Appeal from the Order Entered December 14, 2011 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0004477-2004
The opinion of the court was delivered by: Bowes, J.
BEFORE: STEVENS, P.J., BOWES, and FITZGERALD,*fn1 JJ.
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 Commonwealth v. Taylor, 919 A.2d 977 (Pa.Super. 2007) (unpublished memorandum).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, 931 A.2d 658 (Pa. 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 However, after the court discovered that Appellant's direct appeal was not complete, it promptly rescinded its order denying Appellant's PCRA petition.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 Commonwealth v. Taylor, 959 A.2d 469 (Pa.Super. 2008) (unpublished memorandum).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 Commonwealth v. Taylor, 990 A.2d 55 (Pa.Super. 2009) (unpublished memorandum).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. See 18 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:*fn2
(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 (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 seriously bodily injury, exceeded the statutory maximum of ten to twenty years.*fn3
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
notes that although illegal sentencing issues cannot be waived, they
still must be presented in a timely PCRA petition. Commonwealth v.
Fahy, 737 A.2d 214 (Pa. 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, 32 A.3d 697 (Pa. 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, 733 A.2d 1242 (Pa. 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, 722 A.2d 638 (Pa. 1998); see also Commonwealth v. Deaner, 779 A.2d 578 (Pa.Super. 2001) (a collateral petition that raises an issue that the PCRA ...