Com. v. Bradly, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

TERRENCE BRADLY,

Appellant No. 285 WDA 2014

Appeal from the PCRA Order Entered February 13, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0006702-1989 CP-02-CR-0006884-1989

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.* MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 05, 2014

Appellant, Terrence Bradly, appeals pro se from the order dismissing his petition for a writ of habeas corpus ad subjiciendum. After careful review, we affirm.

Appellant was charged at the above-listed criminal informations in 1989. Appellant proceeded to a jury trial on February 13, 1990. On February 15, 1990, the jury found Appellant guilty of first degree murder and robbery.1 On February 5, 1991, Appellant was sentenced to a mandatory term of life imprisonment without the possibility of parole. After ____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1

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Appellant filed a direct appeal, this Court affirmed his judgment of sentence on March 3, 1992. Commonwealth v. Bradly, 610 A.2d 62 (Pa. Super. 1992) (unpublished memorandum).

Appellant filed his first Post Conviction Relief Act2 (PCRA) petition on August 23, 2012. Counsel was appointed; however, appointed counsel ultimately filed a no-merit letter and a motion to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). By pursuant to Pa.R.Crim.P. 907. Appellant filed objections to that order on May 29, 2013. The court dismissed his PCRA petition on June 17, 2013. Although Appellant appealed the dismissal of his PCRA petition, this Court ultimately dismissed his appeal after he failed to file a brief. See Superior Court Order, 11/12/13, at 1.

The instant matter arose when Appellant filed a petition for a writ of habeas corpus ad subjiciendum (Habeas Petition) with the Court of Common Pleas of Allegheny County3 on November 26, 2013. Therein, Appellant

claimed that his sentence was invalid because it was imposed pursuant to a ____________________________________________

2 42 Pa.C.S. § 9541 et seq. 3 t PCRA petition

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subsequently repealed statute. The PCRA court dismissed the Habeas Petition on January 24, 2014, and Appellant filed a timely appeal from that order. The PCRA court did not order Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The PCRA court issued a Rule 1925(a) opinion on May 16, 2014.

Appellant now presents the following question for our review:

[Petition for a] Writ of Habeas Corpus Ad Subjiciendum [in] violat[ion of] his substantive due process rights[,] where Appellant has been unlawfully committed to serve life imprisonment on a mandated repealed statute?

The PCRA Conviction Relief Act is the sole means by which a criminal defendant may at 2 (citing Commonwealth v. Mercado, 826 A.2d 897 (Pa. Super. 2003)). The PCRA court did not offer any additional explanation for its ruling. In his brief, Appellant asserts that his claim is properly raised in a petition for a writ of habeas corpus ad subjiciendum g Commonwealth v. Bangs, 393 A.2d 720 (Pa. Super. 1978)). Both Appellant and the PCRA court have failed to address this claim in the appropriate fashion.

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under the PCRA or it was not. If it was, then the PCRA court should have treated the Habeas Petition as a PCRA petition. See Commonwealth v. Deaner collateral petition raising issues with respect to remedies offered under the cognizable under the PCRA, then the trial court should have addressed the petition as properly raised under our habeas corpus jurisprudence. In both Commonwealth v. West, 938 A.2d 1034 (Pa. 2007), and Commonwealth v. Judge, 916 A.2d 511 (Pa. 2007), our Supreme Court held that claims that fall outside the sphere of the PCRA can be advanced via a petition for a writ of habeas corpus.

Appellant essentially argued in his Habeas Petition that his sentence of life imprisonment lacked a valid statutory basis at the time it was imposed, a claim that he continues to make in this appeal. Section 1102 of Title 18 currently provides, in pertinent part, as follows:

Except as provided under section 1102.1 (relating to sentence of persons under the age of 18 for murder, murder of an unborn child and murder of a law enforcement officer), a person who has been convicted of a murder of the first degree or of murder of a law enforcement officer of the first degree shall be sentenced to death or to a term of life imprisonment in accordance with 42 Pa.C.S. § 9711 (relating to sentencing procedure for murder of the first degree).

18 Pa.C.S. § 1102(a)(1).

Thus, when a defendant is convicted of first degree murder, section 1102 establishes two possible sentences: life imprisonment or death. The

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statute also dictates that the procedure for deciding between those penalties is governed 42 Pa.C.S. § 9711, as denoted by the italicized portion of section 1102(a) above. Prior to its amendment in 1995, section 1102(a) referenced a prior version of 18 Pa.C.S. § 1311(d) rather than section 9711 of Title 42. However, that prior version of section 1311(d) was declared unconstitutional by our Supreme Court in 1977. Commonwealth v. Moody, 382 A.2d 442, 443 (Pa. 1977). As we noted in Commonwealth v. Hardcastle, 546 A.2d 1101 (Pa. 1988), Moody was superseded by statute when 42 Pa.C.S. § 9711 was amended to replace 18 Pa.C.S. § 1311(d) as the applicable procedure for determining the appropriate sentence for first degree murder in 1980.

Appellant was sentenced in 1991 pursuant to the then in-effect version sentencing procedure for first degree murder had been in effect for more than a decade, section 1102(a)(1) still referenced the version of section 1311(d) which had been deemed unconstitutional in Moody in 1977. Thus, Appellant claims, his substantive rights were violated when he was sentenced under section 1102, when the sentencing procedure set forth in that st

See In re M.W., 725 A.2d 729, 731 (Pa. 1999) (holding that, when a sentencing

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the issue raised implicates the legality of the sentence imposed). The PCRA specifically includes challenges to an illegal sentence within its stated scope. convicted of crimes they did not commit and persons serving illegal

vely (or additionally), to sentence Appellant under the version of 18 Pa.C.S. § 1102(a)(1) in effect in 1991. See 42 Pa.C.S. § 9543(a)(2)(viii) (stating that one is eligible for jurisdiction of the court that imposed it, it is cognizable under the PCRA. as a PCRA petition. Deaner, supra. Because the PCRA court did not treat the Habeas Petition as a PCRA petition, it did not give Appellant notice of intent to dismiss or afford him the opportunity to amend the petition. See Pa.R.Crim.P. 907(1); Pa.R.Crim.P. 905(B). In this regard, the PCRA court clearly erred. of his petition on these grounds. The failure to challenge the absence of a Rule 907 notice results in waiver of that issue. Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citing Commonwealth v. Boyd, 923

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raised, where the petition is untimely, it does not automatically warrant

Id. (citing Commonwealth v. Pursell, 749 A.2d 911, 917 n.7 (Pa. 2000)).

Having established that the PCRA court should have treated

tion, we must address the jurisdiction and may not be altered or disregarded in order to address the merits of a petition. Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (stating PCRA time limitations implicate our jurisdiction and may not be altered or disregarded to address the merits of the petition); Commonwealth v. Johnson, 803 A.2d 1291, 1294 (Pa. Super. 2002) (holding the Superior Court lacks jurisdiction to reach merits of an appeal from an untimely PCRA petition).

Under the PCRA, any petition for post-conviction relief, including a second or subsequent one, must be filed within one year of the date the judgment of sentence becomes final, unless one of the exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-(iii) applies. That section states, in relevant part:

(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 becomes final, unless the petition alleges and the petitioner proves that:

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(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). Any petition attempting to invoke one of apply to App also cannot be applied, because even if the defect that existed in the 1991 version of 18 Pa.C.S. § 1102 called sentence or the jurisdiction of the sentencing court, that defect was There is no plausible argument why Appellant could not have discovered that defect through the exercise of due diligence in the year after his sentence became final. There is certainly no plausible reason why it would take more than 20 years to discover that defect.

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We conclude, therefore, that even if the PCRA court had not erred by Accordingly, the PCRA court lacked jurisdiction to entertain his claim, as do we.

Order affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/5/2014

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