J-S06021-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA

v.

KEVIN SANDERS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 925 EDA 2017

Appeal from the PCRA Order Entered February 22, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0222741-1988, 

CP-51-CR-0226571-1988, CP-51-CR-0226611-1988, 

CP-51-CR-0226651-1988

BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED APRIL 23, 2018

Appellant, Kevin Sanders, appeals pro se from the February 22, 2017 

order entered in the Court of Common Pleas of Philadelphia County (“PCRA 

court”), denying his petition for habeas corpus relief, which the PCRA court 

treated as a serial, untimely Post Conviction Relief Act (“PCRA”) petition.1

Sanders seeks relief from the judgment of sentence of an aggregate term of 

36 years to 72 years’ imprisonment, imposed on August 7, 1989, following his 

conviction of five counts of robbery and five counts of criminal conspiracy.2

On appeal, he contends the PCRA court erred in characterizing his habeas 

corpus petition as a PCRA petition; all cases stating that the PCRA’s time 

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1 42 Pa.C.S. §§ 9541-9546.

2 18 Pa.C.S.A. §§ 3701 and 903, respectively. 
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restriction is jurisdictional do so in dicta; and the Remedies Clause of Article I 

§ 11 of the Pennsylvania Constitution requires courts to afford him a remedy 

for his claim that PCRA counsel was ineffective. We affirm. 

The relevant procedural history underlying this appeal is as follows. On 

January 11 and 19, 1989, Sanders was convicted by a jury of the above-stated 

offenses. On August 7, 1989, he was sentenced to an aggregate term of 36 

years to 72 years’ imprisonment. On April 26, 1995, this Court affirmed the 

judgment of sentence on direct appeal and on November 8, 1995, the 

Supreme Court of Pennsylvania denied allowance of appeal. Commonwealth 

v. Sanders, 663 A.2d 253 (Pa.Super. 1995) (unpublished memorandum),

appeal denied, 668 A.2d 1129 (Pa. 1995).

Sanders filed his first pro se PCRA petition in October 1996. In that 

petition he raised numerous claims of ineffective assistance of trial and 

appellate counsel. Counsel was appointed and eventually filed a Finley letter 

asserting that no meritorious claims existed.3 Sanders filed objections to the 

Finley letter and on May 12, 1997, the PCRA court rejected counsel’s Finley 

letter and ordered counsel to consult with Sanders. Counsel then submitted a 

supplemental Finley letter which the court accepted. Sanders did not file 

objections to the supplemental Finley letter. Subsequently the court denied 

the PCRA petition and granted counsel leave to withdraw. 

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3 Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1983) (en banc). 
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Thereafter, Sanders filed several PCRA petitions, all of which were 

denied. On November 13, 2015, he then filed his so-called “Habeas” petition 

that gave rise to this appeal. In the petition, Sanders alleged that his first 

PCRA counsel was ineffective for failing to amend and brief his pro se petition 

to include a challenge to the legality of consecutive sentences imposed for 

multiple counts of criminal conspiracy. Additionally, he alleged that trial and 

appellate counsel failed to properly raise and preserve the above issues. He 

further alleged that prior PCRA counsel was ineffective for failing to challenge 

appellate counsel’s deficient performance in failing to raise on direct appeal, 

meritorious issues that were properly preserved by trial counsel by way of 

post-verdict motions. 

The PCRA court treated the petition as a PCRA petition and dismissed it 

as untimely on February 22, 2017. The PCRA court did not direct Sanders to 

file a Concise Statement of Errors Complained of on Appeal pursuant to 

Pa.R.A.P. 1925(b). 

On appeal, Sanders raises the following issues:

I. Did the lower court err in treating appellant’s petition for 

writ of habeas corpus ad subjiciendum as a petition 

pursuant to the Post Conviction Relief Act? 

II. Are prior appellate courts’ assertions, that the PCRA’s time 

restriction is jurisdictional, dictum, not based on proper 

statutory analysis and contrary to legislative intent? 

III. Does the Remedies Clause of Article I § 11 of the 

Pennsylvania Constitution mandate that courts of this 

Commonwealth provide criminal defendants with a formal 
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remedy for purposes of vindicating their rule-based right to 

the effective assistance of PCRA counsel?

Appellant’s Brief at 4. 

Sanders claims that his petition below was properly a petition for writ of 

habeas corpus because it sought relief for his claim that PCRA counsel was 

ineffective, and such claims are not covered under the PCRA. We disagree. 

The writ of habeas corpus has for most purposes been subsumed in the PCRA. 

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

PCRA is the sole means by which a criminal defendant may seek collateral 

relief, including for claims that counsel, including PCRA counsel, was 

ineffective. 42 Pa.C.S.A. § 9542.4 As the Commonwealth correctly notes, 

ineffective assistance of counsel claims, including challenging the 

effectiveness of PCRA counsel, are cognizable under the PCRA. 42 Pa.C.S.A. § 

9543(a)(2)(ii). Thus the PCRA court properly treated Sanders’ so-called 

“Petition for Writ of Habeas Corpus Ad Subjiciendum” as a PCRA petition. 

We next address Sanders’ claim regarding the PCRA’s time limitation for 

the filing of a PCRA petition. All claims cognizable under the PCRA, including 

ineffectiveness claims, must be filed within one year of the date the judgment 

becomes final unless a statutory exception to the one-year time bar applies. 

42 Pa.C.S.A. § 9545(b); Commonwealth v. Wharton, 886 A.2d 1120, 1127 

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4 “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 . . .” 42 Pa.C.S.A. § 9542 (emphasis 

added). 
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(Pa. 2005). A judgment becomes final at 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 

direct review. 42 Pa.C.S.A. § 9545(b)(3). 

The one-year deadline does not apply only if the petitioner pleads and 

proves at least one of the three limited exceptions to the one-year time bar:

(i) [T]he failure to raise the claim previously was the result 

of the 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) [T]he 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) [T]he 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)-(iii). 

Allegations of ineffective assistance of counsel do not overcome the 

jurisdictional timeliness requirements of the PCRA. Wharton, 886 A.2d at 

1127. A petition invoking an exception must be filed within 60 days of the date 

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

Sanders fails to allege any of the exceptions apply here and instead 

claims that statements in prior cases that the PCRA’s time bar is jurisdictional 

are dicta and that cases containing those statements were wrongly decided. 
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This argument is meritless. The Supreme Court of Pennsylvania and this Court 

have repeatedly held that the PCRA’s timeliness requirements are 

jurisdictional. See Commonwealth v. Whitney, 817 A.2d 473, 477-78 (Pa. 

2003); Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa. 1999) (holding that 

where petitioner fails to satisfy PCRA time requirements, court has no 

jurisdiction to entertain the petition); Commonwealth v. Derrickson, 923 

A.2d 466, 468 (Pa.Super. 2007) (holding that trial court lacked jurisdiction to 

review post-conviction petition filed more than one year after judgment of 

sentence became final). We are in no position to disagree.

Sanders’ final argument is that the PCRA’s time bar is unconstitutional 

as applied to him because it deprives him of a remedy in violation of Article I 

Section 11 of the Pennsylvania Constitution.5 To the contrary, a PCRA 

petitioner has a remedy for PCRA counsel’s ineffectiveness. A petitioner may 

raise PCRA counsel’s alleged ineffectiveness after receiving counsel’s 

withdrawal letter or after receiving Pa.R.Crim.P. 907 notice of intent to 

dismiss. Commonwealth v. Pitts, 981 A.2d 875, 880 n.4 (Pa. 2009). Failing 

to raise an ineffectiveness of counsel claim prior to the appeal of the 

underlying PCRA results in a waiver of the claim. Commonwealth v. Smith, 

121 A.3d 1049, 1054 (Pa.Super. 2015). Even where a petitioner has waived 

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5 “All courts shall be open; and every man for an injury done him in his lands, 

goods, person or reputation shall have remedy by due course of law, and right 

and justice administered without sale, denial or delay. Suits may be brought 

against the Commonwealth in such manner, in such courts and in such cases 

as the Legislature may by law direct.” Pa. Const. Art. 1, § 11.
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the claim of ineffectiveness, if a subsequent timely PCRA is filed or the 

petitioner pleads and proves that one of the exceptions to the time bar applies, 

a claim of PCRA counsel’s ineffectiveness may be pursued. Commonwealth 

v. Jette, 23 A.3d 1032, 1044 n.14 (Pa. 2011). 

Here, Sanders was afforded the opportunity to claim ineffectiveness of 

counsel when he received the supplemental Finley letter filed by counsel for 

his first PCRA. Sanders did not respond by raising in the PCRA court any claim 

that PCRA counsel was ineffective. Instead, he filed a Notice of Appeal. As 

such, he waived the ineffectiveness of PCRA counsel. His waiver does not 

exempt him from the PCRA’s time requirements, and it does not convert his 

claim into a petition for writ of habeas corpus or constitute a violation of the 

Remedies Clause. See Commonwealth v. Turner, 80 A.3d 754, 770-71 (Pa. 

2013) (holding Remedies Clause did not require court to afford remedy to 

petitioner who failed to utilize PCRA procedures to seek relief during time she 

was statutorily eligible). 

Sanders’ reliance on Commonwealth v. Holmes, 79 A.3d 562 (Pa. 

2013) and Commonwealth v. Henkel, 90 A.3d 16 (Pa.Super. 2014) (en

banc), is misplaced. Neither of those cases involved untimely PCRA petitions 

and therefore are irrelevant to our analysis. Sanders’ reliance on Martinez v. 

Ryan, 566 U.S. 1 (2012), is likewise misplaced, as it relates exclusively to 

federal habeas review procedures which are obviously not at issue here. 

Therefore, we affirm the PCRA court’s decision to dismiss the petition as 

untimely.
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/23/18