J-S52024-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GARNET D. SMITH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2956 EDA 2018

Appeal from the PCRA Order Entered September 10, 2018,

in the Court of Common Pleas of Philadelphia County,

Criminal Division at No(s): CP-51-CR-0332181-1985.

BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED NOVEMBER 07, 2019

Garnet D. Smith appeals pro se from the order dismissing his third 

petition filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

On November 2, 1980, when Smith was twenty-five years old, he shot 

and killed a man outside of a bar in Germantown, Pennsylvania. On December 

3, 1986, a jury convicted Smith of first-degree murder2 and possession of an 

instrument of a crime (“PIC”).

3

 The trial court sentenced Smith to life 

imprisonment without the possibility of parole for murder, and a consecutive 

term of two and one-half to five years of imprisonment for PIC. This Court 

affirmed Smith’s judgment of sentence, and on March 12, 1990, the Supreme 

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1 42 Pa.C.S.A. §§ 9541-9546. 

2 18 Pa.C.S.A. § 2502(a).

3 18 Pa.C.S.A. § 907.
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Court of Pennsylvania denied allocatur. See Commonwealth v. Smith, 552 

A.2d 1053 (Pa. Super. 1988), appeal denied, 575 A.2d 112 (Pa. 1990). Smith 

did not seek review with the United States Supreme Court. Therefore, Smith’s 

judgment of sentence became final ninety days thereafter, on June 11, 1990. 

See 42 Pa.C.S.A. § 9545(b)(3); U.S.Sup.Ct.R. 13. 

Smith filed his first pro se PCRA petition in 1993, and his second pro se

petition in 2005. The PCRA court dismissed those petitions, and this Court 

affirmed the dismissals. See Commonwealth v. Smith, 724 A.2d 211 (Pa. 

Super. 1999) (unpublished memorandum); Commonwealth v. Smith, 964 

A.2d 446 (Pa. Super. 2008) (unpublished memorandum), appeal denied, 983 

A.2d 1248 (Pa. 2009).

On April 24, 2014, Smith filed the instant pro se petition, which he styled 

as a petition for writ of habeas corpus. Therein, Smith argued that he was 

entitled to relief because his life sentence without the possibility of parole was 

unconstitutional under the United States Supreme Court’s decision in Allyene 

v. United States, 133 S. Ct. 2151 (2013). Despite Smith’s classification of 

his filing as a petition for writ of habeas corpus, the PCRA court treated it as 

a PCRA petition, and issued a Pa.R.Crim.P. 907 notice of intent to dismiss the 

petition as untimely. Smith filed a response to the Rule 907 notice. On 

September 10, 2018, the PCRA court entered an order dismissing the petition. 

Smith filed a timely pro se notice of appeal. The PCRA court did not order 

Smith to file a Pa.R.A.P. 1925(b) concise statement, but it authored an opinion 

pursuant to Pa.R.A.P. 1925(a). 
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On appeal Smith raises the following issue for our review: “Did the trial 

court err by reviewing [Smith’s] habeas corpus petition as a PCRA petition and 

dismissing it as untimely warranting a remand to the trial court for an 

adjudication on the merit of the habeas corpus petition?” Smith’s Brief at 6. 

Our standard of review of an order dismissing a PCRA petition is limited 

to considering “whether the determination of the PCRA court is supported by 

evidence of record and is free of legal error.” Commonwealth v. Brandon, 

51 A.3d 231, 233 (Pa. Super. 2012). 

Smith argues that the PCRA court erred in treating his habeas corpus

petition as a PCRA petition subject to timeliness considerations. He contends 

that his habeas corpus petition fell outside the scope of the PCRA because he 

argued therein that his life sentence without the possibility of parole is

unconstitutional under Alleyne.

4

 Specifically, Smith asserts that Alleyne, 

when read in conjunction with Miller v. Alabama, 567 U.S. 460 (2012) 

(holding that mandatory minimum life sentences without possibility for parole 

for persons under the age of eighteen violate the Eighth Amendment’s 

prohibition on cruel and unusual punishment), and Montgomery v. 

Louisiana, 136 S. Ct. 718 (2016) (holding that Miller applies retroactively to 

cases on collateral appeal), dictates that Smith’s age was an element of the 

crime that should have been determined by a jury beyond a reasonable doubt. 

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4 Alleyne held that, other than the fact of a prior conviction, any fact that 

increases the penalty for a crime beyond the prescribed statutory minimum 

must be submitted to a jury and proven beyond a reasonable doubt. 133 S. 

Ct. at 2160-61. 
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Accordingly, Smith claims that his sentence is unconstitutional because he 

received a mandatory minimum life sentence without the possibility of parole, 

and a jury never determined beyond a reasonable doubt that he was over the 

age of eighteen. Smith further argues that, because the claim raised in his 

habeas corpus petition implicates the constitutionality of his sentence, it is not 

cognizable under the PCRA, or subject to its limitations. 

First, we address whether the PCRA court correctly treated Smith’s 

petition as a PCRA petition. “[B]oth the PCRA and the state habeas corpus

statute contemplate that the PCRA subsumes the writ of habeas corpus in 

circumstances where the PCRA provides a remedy for the claim.” 

Commonwealth v. Hackett, 956 A.2d 978, 985 (Pa. 2008). The PCRA 

provides that, “[t]he 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 (emphasis added). Pennsylvania’s habeas corpus statute provides that 

“the writ of habeas corpus shall not be available if a remedy may be had by 

post-conviction hearing proceedings authorized by law.” 42 Pa.C.S.A. 

§ 6503(b). Thus, where a petitioner’s claim is eligible for relief under the 

PCRA, the petitioner must proceed thereunder. See Commonwealth v. 

Peterkin, 722 A.2d 638, 641 (Pa. 1998). Entitling a petition as a writ of 

habeas corpus rather than a PCRA petition does not remove the petition from 
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the subject matter or the requirements of the PCRA. See Commonwealth 

v. Breakiron, 781 A.2d 94, 96 n.2 (Pa. 2001).

Pennsylvania courts have consistently held that “[i]ssues concerning the 

legality of sentence are cognizable under the PCRA.” Commonwealth v. 

Beck, 848 A.2d 987, 989 (Pa. Super. 2004). The PCRA itself states that 

“[t]his subchapter provides for an action by which . . . persons serving 

illegal sentences may obtain collateral relief.” 42 Pa.C.S.A. § 9542

(emphasis added). Moreover, this Court has specifically held that Alleyne

claims implicate the legality of the sentence and, therefore, fall within the 

ambit of the PCRA. See Commonwealth v. Ruiz, 131 A.3d 54, 60 (Pa. 

Super. 2015) (holding that petitioners can raise an Alleyne claim in a timely 

PCRA petition where the petitioner’s direct appeal was still pending when 

Alleyne was decided); see also Commonwealth v. Newman, 99 A.3d 86, 

90 (Pa. Super. 2014) (en banc) (holding that a challenge to a sentence 

premised upon Alleyne implicates the legality of the sentence). Thus, Smith’s 

challenge to the legality of his sentence based upon Alleyne is cognizable 

under the PCRA, and the trial court properly construed Smith’s petition for writ 

of habeas corpus as a PCRA petition.

Having concluded that Smith’s Alleyne claim is cognizable under the 

PCRA, we next address whether the PCRA court erred in determining that it 

lacked jurisdiction to review Smith’s petition. Pursuant to § 9545, PCRA 

petitions “shall be filed within one year of the date the judgment became 

final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence becomes final “at 
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the conclusion of direct review, including discretionary review in the Supreme 

Court of the United States and the Supreme Court of Pennsylvania, or at the 

expiration of time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). The 

PCRA’s time restrictions are jurisdictional in nature; thus, if a PCRA petition is 

untimely, no court has the legal authority to address the substantive claims 

raised in the petition. Commonwealth v. Rizvi, 166 A.3d 344, 347 (Pa. 

Super. 2017). 

As noted above, Smith’s judgment of sentence became final on June 11, 

1990. Smith filed the instant petition on April 24, 2014, almost 24 years after 

his judgment of sentence became final. Thus, Smith’s petition is facially

untimely, and the PCRA court lacked jurisdiction to address it unless Smith 

pled and proved one of the three exceptions set forth in § 9545(b)(1).5 

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5 The three exceptions to the timeliness requirement 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.A. §§ 9545(b)(1)(i), (ii), and (iii).
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Additionally, Smith must establish that he filed the petition within sixty days 

of the date the claim could have been presented. 42 Pa.C.S.A. § 9545(b)(2).6

In his petition, Smith did not attempt to establish any of the PCRA’s 

timeliness exceptions. Indeed, in his appellate brief, Smith explicitly concedes

that in his original petition and amendment thereto, he “did not advance a 

timeliness exception.” Smith’s Brief at 8. Instead, Smith’s entire argument 

is premised upon his claim that the PCRA’s time restrictions do not apply to 

his petition for writ of habeas corpus. However, as we have already 

determined, Smith cannot avoid the dictates and limitations of the PCRA 

merely by styling his petition as a writ of habeas corpus. See 

Commonwealth v. Taylor, 65 A.3d 462 (Pa. Super. 2013) (holding that an 

appellant’s writ of habeas corpus that challenges the legality of sentence

should be treated as PCRA petition because “the PCRA is intended to be the 

sole means of achieving post-conviction relief”). Thus, because Smith failed 

to plead and prove any of the timeliness exceptions provided in § 9545(b)(1),

we conclude that the PCRA court correctly determined that it lacked 

jurisdiction to consider the merits of Smith’s untimely petition. 

As the record supports the PCRA’s courts findings and the order is free

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6 Section 9545(b)(2) has since been amended to enlarge this period from sixty 

days to one year. See Act of 2018, October 24, P.L. 894, No. 146, §§ 2 and 

3. Because Smith filed this appeal prior to the effective date of the 

amendment, the sixty-day time period applies in this appeal. See 

Commonwealth v. Beatty, 207 A.3d 957, 962 n.3 (Pa. Super. 2019).
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of legal error, we affirm the PCRA court’s order dismissing Smith’s petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/7/19