to the timeliness provisions of the PCRA

. On May 12, 2017, the court granted counsel’s motion to withdraw and dismissed Appellant’s Petition. Appellant filed a timely No tice of Appeal pro se
. On June 27, 2017, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b) Statement. Appellant did not comply. 2 The PCRA court filed a Rule 1925(a) Opinion. In his “Brief,” which fails to comport with the briefing requirements provided in our rules of appellate procedure, 3 Appellant asserts ineffective assistance claims and challenges the voluntariness of his waiver of his right to a jury trial. This Court has explained:

_________________ __________ ______ ____ _______
1 The record contains no explanation for the lack of trial court action from the filing of the 2010 Petition to the appointment of counsel in 2017.

2 Appellant’s failure to file a Pa.R.A.P. 1925(b) Statement as ordered would result in the waiver of his iss ues on appeal if Appellant were eligible for PCRA relief. Commonwealth v. Castillo , 888 A.2d 775, 780 (Pa. 2005).

3 See Pa.R.A.P. 2111, 2114, 2115, 2116, 2217, 2118, and 2119 (providing details of required contents of briefs). These defects are substan tial and alone provide a reason to dismiss thi s appeal, as provided in Pa.R.A.P. 2101.J

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I t is well

- settled that the PCRA is intended to be the sole means of achieving post

- conviction relief. 42 Pa.C.S. § 9542; Commonwealth v. Haun , [ ] 32 A.3d 697 ( [Pa.]2011). Unless the PCRA could not provide for a potential remedy, the PCRA statute subsumes the writ of habeas corpus

. [ Commonwealth v.] Fahy , [737 A.2d 214,] 223

– 224 [Pa.1999]; Commonwealth v. Chester , [ ] 733 A.2d 1242 ( [Pa.]1999 ). Issues that are cognizable under the PCRA must be raised in a timely PCRA petition and cannot be raised in a ha beas corpus petition. See Commonwealth v. Peterkin , 722 A.2d 638 ( [Pa.] 1998); see also Commonwealth v. Deaner , 779 A.2d 578 (Pa. Super. 2001) (a collateral petition that raises an issue that the PCRA statute could remedy is to be considered a PCRA petition). Phrased differently, a defendant cannot escape the PCRA time

- bar by titling his petition or motion as a writ of habeas corpus

. Commonwealth v. Taylor , 65 A.3d 462, 465

– 66 (Pa. Super. 2013)

. Appellant’ s claims challenging the effectiveness o f counsel’s assistance and the constitutionality of his jury waiver are cognizable under the PCRA

. 42 Pa.C.S. § 9543(a)(2). I n order to be eligible for PCRA relief, however, a petitioner must be “currently serving a sentence of imprisonment, probation[,] or parole for the crime[.]” 42 Pa.C.S. § 9543 (a)(1)(i). See also
C ommonwealth v. Ahlborn , 699 A.2d 718, 720 (Pa. 1997 ) (noting that “ the denial of relief for a petition er who has finished serving his sentence is required by the plain language o f the statute

. ”). Here, Appellant acknowledges that his sentence of 31⁄2 to 7 years’ incarceration, imposed 26 years ago, has been “fully served.” See “Writ of Habeas Corpus ,” filed July 23, 2010, at 1

- 2. Indeed, his sentence expired in 1999, more than 11 years before he filed his P etition seeking PCRA relief.J

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Accordingly, as the trial court correctly observed, Appellant is not eligible for PCRA relief. Thus, t he PCRA court properly dismissed Appellant’s
Petition.
Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/15/18