J-S36040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

JAMES MARIO PRIDGEN,

                            Appellant                    No. 2121 MDA 2015


                Appeal from the PCRA Order November 10, 2015
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0003471-1992

BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                            FILED APRIL 20, 2016


        Appellant appeals, pro se, the Order entered in the Court of Common

Pleas of Lancaster County on November 10, 2015, by the Honorable Jeffrey

D. Wright denying his most recent collateral petition styled as a petition for

writ of habeas corpus.        Treating the petition as one filed pursuant to the

Post-Conviction Relief Act1 (hereinafter “PCRA”), the PCRA court denied it for

Appellant’s failure to file a statement of matters complained of on appeal

pursuant to Pa.R.A.P. 1925(b).             Appellant also filed a document titled

“Motion for Remand” with this Court on March 22, 2016, wherein he asks

this Court to remand this matter to “allow the Common Pleas Court to

correct the unlawful conviction and sentence imposed in violation of a
____________________________________________


1
    42 Pa.C.S.A. §§ 9541-9546.



*Former Justice specially assigned to the Superior Court.
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substantive rule” in light of the United States Supreme Court’s recent

decision in Montgomery v. Louisiana, ___ U.S. ___, ____, 136 S. Ct. 718,

193 L. Ed. 2d 599 (2016).2 Motion for Remand, 3/22/16, at 1 (unnumbered).

Upon our review of the record, we affirm the order of the PCRA court and

deny Appellant’s motion.

       Following a jury trial, on July 22, 1993, Appellant was convicted of

Murder of the first degree3 in connection with a shooting death. Intending to

kill his female victim who successfully had ducked to avoid being hit by the

gunshot, Appellant shot and mortally wounded a male individual in Lancaster

in the early morning hours of November 8, 1992. Appellant accordingly was

sentenced to life in prison immediately following the verdict.     This Court

affirmed his judgment of sentence on June 14, 1995, and our Supreme

Court denied his petition for allowance of appeal on November 29, 1995.

Commonwealth v. Pridgen, 665 A.2d 1302 (Pa.Super. 1995) (unpublished

memorandum), appeal denied, 543 Pa. 692, 670 A.2d 141 (1995).

       Appellant filed his first PCRA petition on May 23, 1996.    Numerous

filings followed over the years, including three unsuccessful PCRA petitions

and two unsuccessful petitions for writ of habeas corpus. The petition giving
____________________________________________


2
  Therein, the United States Supreme Court held that its decision in Miller v.
Alabama, 567 U.S. ___, ____, 132 S. Ct. 2455, 2460, 183 L. Ed. 2d 407
(2012), prohibiting mandatory life sentences without the possibility of parole
for juvenile offenders, announced a new substantive rule of federal
constitutional law that must be applied by the states retroactively.
3
  18 Pa.C.S.A. 2502(a).



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rise to the instant appeal originated as a habeas corpus petition and was

filed on October 9, 2015.        Therein, Appellant essentially averred his

detention is unlawful because he has been convicted of “a charge not made

in Criminal Information No, 3471-1992 in violation of due process clauses

under the State and Federal Constitutions.”      He further claimed his issue

presented “does not have anything to do with the truth determining process

of the states’ Post Conviction Relief Act (PCRA) addresses [sic].”          Writ of

Habeas Corpus, 10/9/15, at ¶¶ 2-3.

      The PCRA court treated Appellant’s habeas corpus petition as a PCRA

petition which it dismissed on November 10, 2015, following the proper

issuance of its notice of intention to deny the petition without an evidentiary

hearing pursuant to Pa.R.Crim.P. 907.       Appellant filed a timely notice of

appeal with this Court, and in its Order of December 8, 2015, the PCRA court

directed Appellant to file a statement of matters complained of on appeal.

Appellant never filed such a statement, and for this reason, in its Opinion

filed pursuant to Pa.R.A.P. 1925(a), the trial court requested this Court to

affirm its November 10, 2015, Order.

      In his brief, Appellant raises the following issues for our review.


      1.    Whether a Criminal Information not charging (containing)
      the essential statutory elements for which the conviction is
      based on constitutes a material fact?
      2.    Whether a conviction based upon essential statutory
      elements of a[n] offense not charged (contained) in the criminal
      information is consistent with State and Federal Constitutions



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      regarding due process and equal protection, and Eight [sic]
      Amendment?
      3.    Whether the State Court turning habeas corpus into a
      PCRA to exercise a jurisdictional exception and time bar is being
      improperly utilized to give validity to a conviction based upon
      essential statutory elements of a[n] offense not charged
      (contained) in the criminal information?

Appellant’s Brief at 4 (unnumbered).

      Initially, we find the trial court properly treated Appellant’s habeas

corpus petition as a PCRA petition, for the PCRA subsumes the right to

petition for writs of habeas corpus. See 42 Pa.C.S.A. § 9542. Our Supreme

Court has ruled that where the relief requested is available under the PCRA,

a PCRA petition is the only vehicle available for one to obtain such relief and

any petition otherwise styled must be treated as a PCRA petition.         See

Commonwealth v. Eller, 569 Pa. 622, 807 A.2d 838 (2002). In addition,

42 Pa.C.S.A. § 6503(b) specifically prohibits the use of a petition for habeas

corpus where a remedy is available under the PCRA.            42 Pa.C.S.A. §

6503(b)(stating”[w]here a person is restrained by virtue of sentence after

conviction for a criminal offense, the writ of habeas corpus shall not be

available if a remedy may be had by post-conviction hearing proceedings

authorized by law”).

      As he had done in previous petitions, Appellant attempted herein to

cast his petition for writ of habeas corpus as raising issues not subsumed by

the PCRA and, therefore, not subject to its time limits. In support of his

doing so, he asserts in his appellate brief that the criminal information did


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not contain “the essential statutory elements of willful, deliberate, and

premeditated, which the present conviction is based upon.” Appellant’s Brief

at 6 (unnumbered).       Such a claim concerning a defect in the criminal

information clearly affects an accused’s ability to defend, and it follows that

it affects the truth-determining process; thus, Appellant could have sought

relief under the PCRA.     See 42 Pa.C.S.A 9543(a).       As such, his writ of

habeas corpus is subsumed, and for the reasons that follow, we find

Appellant’s petition was untimely filed and properly dismissed.

      “Our standard of review of the denial of PCRA relief is clear; we are

limited to determining whether the PCRA court’s findings are supported by

the record and without legal error.”    Commonwealth v. Wojtaszek, 951
A.2d 1169, 1170 (Pa.Super. 2008) (quotation and quotation marks omitted).

Pennsylvania law makes it clear that no court has jurisdiction to hear an

untimely PCRA petition. Commonwealth v. Robinson, 575 Pa. 500, 837
A.2d 1157 (2003).     The most recent amendments to the PCRA, effective

January 19, 1996, provide that a PCRA petition, including a second or

subsequent petition, shall be filed within one year of the date the underlying

judgment becomes final. 42 Pa.C.S.A. § 9545(b)(1). A judgment is deemed

final “at the conclusion of direct review, including discretionary review in the

Supreme Court of the United States and the Supreme Court of Pennsylvania,

or at the expiration of the time for seeking review.” 42 Pa.C.S.A. §

9545(b)(3).


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      The three statutory exceptions to the timeliness provisions in the PCRA

allow for very limited circumstances under which the late filing of a petition

will be excused. 42 Pa.C.S.A. § 9545(b)(1).       To invoke an exception, a

petition must allege and the petitioner must prove:

      (i)      the failure to raise a claim previously was the result of
               interference    by    government     officials with    the
               presentation of the claim in violation of the Constitution
               or the law of this Commonwealth or the Constitution or
               law 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 Pennsylvania after
               the time period provide in this section and has been
               held by that court to apply retroactively.

42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

      “We emphasize that it is the petitioner who bears the burden to allege

and prove that one of the timeliness exceptions applies.” Commonwealth

v. Marshall, 596 Pa. 587, 596, 947 A.2d 714, 719 (2008) (citation

omitted). Moreover, as this Court has often explained, all of the time-bar

exceptions are subject to a separate deadline. Our Supreme Court has held

that any petition invoking an exception must show due diligence insofar as

the petition must be filed within 60 days of the date the claim first could

have been presented. Commonwealth v. Edmiston, 619 Pa. 549, 65 A.3d
339 (2013).




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      Herein, our Supreme Court denied Appellant’s petition for allowance of

appeal on November 29, 1995; therefore, his judgment of sentence became

final ninety days thereafter, on February 27, 1996, when the time for filing a

petition for writ of certiorari with the United States Supreme Court expired.

See 42 Pa.C.S.A. § 9545(b)(3). As the instant petition was not filed until

October 19, 2015, it is patently untimely.      Commonwealth v. Gamboa-

Taylor, 562 Pa. 70, 753 A.2d 780 (2000) (holding a PCRA petition filed

more than one year after judgment of sentence becomes final is untimely

and the PCRA court lacks jurisdiction to address the petition unless the

petitioner pleads and proves statutory exception to PCRA time-bar).

Furthermore, Appellant has not explicitly plead any of the exceptions to the

PCRA time bar as is required to invoke one of those exceptions and to

preserve an otherwise untimely petition. See 42 Pa.C.S.A. § 9545(b)(1)(i-

iii); Commonwealth v. Beasley, 559 Pa. 604, 741 A.2d 1258 (1999).

      Thus, while the trial court dismissed Appellant’s petition for his failure

to timely file a 1925(b) statement, it is clear that even if all of the Pa.R.A.P.

1925 requirements had been met, the PCRA court had no jurisdiction to hear

the petition due to its untimeliness. Therefore, we conclude the PCRA court

did not err when it dismissed Appellant's petition without holding a hearing.

See Commonwealth v. Cassidy, 462 A.2d 270, 272 (Pa.Super. 1983)

(holding that the Superior Court “will affirm the trial court's decision if the




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result is correct on any ground, without regard to the grounds on which the

trial court relied”).

      This does not end our inquiry, however, for Appellant has since filed

with this Court a Motion for remand on March 16, 2016, wherein he requests

this Court to remand the matter to “allow the Common Pleas Court to

correct the unlawful conviction and sentence imposed in violation of a

substantive rule.” Appellant states the “Constitution” provides a state may

not enforce a “conviction and sentence upon elements of a charge not made”

and provides what he presents as the following brief quotations from the

Supreme Court‘s decision of January 25, 2016, in Montgomery, supra:

            “.., that a court has no authority to leave in place a
      conviction or sentence that violates a substantive rule, ..”. and
      “There is no grandfather clause that permits States to enforce
      punishments the Constitution forbids.”. also “,..no resources
      marshalled by a State could preserve a conviction or sentence
      that the Constitution deprives the State of power to impose.”.

Motion for Remand, 3/22/16, at 1 (unnumbered).

      To the extent Appellant claims he is entitled to relief under 42

Pa.C.S.A. § 9545(b)(1)(ii)’s newly-discovered fact exception, our Supreme

Court has previously described a petitioner’s burden thereunder as follows:

      [Section 9545](b)(1)(ii) has two components, which must be
      alleged and proved. Namely, the petitioner must establish that:
      1) “the facts upon which the claim was predicated were
      unknown” and 2) “could not have been ascertained by the
      exercise of due diligence.” 42 Pa.C.S. § 9545(b)(1)(ii) (emphasis
      added).




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Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264, 1272

(2007) (emphasis in original). “Due diligence demands that the petitioner

take reasonable steps to protect his own interests. A petitioner must explain

why he could not have learned the new fact(s) earlier with the exercise of

due diligence. This rule is strictly enforced.” Commonwealth v. Williams,

35 A.3d 44, 53 (Pa.Super. 2011) (citation omitted). However, judicial

opinions are not newly-discovered facts for the purposes of Section

9545(b)(1)(ii).   Commonwealth v. Watts, 611 Pa. 80, 23 A.3d 980

(2011).

      In any event, to the extent Appellant’s statements may aver Section

9545(b)(1)(ii) is satisfied on the basis that the “newly-discovered fact” is his

illegal and unconstitutional sentence in light of the Pennsylvania Supreme

Court’s recent decision in Montgomery, Appellant presents nothing more

than the bald aforesaid assertions to support a claim that case is dispositive

herein. This Court has held, “in order for this Court to review a legality of

sentence claim, there must be a basis for our jurisdiction to engage in such

review.” Commonwealth v. Miller, 102 A.3d 988, 995 (citation omitted).

As stated previously, the Supreme Court in Montgomery held that its

decision in Miller v. Alabama, 567 U.S. ___, ____, 132 S. Ct. 2455, 2460,

183 L. Ed. 2d 407 (2012), prohibiting mandatory life sentences without the

possibility of parole for juvenile offenders announced a new, retroactive

substantive rule of federal constitutional law.   Appellant was almost thirty


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years old when he murdered the victim. As such, that holding clearly is not

dispositive herein.

      Moreover, even assuming, arguendo, Appellant’s sentence was illegal

from its inception, and not just allegedly from the date of the decision

rendered in Montgomery, Appellant must prove the applicability of one of

the above-stated timeliness exceptions in order for this Court to have

jurisdiction to correct the illegal sentence.   See Miller, supra.   Appellant

simply has not done so.

      Appellant’s PCRA petition is untimely, and he has proven no exception.

Therefore, the courts lack jurisdiction to consider the merits of the issues,

including legality of sentence, presented in Appellant’s petition.

      Order affirmed. Motion denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/20/2016




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