Commonwealth v. Taylor

• Decision Date: 19 April 2013
• Citation: 65 A.3d 462,2013 PA Super 89
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Thomas Duane TAYLOR, Appellant.
• Court: Pennsylvania Superior Court

65 A.3d 462

2013 PA Super 89

COMMONWEALTH of Pennsylvania, Appellee,

v.Thomas Duane TAYLOR, Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 28, 2013.

Filed April 19, 2013.

Thomas D. Taylor, appellant, pro se.

James B. Martin, District Attorney, Allentown, for Commonwealth, appellee.

BEFORE: STEVENS, P.J., BOWES, and FITZGERALD,^* JJ.

OPINION BY BOWES, J.:

Thomas Duane Taylor appeals from the order entered December 14, 2011, denying his serial post-conviction writ of habeas corpus, which we treat as an untimely PCRA petition and affirm, albeit on different grounds than set forth below.

A jury found Appellant guilty of attempted homicide, aggravated assault, and persons not to possess a firearm, after he shot his girlfriend in the head with a .22 caliber rifle. The trial court sentenced Appellant to eighteen to thirty-six years imprisonment on September 26, 2005, on the attempted homicide charge. The court also imposed a concurrent sentence of one and one-half to three years for the persons not to possess a firearm conviction. Appellant filed a timely direct appeal and a panel of this Court affirmed. Commonwealth v. Taylor, 919 A.2d 977 (Pa.Super.2007) (unpublished memorandum). Our Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Taylor, 593 Pa. 749, 931 A.2d 658 (2007).

While Appellant's direct appeal was pending, Appellant filed a writ of habeas corpus. The court treated the filing as a PCRA petition and appointed counsel. Counsel filed an amended petition, the court held a hearing and dismissed the petition. However, after the court discovered that Appellant's direct appeal was not complete, it promptly rescinded its order denying Appellant's PCRA petition. See Commonwealth v. Leslie, 757 A.2d 984 (Pa.Super.2000). Appellant, nonetheless, appealed. This Court affirmed the order rescinding the dismissal of Appellant's premature PCRA petition without prejudice to Appellant's ability to file a timely petition. Commonwealth v. Taylor, 959 A.2d 469 (Pa.Super.2008)(unpublished memorandum).

After the completion of Appellant's direct appeal, Appellant filed another pro se writ of habeas corpus. The court again treated the filing as a PCRA petition and appointed counsel, who submitted an amended petition. Following a hearing where no evidence was presented, the court dismissed the petition. Appellant appealed, and this Court affirmed. Commonwealth v. Taylor, 990 A.2d 55 (Pa.Super.2009)(unpublished memorandum). Thereafter, Appellant filed a series of post-conviction motions, which the court denied. No appeals were pursued on those filings. Instead, on December 7, 2011, Appellant filed the instant petition, again captioning it as a writ of habeas corpus. The court treated the habeas corpus motion as a motion to modify sentence under Pa.R.Crim.P. 720 rather than a PCRA petition. On December 14, 2011, the court dismissed the habeas corpus motion as an untimely post-sentence motion. This appeal ensued.

Appellant has failed to include within his brief a statement of the questions raised on appeal. Nonetheless, we have gleaned from the summary of argument and argument sections of his brief that he is asserting that the court sentenced him illegally. Specifically, Appellant contends that the pre-sentence report incorrectly indicated that he was convicted of attempted murder causing serious bodily injury when he was convicted of only the general crime of attempted murder. See18 Pa.C.S. § 1102(c). Citing 18 Pa.C.S. § 1102(c), Appellant alleges that his sentence of eighteen to thirty-six years is therefore illegal. At the time of Appellant's conviction, the statute read: ¹

(c) Attempt, solicitation and conspiracy to commit murder or murder of an unborn child.—Notwithstanding section 1103(1) (relating to sentence of imprisonment for felony), a person who has been convicted of attempt, solicitation or conspiracy to commit murder or murder of an unborn child where serious bodily injury results may be sentenced to a term of imprisonment which shall be fixed by the court at not more than 40 years. Where serious bodily injury does not result, the person may be sentenced to a term of imprisonment which shall be fixed by the court at not more than 20 years.

Since a finding of serious bodily injury increases the maximum sentence, it is an element of the offense and must be proved beyond a reasonable doubt. See generally Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The record reflects that the Commonwealth charged Appellant at count one of the criminal information with attempted homicide and, at count two, charged him with attempted homicide causing serious bodily injury. The jury verdict slip indicates that Appellant was convicted at count one of the criminal information, but not at count two, as the Commonwealth had withdrawn that charge before trial. Appellant also is correct that the pre-sentence report indicates Appellant was convicted of attempted homicide causing serious bodily injury. Thus, Appellant's sentence, if the jury did not determine he caused serious bodily injury, exceeded the statutory maximum of ten to twenty years.²

The Commonwealth contends that Appellant's filing was a PCRA petition and was untimely filed. It highlights that Appellant did not plead or prove that a timeliness exception applied. The Commonwealth correctly notes that although illegal sentencing issues cannot be waived, they still must be presented in a timely PCRA petition. Commonwealth v. Fahy, 558 Pa. 313, 737 A.2d 214 (1999). Since our Supreme Court and this Court construe the time-bar as jurisdictional, the Commonwealth maintains that the PCRA court lacked jurisdiction to decide the merits of Appellant's motion.

We agree that Appellant's writ of habeas corpus should be treated as a PCRA petition. It is well-settled that the PCRA is intended to be the sole means of achieving post-conviction relief. 42 Pa.C.S. § 9542; Commonwealth v. Haun, 613 Pa. 97, 32 A.3d 697 (2011). Unless the PCRA could not provide for a potential remedy, the PCRA statute subsumes the writ of habeas corpus. Fahy, supra at 223–224;Commonwealth v. Chester, 557 Pa. 358, 733 A.2d 1242 (1999). Issues that are cognizable under the PCRA must be raised in a timely PCRA petition and cannot be raised in a habeas corpus petition. See Commonwealth v. Peterkin, 554 Pa. 547, 722 A.2d 638 (1998); see also Commonwealth v. Deaner, 779 A.2d 578 (Pa.Super.2001) (a collateral petition that raises an issue that the PCRA statute could remedy is to be considered a PCRA petition). Phrased differently, a defendant cannot escape the PCRA time-bar by titling his petition or motion as a writ of habeas corpus.³

In Commonwealth v. Fowler, 930 A.2d 586 (Pa.Super.2007), the learned Judge, now Justice, McCaffery, collected cases and reiterated that all motions filed after a judgment of sentence is final are to be construed as PCRA petitions. Id. at 591 (citing Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa.Super.2002)); Commonwealth v. Evans, 866 A.2d 442 (Pa.Super.2005); Commonwealth v. Beck, 848 A.2d 987, 989 (Pa.Super.2004); Commonwealth v. Guthrie, 749 A.2d 502, 503 (Pa.Super.2000). More recently, in Commonwealth v. Jackson, 30 A.3d 516 (Pa.Super.2011), this Court held that a defendant's motion to correct his illegal sentence was properly addressed as a PCRA petition, stating broadly, “any petition filed after the judgment of sentence becomes final will be treated as a PCRA petition.” Id. at 521 (quoting Johnson, supra ).

We are, however, cognizant that in a one-page decision, a panel of this Court recently opined that a trial court may elect to treat a motion challenging a defendant's sentence, filed after the time for seeking direct review or the conclusion of a direct appeal, as an untimely post-sentence motion and not a PCRA petition. Commonwealth v. Glunt, 2012 PA Super 269, 61 A.3d 228. The defendant in Glunt framed the question as an illegal sentence and entitled his motion as a motion to vacate/correct illegal sentence. The Glunt panel referenced no case law in the body of the opinion and, insofar as it suggests a court may choose to treat a post-conviction sentencing motion as not falling within the strictures of the PCRA where the defendant's claim is that his sentence is illegal, it is contradicted by the numerous precedents mentioned supra and the language of the PCRA statute itself. See42 Pa.C.S. § 9542.

In a footnote, the Glunt Court did reference Commonwealth v. Wrecks, 931 A.2d 717 (Pa.Super.2007), and stated that the defendant could have sought relief under the PCRA. Id. at *1 n. 2. However, both Wrecks I and Commonwealth v. Wrecks, 934 A.2d 1287 (Pa.Super.2007)(“Wrecks II ”), support the holding that any motion filed after the finality of a sentence that raises an issue that can be addressed under the PCRA is to be treated as a PCRA petition. Wrecks I, supra at 720 (“The content of the motion-just exactly what is pled and requested therein—is relevant to deciding whether to treat the motion as a collateral petition.”); Wrecks II, supra at 1289 (“because Appellant's pro se filing does not request relief contemplated by the PCRA, the trial court was correct to treat Appellant's filing as a post-sentence motion and not a PCRA petition.”).

The Glunt decision offered no explanation for its departure from long-standing precedent in declining to treat the motion as an untimely PCRA petition, though in another footnote it indicated that the defendant's issue appeared to relate to the discretionary aspects of his sentence. Admittedly, in Wrecks II, a panel of this Court held that a bald discretionary sentencing claim is not cognizable under the PCRA statute and found an untimely post-sentence motion was not a PCRA petition.⁴

The Wrecks II Court appears to have disregarded that in Commonwealth v. Evans, 866 A.2d 442 (Pa.Super.2005), and Commonwealth v. Guthrie, 749 A.2d 502 (Pa.Super.2000), this Court...