J-S86012-16

* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRAD E. JONES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 87 WDA 2016

Appeal from the PCRA Order December 10, 2015

In the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): CP-02-CR-0014284-2001

BEFORE: GANTMAN, P.J., MOULTON, J., STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED NOVEMBER 21, 2016

Appellant Brad E. Jones appeals pro se from the Order entered in the 

Court of Common Pleas of Allegheny County on December 10, 2015, denying 

his “Writ of Habeas Corpus Ad-Subjiciendum” (hereinafter “Writ of Habeas 

Corpus”)

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as an untimely, serial petition filed pursuant to the Post Conviction 

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm. 

Appellant shot and killed his friend after a night of drinking and 

consuming drugs in 2001. Following a jury trial, Appellant was convicted of 

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1 A writ of habeas corpus ad subjiciendum is defined as “[a] writ directed to 

someone detaining another person and commanding that the detainee be 

brought to court.” Joseph v. Glunt, 96 A.3d 365, 367, appeal denied, 627 

Pa. 774, 101 A.3d 787 (2014) citing BLACK’S LAW DICTIONARY 778 (9th ed. 

2009).
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third-degree murder, corruption of minors, abuse of a corpse, carrying a 

firearm without a license, and criminal conspiracy on March 14, 2002. 

Appellant was sentenced to an aggregate term of twenty-one and one-half 

years to forty-three years in prison, and this Court dismissed his direct 

appeal on April 9, 2003, for his failure to file an appellate brief. Numerous 

petitions filed pursuant to the PCRA followed. 

On October 16, 2015, Appellant filed the instant pro se Writ of Habeas 

Corpus wherein he argued, inter alia, that “the continued validity of [his] 

sentence under 42 Pa.C.S.A. § 9712 violates the due process and equal 

protection clauses of the United States Constitution and/or Article 1 Section 

9 of the Pennsylvania Constitution.” See Writ of Habeas Corpus, at 2. The 

trial court treated this filing as Appellant’s fifth PCRA petition and issued a 

Pa.R.Crim.P. 907 notice of its intent to dismiss the petition on October 27, 

2015. Therein, the trial court indicated that this pleading had been filed 

untimely, no exception to the PCRA time-bar applied, and Alleyne v. United 

States, ___ U.S. ____, 133 S.Ct. 2151, 186 L.Ed. 314 (2013) was not 

retroactively applicable to Appellant’s case. 

Appellant filed a pro se Response to Notice of Intent to Dismiss on 

November 17, 2015, wherein he conceded that his “claim is not cognizable 

under PCRA because he is not challenging the legality or discretionary aspect 

of the actual sentence as imposed” and “his sentence was lawful as originally 

imposed.” See Response to Notice of Intent to Dismiss, filed 11/17/15, at 
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1-2. The trial court issued an order dismissing Appellant’s petition on 

December 10, 2015, and Appellant filed a timely notice of appeal on January 

8, 2016, as well as a timely concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b) wherein he raised three errors. 

Herein, Appellant presents a single question for our review:

I. Did the Lower Court err in construing the Habeas petition 

as a PCRA?

Brief for Appellant at iii. 

In a disjointed discussion, Appellant essentially maintains the trial 

court abused its discretion in determining his contentions are cognizable 

under the PCRA, because he is being unlawfully detained and denied “open 

access to the court” in light of the fact that our Supreme Court has declared 

42 Pa.C.S.A. § 9712 to be unconstitutional. Brief for Appellant at 3-8. This 

claim is meritless. 

Initially, we find that the trial court properly treated Appellant's Writ of 

Habeas Corpus as a PCRA petition. Under established Pennsylvania 

precedent, “the PCRA is intended to be the sole means of achieving postconviction relief.” Commonwealth v. Taylor 65 A.3d 462, 465 (Pa.Super. 

2013)(citations omitted); Commonwealth v. Descardes, ___ Pa. ____, 

____, 136 A.3d 493, 498 (2016) (“This Court has construed [42 Pa.C.S. § 

9542] as manifesting the legislature's intent that the PCRA be the sole 

means by which an appellant may collaterally challenge his conviction.”). 

Thus, “[u]nless the PCRA could not provide for a potential remedy, the PCRA 
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statute subsumes the writ of habeas corpus.” Taylor, supra at 465-466 

(citations omitted). Furthermore, “[i]ssues that are cognizable under the 

PCRA must be raised in a timely PCRA petition and cannot be raised in a 

habeas corpus petition. Taylor, at 466; Descardes, supra ___ Pa. at ____, 

136 A.3d at 501 (stating that where a claim is cognizable under the PCRA, 

the PCRA is the only method by which one may obtain collateral review”). 

Finally, “a defendant cannot escape the PCRA time-bar by titling his petition 

or motion as a writ of habeas corpus.” Taylor, supra at 466. 

Herein, Appellant contends that due to his “unique circumstances” he 

is serving an illegal sentence because the third-degree murder statute under 

which he previously had been convicted was declared unconstitutional “after 

the PCRA time limitations attached.” Brief for Appellant at 3-6. While 

Appellant does not specifically cite to Alleyne, this Court has held that 

claims asserted thereunder implicate the legality of one’s sentence. 

Accordingly, Appellant’s argument is cognizable under the PCRA, not under 

habeas corpus law. See Commonwealth v. Newman, 99 A.3d 86, 90 

(Pa.Super. 2014) (en banc); Commonwealth v. Ruiz, 131 A.3d 54, 60 

(Pa.Super. 2015) (Alleyne claim challenges legality of sentence which 

petitioner could raise in timely filed PCRA petition where his direct appeal 

had been pending when Alleyne was decided). Therefore, the trial court 

properly treated Appellant’s Writ of Habeas Corpus as a PCRA petition, and 

we must next determine whether the petition is properly before this Court. 
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“The question of whether a petition is timely raises a question of law. 

Where the petitioner raises questions of law, our standard of review is de 

novo and our scope of review is plenary.” Id. (citations omitted). All PCRA 

petitions must be filed within one year of the date upon which the judgment 

of sentence became final, unless one of the statutory exceptions set forth in 

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies, and the petitioner bears the 

burden to plead and prove an applicable statutory exception. If the petition 

is found to be untimely, and the petitioner has not pled and proven an 

exception, the petition must be dismissed without a hearing because 

Pennsylvania courts are without jurisdiction to consider the merits of the 

petition. Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.Super. 2011).

See also Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super. 2013). 

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) states: 

(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 of sentence 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 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 
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this section and has been held by that court to apply 

retroactively.

42 Pa.C.S.A. § 9545(b)(1). In addition, 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.A. § 9545(b)(2). 

This Court previously found that Appellant's judgment of sentence 

became final on June 22, 2003, following the expiration of Appellant's 

opportunity to petition for review with our Supreme Court. Thus, Appellant 

had until June 22, 2004 to file a timely PCRA petition. The instant PCRA 

petition, filed over twelve years later, is facially untimely, and Appellant has 

not invoked any of the statutory exceptions to the time-bar. In fact, 

Appellant nowhere specifies which timeliness exception he satisfies. Indeed, 

as the trial court noted, Appellant makes no allegations that governmental 

officials prevented him from filing his petition in a timely manner, nor does 

his claim rest upon facts that were unknown to him at the time of conviction 

or upon facts that could not have been ascertained through due diligence. 

In addition, Appellant admits his sentence was lawful as originally imposed. 

As such, Appellant has failed to plead and prove one of the aforementioned 

exceptions to the PCRA time-bar. 

Accordingly, the PCRA court properly concluded that Appellant’s Writ of 

Habeas Corpus was an untimely, serial PCRA petition. Jackson, supra.

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/21/2016