The opinion
J-S59017-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK BROWN :
:
Appellant : No. 802 EDA 2019
Appeal from the PCRA Order Entered March 5, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0306772-1990
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 20, 2020
Appellant Mark Brown appeals pro se from the order denying his petition
for writ of habeas corpus.1 Appellant argues that the trial court abused its
discretion by denying his request for clarification of his sentence. We affirm.
We previously summarized the underlying facts and procedural history
of this matter as follows:
In 1990, a jury convicted Appellant of first-degree murder, arson,
and engaging in activities of corrupt organizations. In 1994,
Appellant was sentenced to life imprisonment for murder, and to
a consecutive prison sentence of forty-three to eighty-six months
on the corrupt organizations charge. We affirmed the judgment
of sentence on April 5, 1995. Appellant did not seek review by
the Supreme Court of Pennsylvania. Appellant thereafter filed
several PCRA petitions, none of which were successful.
____________________________________________
1 As discussed below, the trial court initially dismissed Appellant’s petition as
a serial untimely Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546
petition.
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Appellant did have success, however, in federal court: in 2008,
Appellant filed a pro se petition for a writ of habeas corpus in the
United States District Court for the Eastern District of
Pennsylvania. As a result of that petition, the District Court issued
an order instructing that Appellant’s conviction for violating the
corrupt organizations law be vacated and Appellant be
resentenced without regard to that charge.
* * *
In December 2010, Appellant was again sentenced, following a
hearing, to life imprisonment for first-degree murder.
Appellant appealed from his 2010 resentencing. He asserted that
the corrupt organizations charge adversely affected the evidence
presented against him at trial on the other two charges, and,
because his corrupt organizations conviction has since been
vacated, he should be awarded a new trial on the remaining
charges. On September 20, 2012, we affirmed the trial court’s
denial of a new trial, because
a claim for a new trial and challenges to the admission of
evidence are not within the scope of an appeal from
resentencing pursuant to a federal habeas corpus petition.
Guilt was established for the [murder and arson] charges in
1990, more than twenty years ago, and Appellant’s last
PCRA petition was dismissed in 2004. . . . [O]nly issues
pertaining to the resentencing procedure [can] be raised on
appeal from that resentencing.
Commonwealth v. Brown, 3007 EDA 2016 at 9 (Pa. Super. filed June 26,
2017) (unpublished mem.) (citation omitted) (some formatting altered).
Appellant subsequently filed an untimely PCRA petition, which the PCRA
court dismissed. On appeal, this Court affirmed the PCRA court’s ruling,
explaining that
Appellant’s conviction on the corrupt organizations charge has
been vacated through the federal habeas petition, Appellant has
consequently been resentenced by the trial court, and Appellant’s
PCRA petition comes within one year after that judgment became
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final. However, the finality of the convictions which Appellant
seeks to challenge has remained undisturbed since May 5, 1995,
when the period in which Appellant could have sought review by
the Pennsylvania Supreme Court expired and his direct appeal
concluded. Therefore, Appellant cannot now file a PCRA petition
raising errors unrelated to his resentencing. To allow otherwise
would thwart the jurisdictional timeliness requirements of the
PCRA.
Id. at 9.
On July 6, 2018, Appellant filed the instant pro se petition for writ of
habeas corpus seeking clarification of his sentence for first-degree murder.
Specifically, Appellant argued there was “ambiguity” in the statute under
which he was sentenced, as it “may or may not preclude eligibility for parole.”
Appellant’s Pet. for Writ of Habeas Corpus, 7/6/18, at 4.
The Commonwealth filed a response in which it agreed with Appellant
that his claim was not cognizable under the PCRA. However, the
Commonwealth argued that Appellant waived his habeas claim by failing to
raise it previously. Nonetheless, the Commonwealth asserted that Appellant’s
claim was meritless.
Initially, the trial court regarded Appellant’s petition as an untimely
PCRA petition. On January 31, 2019, the trial court issued a notice of intent
to dismiss Appellant’s petition pursuant to Pa.R.Crim.P. 907. The Rule 907
notice stated that (1) Appellant’s petition was untimely, (2) Appellant’s claims
had no arguable merit, and (3) Appellant’s claims were previously litigated.
See Trial Ct. Rule 907 Notice, 1/31/19. Appellant filed a pro se response on
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February 12, 2019, asserting that habeas corpus was the proper vehicle for
his claim. On March 5, 2019, the trial court dismissed Appellant’s petition.
On March 12, 2019, the trial court docketed Appellant’s pro se notice of
appeal. Appellant subsequently filed a timely court-ordered Pa.R.A.P. 1925(b)
statement. The trial court issued a Rule 1925(a) opinion asserting that
although Appellant raised a habeas claim, he waived the issue by failing to
raise it at sentencing, in a post-sentence motion, or on direct appeal. See
Trial Ct. Op., 4/15/19, at 6-7.
On appeal, Appellant raises one issue for our review:
Whether the trial court erred by denying Appellant’s petition for
writ of habeas corpus relief seeking clarification as to whether the
statute under which he was sentenced, 42 Pa.C.S. § 9711,
possessed an eligibility to apply for parole component?
Appellant’s Brief at 3 (some formatting altered).
Appellant argues that “[t]he statutes governing first degree murder
appear[] to have extreme flaws which directly [a]ffect the legality,
constitutionality, and applicability of the sentences imposed for such
convictions.” Id. at 8. Appellant acknowledges that an offender may be
sentenced to life without parole for first-degree murder. Id. at 7. However,
he notes that while Section 9714(a)(2) “specifies a sentencing condition of
‘without parole,’” for repeat offenders, Section 9711 “only authorizes a
sentence of life imprisonment, with no additional sentencing condition
preventing parole eligibility.” Id. Appellant does not explicitly claim that his
sentence exceeds the statutory maximum. Instead, he suggests that because
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Section 9711 does not mention parole, the legislature’s intent is unclear.
Therefore, Appellant argues that he is entitled to a writ of habeas corpus to
clarify whether he is eligible for parole. Id. at 11. Finally, Appellant asserts
that his issue is not waived, as “he was not informed on the record that failure
to [file a post-sentence motion] would affect his right to raise issues upon
appeal.” Id. at 9.
Initially, we must determine whether Appellant’s claim is cognizable
under the PCRA. This determination presents a question of law over which
our standard of review is de novo and our scope of review plenary.
Commonwealth v. Montgomery, 181 A.3d 359, 367 (Pa. Super. 2018) (en
banc), appeal denied, 190 A.3d 1134 (Pa. 2018).
“It is well-settled that the PCRA is intended to be the sole means of
achieving post-conviction relief. Unless the PCRA could not provide for a
potential remedy, the PCRA statute subsumes the writ of habeas corpus.”
Commonwealth v. Taylor, 65 A.3d 462, 465-466 (Pa. Super. 2013)
(citations omitted); see also 42 Pa.C.S. § 9542. Accordingly, if an issue is
“cognizable under the PCRA,” it “must be raised in a timely PCRA petition, and
cannot be raised in a habeas corpus petition.” Taylor, 65 A.3d at 466
(citations omitted).
Section 9543 defines the eligibility requirements for the PCRA and
provides that a petitioner may seek relief under the PCRA for “a conviction or
sentence” that resulted from one or more of the following:
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(i) A violation of the Constitution of this Commonwealth or the
Constitution or laws of the United States which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place.
(ii) Ineffective assistance of counsel which, in the circumstances
of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could
have taken place.
* * *
(vii) The imposition of a sentence greater than the lawful
maximum.
(viii) A proceeding in a tribunal without jurisdiction.
42 Pa.C.S. § 9543(a)(2)(i)-(ii), (vii)-(viii).
Even if a claim is not cognizable under the PCRA, it is well settled that
“[h]abeas corpus is an extraordinary remedy and is available after other
remedies have been exhausted or ineffectual or nonexistent. It will not issue
if another remedy exists and is available.” See Commonwealth v. Rouse,
191 A.3d 1, 6 (Pa. Super. 2018) (citation omitted). A habeas petition is not
a substitute for a direct appeal. See Com. ex rel. Ashmon v. Banmiller,
137 A.2d 236, 238 (Pa. 1958); Com. ex rel. Smith v. Cavell, 144 A.2d 505,
506 (Pa. Super. 1958). Therefore, challenges to a conviction or sentence that
could have been raised at trial or in a direct appeal are waived for purposes
of a habeas petition. See Com. ex rel. Brogan v. Banmiller, 136 A.2d 141,
142 (Pa. Super. 1957); accord Rouse, 191 A.3d at 7.
In Rouse, this Court addressed a petitioner’s claim that the second-
degree murder statute was “void for vagueness because it fails to give
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adequate notice that a sentence of life imprisonment is, in fact, life
imprisonment without the possibility of parole.” Id. at 2 n.1. Initially, the
trial court treated the petitioner’s filing as a PCRA challenging the legality of
his sentence. Id. On appeal, this Court held that the petitioner’s claim was
not cognizable under the PCRA. Id. The Rouse Court explained that
because [the petitioner’s] claim does not challenge the imposition
of a sentence in excess of the lawful maximum, it does not fall
under the purview of Section 9543(a)(2)(vii). And, to the extent
that Section 9543(a)(2)(vii) encompasses all illegal-sentencing
issues, [the petitioner’s] claim does not implicate any category of
illegal sentences previously recognized by Pennsylvania Courts.
Moreover, because [the petitioner’s] constitutional challenge to
Section 1102(b) does not implicate his guilt or innocence for the
underlying offense, his void-for-vagueness claim cannot arise
under the typical provision used to address constitutional errors,
Section 9543(a)(2)(i).
Rouse, 191 A.3d at 7.
Ultimately, the Rouse Court held that the petitioner’s claim, “just like
all claims (but for the three categories of illegal-sentencing claims), is subject
to waiver.” Id. at 6 (citation omitted). Further, because the petitioner could
have raised the issue “at his sentencing hearing, or in a post-sentence motion,
he failed to exhaust all available remedies before resorting to habeas corpus.”
Id. at 7.
Here, Appellant’s claim is properly regarded as a petition for writ of
habeas corpus. See id. When reviewing the denial of a claim for habeas
relief,
[o]ur standard of review . . . is limited to abuse of discretion.
Thus, we may reverse the court’s order where the court has
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misapplied the law or exercised its discretion in a manner lacking
reason. As in all matters on appeal, the appellant bears the
burden of persuasion to demonstrate his entitlement to the relief
he requests.
Rivera v. Pennsylvania Dep’t of Corr., 837 A.2d 525, 528 (Pa. Super.
2003) (citations omitted).
Here, the trial court addressed Appellant’s claim in its Rule 1925(a)
opinion as follows:
Appellant challenges his sentence of life imprisonment without the
possibility of parole for his conviction of first-degree murder. Our
Superior Court has recently addressed the propriety of bringing
that issue under the purview of a petition for a writ of habeas
corpus as opposed to the [PCRA] in [Rouse, 191 A.3d at 1]. [In
Rouse, the C]ourt determined that such a claim does not allege
that the sentence impermissibly exceeded the statutory maximum
and therefore was not one which falls within the meaning of
“illegal sentence” as defined in the PCRA statute. . . . As in Rouse,
this issue could have been raised at [Appellant’s] sentencing
hearing, in post-sentencing motions or in the several appeals filed
in this matter and [A]ppellant’s failure to do so constitutes a
waiver.
Trial Ct. Op. at 6-7.
Based on our review of the record, we agree with the trial court that
Appellant’s issue was not cognizable under the PCRA. See Montgomery, 181
A.3d at 367; see also Rouse, 191 A.3d at 7. Further as Appellant waived his
habeas claim by failing to raise it previously, we discern no reversible error in
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the trial court’s decision to deny relief.2 See Rivera, 837 A.2d at 528; see
also Rouse, 191 A.3d at 7. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/20/20
____________________________________________
2 To the extent Appellant argues that trial counsel failed to fully advise him of
his post-sentence or appellate rights, this claim is waived due to Appellant’s
failure to raise in in the trial court. See also Pa.R.A.P. 302(a) (stating that
“[i]ssues not raised in the lower court are waived and cannot be raised for the
first time on appeal”). Nonetheless, his claim would be cognizable under the
PCRA. Because Appellant did not establish an exception to the PCRA time-
bar, we would have no jurisdiction to address this issue. See 42 Pa.C.S. §
9545(b). Moreover, Appellant’s claim would be waived based on his failure to
raise the issue in his prior PCRA petitions. See 42 Pa.C.S. § 9544(b) (stating
that “an issue is waived if the petitioner could have raised it but failed to do
so . . . on appeal or in a prior state postconviction proceeding”).
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