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

v.

GARNET D. SMITH

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2956 EDA 2018
Appeal from the PCRA Order Entered September 10, 2018 , i n the Court of Common Pleas of Philadelphia County , Criminal Division at No(s): CP

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- CR

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- 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 murder 2 and possessi on 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

. T his Court affirmed Smith’s judgment of sentence, and on March 12, 1990, the Supreme

_________________ __________ ______ ____ _______ 1 42 Pa.C.S.A. §§ 9541

- 9546.

2 18 Pa.C.S.A. § 2502(a).

3 18 Pa.C.S.A. § 907.J

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Court of Pennsylvania denied allocat u r . 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 , 1 990. 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 petition s, 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 Super. 1999) (unpublished memorandum); Commonwealth v. Smith , 964 A.2d 446 (Pa. Super. 2008) (unpublished memorandum), appeal denied , 983 A.2d 1248 (Pa. 2009).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 s tyled

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 Stat es , 133 S. Ct. 2151 (2013)

. D espite 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 file d a response to the Rule 907 notice . O n September 10, 2018, the PCRA court entered an order dismissing the petition. Smith filed a timely pro se notice of appeal . T he PCRA court did not order Smith to file a Pa.R.A.P. 1925(b) concise statement, but it a uthored an opinio n pursuant to Pa.R.A.P. 1925(a).J

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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 limit ed
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 c orpus 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 wit hout the possibility of parole is unconstitutional u nder Alleyne

. 4 Specifically, Smith assert s 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 person s 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.

_________________ __________ ______ ____ _______ 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 d oubt. 133 S. Ct. at 2160

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Accordingly, Smith claim s 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 argue s 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
circums tances 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 fromJ

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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]hi s subchapter provides for an action by which

. . . persons serving illegal sentences may obtain collateral relief.” 42 Pa.C.S.A. § 9542 (emphasis added)

. Moreover , t his Court has specifically held that Alleyne claim s 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 w hen 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 se ntence 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 determin ing 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 f inal.” 42 Pa.C.S.A. § 9545(b)( 1 ). A judgment of sentence becomes final “ atJ

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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 restrictio ns 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 th e 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 PCR A court lacked jurisdiction to address it unless Smith pled and proved one of the three exceptions set forth in § 9545(b)(1). 5

_________________ __________ ______ ____ _______ 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) th e 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).J

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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 d id not attempt to establish any of the PCRA’s timeliness exceptions. Indeed , i n his appellate brief, Smith explicitly concedes that in his original p etition 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 s entence should be treated as PCRA petition because “ the PCRA is intended to be the sole means of achieving post

- conviction relief ”)

. Thus, b ecause 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 t he record supports the PCRA’s courts findings and the order is free

_________________ __________ ______ ____ _______ 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, t he sixty

- day time period applies in this appeal. See Commonwealth v. Beatty , 207 A.3d 957, 962 n.3 (Pa. Super. 2019).J

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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