Com. v. Powell, H.

J-S41031-22

2023 PA Super 26

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

:

:

v. :

:

:

HOWARD OMAR POWELL : No. 699 MDA 2022

:

Appellant :

:

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Appeal from the Order Entered March 9, 2022

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

No(s): CP-54-CR-1079-2000

BEFORE: LAZARUS, J., MURRAY, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED FEBRUARY 17, 2023

Appellant, Howard Omar Powell, appeals from the order entered in the

Court of Common Pleas of Schuylkill County that dismissed as meritless his

“Writ of Praecipe for Petition for Writ of Habeas Corpus”, in which he asserted

he has served more than 20 years’ incarceration on an illegal 20 to 40-year

sentence imposed on his conviction of a Criminal Attempt Murder-Serious

Bodily Injury1 charge that was neither included in the Criminal Information

filed against him nor submitted to the jury. For reasons that follow, we affirm

the order denying relief, albeit on different grounds than set forth below, as

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 901(a).

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we treat Appellant’s petition as an untimely serial Post Conviction Relief Act

(“PCRA”)2 petition.3

In 2001, a jury convicted Appellant of Attempted First-Degree Murder;

Aggravated Assault, Infliction of Serious Bodily Injury by use of a deadly

weapon (firearm); Robbery, Infliction of Serious Bodily Injury; Conspiracy to

commit robbery; and related charges.4 These charges arose from Appellant’s

robbery of a gas station attendant, Nirmal Singh, in the late-night hours of

March 7, 2000, during which Appellant twice shot Singh with a .38 handgun.

On May 23, 2001, Appellant received an aggregate sentence of 27 to 54 years'

incarceration, which comprised, inter alia, a sentence of not less than 20 years

and no more than 40 years on his conviction for Attempted First Degree

Murder by application of 18 Pa.C.S. § 1102(c). 5

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2 42 Pa.C.S.A §§ 9541-9546.

3 Appellant unilaterally re-captioned his appeal to this Court as, “Howard

Powell v. George Miller, Schuylkill County Court of Common Pleas, Judge

Jacqueline L. Russell and Schuylkill County District Attorney’s Office”, even

though the lower court had changed the caption to “Commonwealth v. Howard

Omar Powell” and placed the matter on its criminal docket. Because we

conclude, infra, that Appellant’s petition is properly analyzed as one subject

to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546 and its

timeliness provisions, we have changed the caption to reflect this status.

4 18 Pa.C.S. §§ 901/2502(a), 2702, 3701 and 903/3701, respectively.

5 Section 1102(c) of the Crimes Code provides, “a person who has been

convicted of attempt ... to commit murder ... where serious bodily injury

results may be sentenced to a term of imprisonment which shall be fixed by

the court at no more than 40 years. Where serious bodily injury does not

result, the person may be sentenced to a term of imprisonment which shall

(Footnote Continued Next Page)

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In the ensuing 20 years, Powell has filed a direct appeal and seven

petitions under the PCRA at least one of which Appellant had originally entitled

a “Petition for Writ of Habeas Corpus” until this Court construed it as a PCRA

petition raising a challenge implicating the legality of his sentence.6 Each

time, our courts have determined the appeals were without merit. The instant

habeas corpus petition at issue, if it were cognizable under the PCRA, would

represent his eighth PCRA petition.

On January 25, 2021, Appellant filed the instant pro se “Writ of Praecipe

for Petition for Writ of Habeas Corpus” in which he argued that his substantive

due process rights to be free from deprivation of liberty without due process

under Article I, Section 9 of the Pennsylvania Constitution were violated when

the sentencing court imposed a 20 to 40-year sentence for Attempted Murder

with Serious Bodily Injury pursuant to Section 1102(c). See Petition, at 6.7

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be fixed by the court at not more than 20 years.” 18 Pa.C.S.A. § 1102(c).

6 Notably, in Appellant’s sixth PCRA petition he claimed his sentence was illegal

because, inter alia, he was not charged with attempted murder under 18

Pa.C.S. § 1102(a) (applying a 20 to 40-year sentence upon proof beyond a

reasonable doubt that the defendant caused serious bodily injury) and that

the mandatory minimum aspect of his sentence was, therefore, void pursuant

to Alleyne v. United States, 133 S.Ct. 2151 (2013). See Commonwealth

v. Powell, 1374 MDA 2014, 2015 WL 7299805 (Pa. Super. filed April 10,

2015). As noted infra, we did not address this claim on the merits because it

was raised in an untimely PCRA appeal.

7 We note the following regarding relief under habeas corpus:

When a petitioner is in custody by virtue of a judgment of sentence

of a court of competent jurisdiction, the writ generally will not

(Footnote Continued Next Page)

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In the same petition, Appellant also asserted that the jury was never asked to

determine whether serious bodily injury occurred in conjunction with the

attempted murder and that the Criminal Information “did not allege that [he]

caused serious bodily injury to [the victim] in connection with the attempted

murder charge.” See Petition at 6-7.

Although the lower court deduced that Appellant sought a Writ of Habeas

Corpus primarily to circumvent the timeliness requirements of the PCRA, it

concluded, nevertheless, that one of Appellant’s claims resided outside the

ambit of the PCRA, namely, his claim that he was serving a 20 to 40-year

sentence for the crime of Criminal Attempt of Murder with Serious Bodily

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lie. Commonwealth ex rel. Wilson v. Keeper of the Jail of

Philadelphia County, 26 Pa. 279, 280 (1856). The rationale for

this limitation is the presumption of regularity which follows the

judgment. Commonwealth ex rel. Spencer v. Ashe, 364 Pa.

442, 71 A.2d 799 (1950); see Commonwealth ex rel.

DeSimone v. Cavell, 185 Pa.Super. 131, 138 A.2d 688 (1958).

The writ, as stated above, is an extraordinary remedy and,

therefore, a judgment rendered in the ordinary course is beyond

the reach of habeas corpus. That conviction cannot be put

aside lightly, and it becomes stronger the longer the

judgment stands. Commonwealth ex rel. Hoch v.

Banmiller, 186 Pa.Super. 57, 140 A.2d 625 (1958).

Consequently, habeas corpus generally is not available to

review a conviction which has been affirmed on appeal.

Commonwealth ex rel. Dugan v. Day, 180 Pa.Super. 643, 122

A.2d 90 (1956).

Joseph v. Glunt, 96 A.3d 365, 372 (Pa. Super. 2014) (quoting

Commonwealth v. Wolfe, 605 A.2d 1271, 1272–73 (1992)) (emphasis

added).

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Injury despite the fact that the Criminal Information did not specify serious

bodily injury as an element of the charge. Ultimately, however, the lower

court rejected Appellant’s habeas claim on the merits and entered its February

1, 2022, order denying Appellant’s pro se Petition for Writ of Habeas Corpus.

Appellant filed a pro se motion for reconsideration on February 13, 2022, but

the lower court denied his motion by its order of March 9, 2022.

On April 27, 2022, Appellant filed a pro se notice of appeal. Upon

docketing statement review, this Court issued to Appellant a show-cause order

on June 9, 2022, requesting a response explaining why his ostensibly untimely

appeal should not be quashed given that the presumptively appealable order

was the February 1, 2022, order denying his petition for writ of habeas corpus.

See Gardner v. Consolidated Rail Corp., 100 A.3d 280, 283 (Pa. Super.

2014) (citation omitted) (The mere filing of “a motion for reconsideration,

unless expressly granted within the thirty-day appeal period, does not toll the

time period for taking an appeal from a final, appealable order.”). Appellant

filed a response on June 27, 2022, in which he asserted that the lower court’s

February 1, 2022, order did not inform him of his appeal rights and that if he

had been properly informed, he would have filed a notice of appeal rather than

his February 13, 2022, motion for reconsideration.

For its part, the lower court has filed its July 27, 2022, “Statement in

Lieu of Opinion” asserting that Appellant’s patent failure to file a timely appeal

warrants dismissal of the present matter. While the trial court acknowledges

“that the failure to file a timely appeal ‘as a result of a breakdown in the court

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system’ is an exception to the 30-day time requirement set forth in Pa.R.A.P.

903(a),8 see Commonwealth v. Stansbury, 219 A.3d 157 (Pa. Super.

2019) (citing Commonwealth v. Braykovich, 664 A.2d 133, 136-38 (Pa.

Super. 1995))[,]” it opines that “no such exception exists in this case.” Trial

Court Opinion, 7/27/22, at 1-2.

Our independent review of the record reveals that Appellant’s pro se

notice of appeal was received by this Court’s Prothonotary’s Office on April 27,

2022, 76 days after the trial court’s February 1, 2022, Order denying his

Petition for Writ of Habeas Corpus relief and 48 days after the lower court’s

March 9, 2022, Order denying Appellant’s February 13, 2022, pro se “Petition

for Re-Argument of Habeas Corpus” (which the court treated as Appellant’s

Motion for Reconsideration). Notably, the record indicates that Appellant

received copies of the respective court orders in this regard. See Pa.R.A.P.

108(a)(1) (appeal period begins to run on the date the clerk of courts “mails

or delivers copies of the order to the parties”).

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8 Pennsylvania Rule of Appellate Procedure 903(a) provides that a notice of

appeal “shall be filed within 30 days after the entry of the order from which

the appeal is taken.” Pa.R.A.P. 903(a). “The timeliness of an appeal and

compliance with the statutory provisions granting the right to appeal implicate

an appellate court's jurisdiction and its competency to act,” and “[a]bsent

extraordinary circumstances, an appellate court lacks the power to extend the

time provided ... for taking an appeal.” Commonwealth v. Williams, 106

A.3d 583, 587 (Pa. 2014). Accordingly, one’s failure to appeal timely from an

order “generally divests the appellate court of its jurisdiction to hear the

appeal.” Id.

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Therefore, even if we were to assume that Appellant filed his notice of

appeal with prison authorities on April 20, 2022, which is the hand-written

date that appears on his pro se notice of appeal,9 and that the 30-day appeal

clock commenced only after the lower court had expressly accepted

Appellant’s pro se motion for reconsideration/re-argument and thereafter

denied it by the court’s March 9, 2022,10 Appellant’s notice of appeal still would

have been untimely filed 42 days after the March 9, 2022, order. Moreover,

during this Court’s correspondence with Appellant regarding the ostensible

untimeliness of his appeal, Appellant made no allegation that his receipt of the

lower court’s March 9, 2022, order dismissing his petition for

reconsideration/reargument was unduly delayed such that it denied him a fair

opportunity to file a timely notice of appeal to this Court. See Jones, 700

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9 “[F]or prisoners proceeding pro se, a notice is deemed filed as of the date it

is deposited in the prison mail system. This is known as the ‘prisoner mailbox

rule.’ “Commonwealth v. Cooper, 710 A.2d 76, 78 (Pa. Super. 1998)

(citing Commonwealth v. Jones, 700 A.2d 423, 426 (Pa. 1997)) (internal

citations omitted). “Whether [an] appellant actually deposited the notice in

the prison mail system by [the date in question] is a factual question. Our

Supreme Court has provided a non-exhaustive list of the types of evidence

a pro se prisoner may present to prove that he mailed a notice of appeal within

the deadline. Our Supreme Court has also clearly stated that “we are inclined

to accept any reasonably verifiable evidence of the date that the prisoner

deposits the appeal with the prison authorities.” Id. In this vein, we may

regard a self-dated notice of appeal as “plausible” evidence of mailing

under Cooper, particularly where the opposing party does not contest such a

date.

10The docket sheet indicates that a copy of the lower court’s order denying

Appellant’s Motion for Reconsideration was mailed to Appellant on March 9,

2022.

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A.2d at 426 (observing that appellants bear the burden to prove the timeliness

of their appeals).

To the extent Appellant was seeking the civil remedy of habeas corpus

relief, therefore, we would conclude his failure to file a timely notice of appeal

deprives this Court of jurisdiction to review his appeal. See Pa.R.A.P. 105(b)

(stating that while an appellate court may enlarge the time where justice may

so require, “the court may not enlarge the time for filing a notice of appeal, a

petition for allowance of appeal, a petition for permission of appeal, or a

petition for review.”).

If Appellant’s habeas corpus petition, instead, were construed properly

as one raising issues predicated upon legality of sentencing claims cognizable

under the PCRA, and understanding, further, that Appellant never received

the equivalent of Pa.R.Crim.P. 907 notice of either the court’s intention to

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dismiss or of his 30-day appeal time-limit,11, 12 we still would conclude that

neither the lower court nor this Court has jurisdiction to consider Appellant’s

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11 We understand, of course, that the lower court did not provide Rule 907

notice because it construed Appellant’s petition as a habeas petition. As noted

supra, Appellant maintains that he would have filed a timely notice of appeal

rather than his motion for reconsideration—which he filed 12 days after the

trial court’s order denying his requested relief—if the trial court had supplied

him with notice that he had 30 days from the denial of his petition for writ of

habeas corpus in which to file a notice of appeal. On this point, we observe

that in the context of the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§

9541-9546, Pennsylvania Rule of Criminal Procedure 907(4) provides that

when a PCRA petition is dismissed without a hearing,

the judge promptly shall issue an order to that effect and shall

advise the defendant by certified mail, return receipt requested,

of the right to appeal from the final order disposing of the petition

and of the time limits within which the appeal must be filed. The

order shall be filed and served as provided in Rule 114.

Pa.R.Crim.P. 907(4).

12 This Court has held:

Jurisdiction is vested in the Superior Court upon the filing of a timely

notice of appeal. “An order granting, denying, dismissing, or otherwise

finally disposing of a petition for post-conviction collateral relief shall

constitute a final order for purposes of appeal.” Pa.R.Crim.P. 910. A

final order is one that ends the litigation or disposes of the entire case.

An appellant has a period of thirty days after the entry of an order

during which an appeal on that order can be taken. Commonwealth

v. Jerman, 762 A.2d 366, 368 (Pa. Super. 2000); Pa.R.A.P. 903(a).

Commonwealth v. Liebensperger, 904 A.2d 40, 43 (Pa. Super. 2006)

(some quotation marks and quotations omitted).

The appeal period does not begin to run until the date the Clerk of Courts

notes the date of service on the docket. See Pa.R.Crim.P. 114(c)(2)(c)

(docket entries “shall contain” the “date of service of the order”);

Pa.R.Crim.P. 907(4) (indicating that an order dismissing a petition without a

(Footnote Continued Next Page)

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petition, because Appellant has presented his claim more than one year after

his judgment of sentence became final, and he failed, otherwise, to invoke

any exception to the statutory time-bar at Section 9541(a)(1)(i-iii).

It is well-established that the timeliness of a PCRA petition is

jurisdictional and that if the petition is untimely, courts lack jurisdiction over

the petition and cannot grant relief. Commonwealth v. Wharton, 584 Pa.

576, 886 A.2d 1120, 1124 (2005); see also Commonwealth v. Callahan,

101 A.3d 118, 121 (Pa. Super. 2014) (holding, courts do not have jurisdiction

over an untimely PCRA petition). Any PCRA petition, including second and

subsequent petitions, must either (1) be filed within one year of the judgment

of sentence becoming final, or (2) plead and prove a timeliness exception. 42

Pa.C.S.A. § 9545(b). Id.

Furthermore,

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hearing “shall advise the defendant...of the time limits within which the appeal

must be filed.”); Pa.R.A.P. 108(a)(1), (d)(1) (the appeal period only begins

running on the date the Clerk “mails or delivers copies of the order to the

parties”).

Accordingly, when there is a docketing failure or lack of notice, this Court

will excuse an untimely appeal. See Jerman, supra (finding a breakdown in

the PCRA court and deeming the PCRA petitioner's appeal timely where Clerk

failed to notify the petitioner of the order denying collateral

relief); Braykovich, supra (discussing cases and holding failure of Clerk of

Courts to advise the defendant that his post-sentence motion had been denied

by operation of law excused late-filed appeal).

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“the PCRA is intended to be the sole means of achieving post-

conviction [collateral] relief.” Commonwealth v. Taylor, 65

A.3d 462, 465 (Pa. Super. 2013).

If an issue is cognizable under the PCRA, the issue must be raised

in a timely PCRA petition and cannot be raised in a petition for writ

of habeas corpus. Id. at 465-466 (stating that, “[u]nless

the PCRA could not provide for a potential remedy, the PCRA

statute subsumes the writ of habeas corpus” (citation omitted)).

In other words, “a defendant cannot escape the PCRA time-bar by

titling his petition or motion as a writ of habeas corpus.” Id. at

466. Moreover, regardless of how a petition is titled, courts are

to treat a petition filed after a judgment of sentence becomes final

as a PCRA petition if it requests relief contemplated by the PCRA.

Commonwealth v. Wrecks, 934 A.2d 1287, 1289 (Pa. Super.

2007); see also Commonwealth v. Torres, 223 A.3d 715, 716

(Pa. Super. 2019) (stating, “so long as a pleading falls within the

ambit of the PCRA, the court should treat any pleading filed after

the judgment of sentence is final as a PCRA petition” (citation

omitted)); Commonwealth v. Hromek, 232 A.3d 881, 884 (Pa.

Super. 2020) (affirming the Wrecks’ holding that regardless of

how a filing is titled, a petition should be treated as filed under

the PCRA if it is filed after the judgment of sentence becomes final

and seeks relief provided under the PCRA). This Court

in Taylor, supra, held that a petition challenging the legality

of sentence on the grounds the sentence exceeded the statutory

limit was “undoubtedly cognizable under the PCRA” and,

therefore, any such petition regardless of its title was to be

treated as a PCRA petition. Taylor, 65 A.3d at 467; see also 42

Pa.C.S.A. § 9543(a)(2)(vii) (stating that, to be eligible for relief

under the PCRA, the petitioner must plead and prove by a

preponderance of the evidence that the sentence resulted from

the “imposition of a sentence greater than the lawful maximum”).

Commonwealth v. Fantauzzi, 275 A.3d 986, 994–95 (Pa. Super. 2022).

Appellant’s petition asserted that his current imprisonment has

extended unconstitutionally beyond 20 years. Specifically, he maintained that

the 20 to 40-year sentence he currently serves is based on his conviction of a

charge that was not included in the criminal information filed against him.

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This Court has previously viewed such a claim as implicating the legality of

one’s sentence.

In Commonwealth v. Barnes, 167 A.3d 110, 117 (Pa. Super. 2017)

(en banc), this Court held that the imposition of a Section 1102(c) 40–year

maximum sentence was illegal where the Commonwealth did not charge

Barnes with attempted murder resulting in serious bodily injury, Barnes “was

not on notice that the Commonwealth sought to prove that a serious bodily

injury resulted from attempted murder or to invoke the greater maximum

sentence,” and “most importantly for purposes of Apprendi [v. New Jersey,

530 U.S. 466, 120 S.Ct. 2348 (2000)], the jury was never presented with, nor

rendered a decision on, the question of whether a serious bodily injury

resulted from the attempted murder.” 167 A.3d at 118–19.

Because Appellant’s present claim, therefore, is predicated upon a

legality of sentencing claim cognizable under the PCRA, Appellant was required

either to raise it with the lower court within one year after his judgment of

sentence became final or to establish how it qualifies for an exception from

the PCRA time-bar. See Commonwealth v. Seskey, 86 A.3d 237, 242 (Pa.

Super. 2014) (noting, “[t]hough not technically waivable, a legality [of

sentence] claim may nevertheless be lost should it be raised . . . in an untimely

PCRA petition for which no time-bar exception applies, thus depriving the court

of jurisdiction over this claim.”). Having failed to do either, Appellant’s claim

is untimely, and the lower court was without jurisdiction to entertain it.

For the foregoing reasons, we affirm.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/17/2023

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