J. S28009/14 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA : 

: 

IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

v. : 

: 

JOSEPH BESTMAN, : No. 3399 EDA 2012 

: 

 Appellant : 

Appeal from the PCRA Order, November 7, 2012, 

in the Court of Common Pleas of Delaware County 

Criminal Division at No. CP-23-CR-0002168-2009 

COMMONWEALTH OF PENNSYLVANIA : 

: 

IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

v. : 

: 

JOSEPH BESTMAN, : No. 3400 EDA 2012 

: 

 Appellant : 

Appeal from the PCRA Order, November 7, 2012, 

in the Court of Common Pleas of Delaware County 

Criminal Division at No. CP-23-CR-0001313-2009 

BEFORE: FORD ELLIOTT, P.J.E., LAZARUS AND PLATT,* JJ. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 12, 2014 

 Joseph Bestman appeals from the order of November 7, 2012, denying 

his PCRA1

 petition as untimely filed. We affirm. 

 

* Retired Senior Judge assigned to the Superior Court. 

1

 Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. 
J. S28009/14 

- 2 - 

 On July 16, 2009, appellant entered a negotiated guilty plea to one 

count each of retail theft, obstruction of a government function, and 

resisting arrest. Appellant received a sentence of 3 to 23 months’ 

incarceration for resisting arrest, with credit for time served and immediate 

parole. (Notes of testimony, 7/16/09 at 11.) On the charge of obstruction 

of a government function, appellant received a sentence of one year of 

probation to run concurrently with the sentence on resisting arrest. (Id. at 

12.) On retail theft, appellant received a sentence of one year of probation 

to run consecutively to the sentence on resisting arrest; therefore, 

appellant’s aggregate sentence was 3 to 23 months’ incarceration, followed 

by one year of probation. (Id.) 

 Appellant did not file post-sentence motions or take a direct appeal. 

On September 17, 2010, appellant filed a “motion to re-open sentence 

base [sic] on claim of ineffective assistance of counsel,” alleging that trial 

counsel failed to advise appellant, a Liberian national, of the immigration 

consequences of his plea. Appellant’s motion was properly treated as a 

PCRA petition and counsel was appointed. An amended petition was filed on 

appellant’s behalf, adding a claim that appellant was actually born on 

January 4, 1992, and was a juvenile at the time of his guilty plea. 

Therefore, appellant argued that the court lacked jurisdiction to accept his 

plea. 
J. S28009/14 

- 3 - 

 A hearing was held on August 11, 2011, at which both trial counsel, 

Jonathan Consadene, Esq., and appellant testified. Appellant’s petition was 

denied on November 7, 2012.2

 This timely appeal followed. Appellant has 

complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the PCRA court has 

filed a Rule 1925(a) opinion. 

Appellant’s petition was filed after the effective date 

of the 1995 amendments to the PCRA; therefore, the 

jurisdictional time limits established by those 

amendments govern this case. Commonwealth v. 

Fahy, 558 Pa. 313, 737 A.2d 214, 217-18 (1999). A 

PCRA petition, including a second or subsequent one, 

must be filed within one year of the date the 

petitioner’s judgment of sentence became final, 

unless he pleads and proves one of the three 

exceptions outlined in 42 Pa.C.S. 

§ 9545(b)(1).[Footnote 2] Commonwealth v. 

Howard, 567 Pa. 481, 788 A.2d 351, 354 (2002). A 

judgment becomes final at the conclusion of direct 

review by this Court or the United States Supreme 

Court, or at the expiration of the time for seeking 

such review. 42 Pa.C.S. § 9545(b)(3); Howard, at 

353. The PCRA’s timeliness requirements are 

jurisdictional; therefore, a court may not address the 

merits of the issues raised if the petition was not 

timely filed. Commonwealth v. Abu–Jamal, 574 

Pa. 724, 833 A.2d 719, 723–24 (2003); 

Commonwealth v. Murray, 562 Pa. 1, 753 A.2d 

201, 203 (2000). The timeliness requirements apply 

to all PCRA petitions, regardless of the nature of the

individual claims raised therein. Murray, at 203. 

The PCRA squarely places upon the petitioner the 

burden of proving an untimely petition fits within one 

of the three exceptions. See Commonwealth v. 

Bronshtein, 561 Pa. 611, 752 A.2d 868, 871 (2002) 

 

2

 The hearing was held before the Honorable Charles C. Keeler, who also 

took appellant’s guilty plea. However, Judge Keeler subsequently retired 

from the bench and the matter was reassigned to the Honorable Gregory M. 

Mallon. 
J. S28009/14 

- 4 - 

(“[I]t is the petitioner’s burden to plead and prove 

that one of the exceptions applies [.]”). The PCRA 

further requires a petition invoking one of these 

exceptions to “be filed within 60 days of the date the

claim could have been presented.” 42 Pa.C.S. 

§ 9545(b)(2). On appeal from the denial of PCRA 

relief, this Court decides “whether the findings of the 

PCRA court are supported by the record and free of 

legal error.” Abu–Jamal, at 723. 

[Footnote 2] These exceptions are: 

“(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). 

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012). 

Instantly, appellant’s judgment of sentence became final on Monday, 

August 17, 2009, when the time for filing a direct appeal expired.3

 

Therefore, appellant had until August 17, 2010 to file a timely PCRA petition. 

Appellant’s petition, filed September 17, 2010, is untimely.

 

3

 The actual 30th day fell on Saturday, August 15, 2009; therefore, appellant 

had until the following Monday to file an appeal notice. 1 Pa.C.S.A. § 1908 

(excluding weekends and holidays from the computation of time). 
J. S28009/14 

- 5 - 

 Initially, we note that appellant was sentenced on July 16, 2009, to 

3 to 23 months’ incarceration followed by one year of probation. Therefore, 

it appears that appellant is no longer serving his sentence.4

 If so, then he is 

ineligible for PCRA relief. Our supreme court has held that, to be eligible for 

relief under the PCRA, the petitioner must be “currently serving a sentence 

of imprisonment, probation or parole for the crime.” 42 Pa.C.S.A. 

§ 9543(a)(1)(i). As soon as his sentence is completed, the petitioner 

becomes ineligible for relief, regardless of whether he was serving his 

sentence when he filed the petition. Commonwealth v. Ahlborn, 699 A.2d 

718, 720 (Pa. 1997); Commonwealth v. Matin, 832 A.2d 1141, 1143 

(Pa.Super. 2003), appeal denied, 843 A.2d 1237 (Pa. 2004). In addition, 

this court determined in Commonwealth v. Fisher, 703 A.2d 714 

(Pa.Super. 1997), that the PCRA precludes relief for those petitioners whose 

sentences have expired, regardless of the collateral consequences of their 

sentence. Id. at 716 (citations omitted). 

At any rate, appellant’s petition is clearly untimely and no exception 

applies to the statutory one-year time bar. Appellant attempted to invoke 

the after-recognized constitutional right exception, relying on Padilla v. 

 

4 See notes of testimony, PCRA hearing, 8/11/11 at 4 (“I would also point 

out that on case 1313 of 2009 [appellant] is no longer serving a sentence. 

[Appellant]’s maximum sentence on that case was 23 months, which was 

July 16, 2009; it was imposed on July 16, 2009. That 22 month [sic] 

sentence expired in June of 2011. So for that additional reason [appellant] 

is not entitled to relief on 1313 of 2009.”).
J. S28009/14 

- 6 - 

Kentucky, 559 U.S. 356 (2010), in which the United States Supreme Court 

held that counsel must inform his client whether his plea carries a risk of 

deportation. However, this court determined in Commonwealth v. Garcia, 

23 A.3d 1059 (Pa.Super. 2011), that Padilla did not recognize a new 

“constitutional right” and does not apply retroactively to cases on collateral 

review as an exception to the timeliness requirements of the PCRA.5

 Appellant also claims the trial court did not have subject matter 

jurisdiction because he was a juvenile at the time of his plea. Appellant 

argues that Attorney Consadene should have filed a petition to transfer his 

case to juvenile court. According to appellant, his sentence is a 

“legal nullity.” 

 Appellant is correct that generally, subject matter jurisdiction is 

non-waivable; however, the issue would still have to be raised in a timely 

PCRA petition. 

The timeliness requirements of the PCRA do not vary 

based “on the nature of the constitutional violations 

alleged therein . . . . To the contrary, . . . the 

PCRA’s timeliness requirements . . . are intended to 

apply to all PCRA petitions, regardless of the nature

of the individual claims raised therein.” 

Commonwealth v. Murray, 562 Pa. 1, 753 A.2d 

201, 202-03 (2000). Because the “PCRA’s timeliness 

requirements are mandatory and jurisdictional in 

nature, no court may properly disregard or alter 

 

5

 We note that Attorney Consadene testified at the PCRA hearing that 

appellant never told him he was a Liberian national, and he assumed he was 

a United States citizen. (Notes of testimony, 8/11/11 at 12.) The issue 

never came up, and Attorney Consadene had no reason to inform appellant 

of the immigration consequences of his plea. (Id.) 
J. S28009/14 

- 7 - 

them in order to reach the merits of the claims 

raised in a PCRA petition that is filed in an untimely 

manner.”

Id. at 203. Howard, 788 A.2d at 356. Indeed, “even claims that a 

sentence was illegal, an issue deemed incapable of being waived, are not 

beyond the jurisdictional time restrictions.” Commonwealth v. Grafton, 

928 A.2d 1112, 1114 (Pa.Super. 2007), citing Fahy, supra; 

Commonwealth v. Beck, 848 A.2d 987 (Pa.Super. 2004). Certainly, we 

disagree with appellant’s assertion that his plea and sentence were somehow 

a “legal nullity.” (Appellant’s brief at 20-21.) 

 Appellant has also filed a petition for remand, which this court denied 

without prejudice to re-raise the issue in his appellate brief. Appellant 

claims he has after-discovered evidence proving that he was born on 

January 4, 1992, including a Pennsylvania non-driver identification card. 

 This is not after-discovered evidence for PCRA purposes where 

appellant was certainly aware of his birthdate at the time of his plea. In 

fact, appellant testified at the PCRA hearing that he purposely lied to the 

court about his age because he did not want his mother to know about his 

arrest. (Notes of testimony, 8/11/11 at 35.) Appellant told the court that 

he was 20 years old. (Id.) Attorney Consadene testified that the record 

indicated appellant was born on October 19, 1988, and he had no reason to 

think that date was incorrect. (Id. at 13, 21-22.) Attorney Consadene 
J. S28009/14 

- 8 - 

would have had no basis for filing a petition to transfer the case to juvenile 

court. (Id.) 

 Appellant also argues that, in the alternative, he should be allowed to 

pursue the matter in a state habeas corpus petition. (Appellant’s brief at 

23-24.) Appellant states that the remedy of habeas corpus is available for 

the rare instances where the PCRA offers no remedy. (Id. at 23.) 

[T]he PCRA is the exclusive vehicle for obtaining 

post-conviction collateral relief. Commonwealth v. 

Bronshtein, 561 Pa. 611, 614 n. 3, 752 A.2d 868, 

869-70 n. 3 (2000). This is true regardless of the 

manner in which the petition is titled. 

Commonwealth v. Hutchins, 760 A.2d 50, 52 n. 1 

(Pa.Super.2000). Indeed, the PCRA statute 

specifically provides for such treatment: 

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 

when this subchapter takes effect, 

including habeas corpus and coram 

nobis. 

42 Pa.C.S.A. § 9542. Simply because the merits of 

the PCRA petition cannot be considered due to 

previous litigation, waiver, or an untimely filing, 

there is no alternative basis for relief outside the 

framework of the PCRA. See generally, 

Commonwealth v. Fahy, 558 Pa. 313, 332, 737 

A.2d 214, 223-224 (1999) (citing Commonwealth 

v. Chester, 557 Pa. 358, 733 A.2d 1242 (1999)). 

Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa.Super. 2001). 

Unless the PCRA could not provide for a potential 

remedy, the PCRA statute subsumes the writ of 

habeas corpus. Fahy, supra at 223-224; 
J. S28009/14 

- 9 - 

Commonwealth v. Chester, 557 Pa. 358, 733 A.2d 

1242 (1999). Issues that are cognizable under the 

PCRA must be raised in a timely PCRA petition and 

cannot be raised in a habeas corpus petition. See

Commonwealth v. Peterkin, 554 Pa. 547, 722 

A.2d 638 (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, 465-466 (Pa.Super. 2013). 

Appellant’s claims of ineffective assistance of counsel for failure to 

advise him of the immigration consequences of his plea, and for failure to 

move to have the case transferred to juvenile court, are certainly cognizable 

under the PCRA. Appellant cannot seek to avoid the PCRA’s time limitations 

by bringing the identical claims in a habeas petition. Simply because 

appellant’s petition is untimely and no exception to the statutory time-bar 

applies, and he is left without a remedy under the PCRA, does not mean that 

his claims are reviewable pursuant to habeas corpus.

6

 See 

Commonwealth v. Dickerson, 900 A.2d 407, 412 (Pa.Super. 2006), 

appeal denied, 911 A.2d 933 (Pa. 2006) (“the writ of habeas corpus has 

been subsumed into the PCRA for claims that are cognizable under the Act 

 

6

 Ironically, if appellant had been adjudicated delinquent in juvenile court, he 

would likely be unable to bring a claim of trial counsel ineffectiveness for 

failing to warn him of the immigration consequences of his plea. The PCRA 

does not apply to juveniles, and habeas corpus is limited to those juveniles 

who are presently detained. In re B.S., 831 A.2d 151, 154 (Pa.Super. 

2003). 
J. S28009/14 

- 10 - 

and is not available merely because an otherwise cognizable claim is 

jurisdictionally time-barred”), citing Fahy, supra. 

As appellant’s petition was untimely filed, the PCRA court did not have 

jurisdiction to consider it. The PCRA court did not err in denying appellant’s 

petition. 

 Order affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/12/2014