Opinion
J-S03029-16 No. 1156 EDA 2015
01-29-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. MIKE A. BROWN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the PCRA Order March 25, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-1113631-1999 BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J. MEMORANDUM BY OTT, J.:
Mike A. Brown appeals, pro se, from the order entered March 25, 2015, in the Philadelphia County Court of Common Pleas dismissing his petition for habeas corpus relief, which the trial court considered to be a serial, untimely PCRA petition. Brown seeks relief from the judgment of sentence of an aggregate seven to 22 years' imprisonment, imposed July 23, 2001, following his jury conviction of sexual assault, statutory sexual assault, and indecent assault for his abuse of a 14-year-old victim. On appeal, he contends the PCRA court erred in characterizing his habeas corpus petition as an untimely PCRA petition. For the reasons below, we affirm on the basis of the PCRA court's opinion.
Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.
18 Pa.C.S. §§ 3124.1, 3122, and 3126, respectively.
The relevant facts and procedural history underlying this appeal are as follows. On January 25, 2001, Brown was convicted of the above-stated offenses. On July 23, 2001, he was sentenced to an aggregate term of seven to 22 years' imprisonment. This Court affirmed the judgment of sentence on direct appeal. Commonwealth v. Brown , 808 A.2d 242 (Pa. Super. 2002) (unpublished memorandum).
Thereafter, Brown filed two PCRA petitions, both of which were denied by the trial court, and affirmed on appeal. See Commonwealth v. Brown , 850 A.2d 5 (Pa. Super. 2004) (unpublished memorandum); Commonwealth v. Brown , 970 A.2d 464 (Pa. Super. 2009) (unpublished judgment order), appeal denied, 980 A.2d 604 (Pa. 2009).
A panel of this Court concluded that Brown's second PCRA petition, filed on August 30, 2007, was "patently untimely." Commonwealth v. Brown , supra , 970 A.2d 464 (unpublished judgment order at 2).
On January 6, 2011, Brown filed a pro se "Motion to Modify and Correct Docket," which the trial court construed to be a PCRA petition, and promptly dismissed on January 10, 2011. A panel of this Court, once again, affirmed the PCRA court's order on appeal, and the Pennsylvania Supreme Court denied allowance of appeal. See Commonwealth v. Brown , 32 A.3d 260 (Pa. Super. 2011), appeal denied, 34 A.3d 825 (Pa. 2011). Brown then filed a pro se "Motion to Vacate Illegal Sentence and Impose Legal Sentence" in August of 2012, which the court denied.
Thereafter, on December 2, 2013, Brown filed a pro se petition for state habeas corpus review, asserting that the trial court lacked jurisdiction to try him because it had dismissed the charges two days before trial. See Petition for State Habeas Corpus Pursuant to 42 PACS § 6501, 12/2/2013, at 14-15. For reasons unclear in the record, the PCRA court did not receive the petition until February 11, 2015. See PCRA Court Opinion, 3/25/2015, at 1 n.1. On February 23, 2015, the PCRA court provided Brown with notice, pursuant to Pa.R.Crim.P. 907, of its intent to dismiss the petition as an untimely PCRA petition. Brown filed a pro se objection to the court's Rule 907 notice, asserting, inter alia, the court erred in characterizing the motion as a PCRA petition. The PCRA court subsequently dismissed the petition on March 25, 2015, and this timely appeal followed.
We note Brown had also filed a pro se motion to dismiss the charges based on a violation of his speedy trial rights. The PCRA court disposed of that petition as well, concluding that the "boilerplate motion" was based upon Pa.R.Crim.P. 600, and, therefore, "specifically intended for people who are awaiting trial" unlike Brown who had "filed this motion more than a decade after he was tried, convicted and sentenced." PCRA Court Opinion, 3/25/2015, at 2. Brown has not challenged that ruling on appeal.
The PCRA court did not direct Brown to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On appeal, Brown contends the PCRA court erred when it characterized his petition for habeas corpus as an untimely PCRA petition. Rather, he claims he is entitled to habeas relief because he is "solely" challenging his "illegal incarceration and not his guilt or innocence." Brown's Brief at 12. Brown argues the trial court lacked jurisdiction to try him because it had dismissed the charges two days before trial. Alternatively, Brown contends that even if the court properly treated his motion as a PCRA petition, the court erred in concluding the petition was untimely "in that [his] claim of double jeopardy is a non-waivable claim ... [which] has resulted in a miscarriage of justice." Id. at 19.
This claim originates from the fact that, after the jury was selected, the Commonwealth alerted the court that the complainant, who was a dependent minor, had been sent "back to Oklahoma" without notice. N.T., 1/22/2001, at 66. Although the parties discussed discharging Brown, the court, instead, "delayed the start of the trial until January 24, 2001 to give the Commonwealth time to secure the appearance of the complainant." Brown , supra , 32 A.3d 260 (unpublished memorandum at 6), quoting PCRA Court Order, 1/10/2011, at 1 n.1.
When reviewing an order dismissing a PCRA petition, we must determine whether the ruling of the PCRA court is supported by record evidence and is free of legal error. Commonwealth v. Burkett , 5 A.3d 1260, 1267 (Pa. Super. 2010). "Great deference is granted to the findings of the PCRA court, and these findings will not be disturbed unless they have no support in the certified record." Commonwealth v. Carter , 21 A.3d 680, 682 (Pa. Super. 2011) (citation omitted).
Upon our review of the record, the parties' briefs, and the relevant statutory and case law, we conclude that the PCRA court properly construed Brown's self-styled petition for habeas corpus as a PCRA petition, and determined the petition was untimely filed. See PCRA Court Opinion, at 3-5 (finding (1) the PCRA "subsumes the remedy of habeas corpus with respect to remedies offered under the PCRA[;]" (2) Brown's petition raised the claim that "he is serving an illegal sentence because the trial court allegedly lacked subject matter jurisdiction[;]" Brown's claim is cognizable under the PCRA; Brown's petition was not timely filed within one year of the date his sentence became final; Brown failed to plead or prove an exception to the timelines provision; and, therefore, the PCRA court had no jurisdiction to consider the merits of his claim). Accordingly, we rest on the court's well-reasoned basis.
PCRA Court Opinion, 3/25/2015, at 3, citing Commonwealth v . Peterkin , 722 A.2d 638, 640 (Pa. 1998).
Id.
We note, too, that the claim raised herein appears to be identical to that raised in his 2011 "Motion to Modify and Correct Docket," which the court also construed as a PCRA petition. See Brown , supra , 32 A.3d 260 (unpublished memorandum at 4) (noting Brown's claim was that the trial court "lacked jurisdiction to hear [his] case, where the Commonwealth failed to reinstate charges against him following the court's grant of nolle prosequi, rendering his subsequent convictions defective"). Therefore, even if we were to find the present petition was timely filed, the claim raised therein has been previously litigated, and he would be precluded from raising it again. See 42 Pa.C.S. § 9544(a)(3) (claim has been previously litigated if "it has been raised and decided in a proceeding collaterally attacking the conviction or sentence.").
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/29/2016
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