Com. v. Mouzon, J. ( 2021 )

J-S31009-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEROME MOUZON :
:
Appellant : No. 317 EDA 2021
Appeal from the PCRA Order Entered January 4, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0402031-1998
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEROME MOUZON :
:
Appellant : No. 318 EDA 2021
Appeal from the PCRA Order Entered January 4, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0404131-1998
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEROME MOUZON :
:
Appellant : No. 319 EDA 2021
Appeal from the PCRA Order Entered January 4, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0409152-1998
J-S31009-21
BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY STABILE, J.: FILED DECEMBER 16, 2021
Appellant, Jerome Mouzon, appeals pro se from the January 4, 2021
orders entered in the Court of Common Pleas of Philadelphia County denying
his petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon review, we affirm.
The factual background and procedural history of this case are not at
issue. We set forth the facts underlying Appellant’s convictions on direct
appeal. See Commonwealth v. Mouzon, No. 2301 EDA 1999, at 1-3
(unpublished memorandum, filed May 23, 2001), reversed and remanded,
Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002). On remand from the
Supreme Court to consider the merits of Appellant’s challenge to the
discretionary aspects of his sentence, on July 1, 2003, we again affirmed
Appellant’s judgment of sentence. See Commonwealth v. Mouzon, 828
A.2d 1126 (Pa. Super. 2003). Appellant did not seek further review.
Appellant filed the underlying petition on July 17, 2018.1 The lower
court treated it as a PCRA petition and issued a notice of intent to dismiss it
without a hearing. See Notice Pursuant to Pennsylvania Rule of Criminal
Procedure 907, 10/22/20, at 1. On November 4, 2020, Appellant responded
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* Retired Senior Judge assigned to the Superior Court.
1 By Appellant’s own account, the instant petition is his fifth petition for PCRA
relief. See Appellant’s Brief at 5.
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to the notice. On January 4, 2021, the lower court dismissed Appellant’s
petition as untimely. This appeal followed.
On appeal, Appellant essentially argues that the sentencing court erred
in determining the proper offense gravity score for the offense that he
committed (robbery). Specifically, he argues that it should have been a
seven, not a ten. The claim was presented in a petition for writ of habeas
corpus. The lower court treated the challenge as a claim subject to the PCRA
and dismissed it as an untimely PCRA petition. We agree.
First, we must determine whether the lower court properly treated the
underlying petition (styled, as noted, as a petition for writ of habeas corpus)
as a PCRA petition. We conclude that it did.
A challenge to the determination of the offense gravity score is a
challenge to the discretionary aspects of his sentence.2 See, e.g.,
Commonwealth v. Lamoda, 52 A.3d 365, 371 (Pa. Super. 2012). On its
face, therefore, it would appear that the PCRA is not the proper vehicle for
addressing his claim. See, e.g., Commonwealth v. Fowler, 930 A.2d 586,
593 (Pa. Super. 2007); 42 Pa.C.S.A. § 9543(a)(2)(vii). However, at its core,
Appellant alleges that there is no evidence that the victims suffered “any injury
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2 In the underlying petition, Appellant argued that the offense gravity score
was erroneously calculated and that the sentencing court displayed judicial
bias in fashioning his sentence at the time of resentencing. See Petition for
Writ of Habeas Corpus, 7/18/18, at 2. The second claim, i.e., judicial bias, is
not raised before us. As such, we deem it abandoned.
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during the commission of the robberies, let alone serious bodily injury,
warranting an offense gravity score of seven (7) rather than the score of ten
(10) which was relied upon by the [trial court].” Appellant’s Brief at 7. As
such, Appellant is attacking his conviction and sentence, which is exactly what
the PCRA is intended to address. Accordingly, because Appellant’s claim
affects his conviction and sentence, and in light of the expansive view we must
take with regard to the PCRA’s eligibility requirements, see Commonwealth
v. Hackett, 956 A.2d 978, 986 (Pa. 2008), we conclude that the lower court
did not err in finding that Appellant’s claim is cognizable under the PCRA.3
“[A]n appellate court reviews the PCRA court’s findings of fact to
determine whether they are supported by the record, and reviews its
conclusions of law to determine whether they are free from legal error.”
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).
All PCRA petitions, “including a second or subsequent petition, shall be filed
within one year of the date the judgment becomes final” unless an exception
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3 Additionally, even if the lower court erred in not treating the underlying
petition as a petition for writ of habeas corpus, Appellant would not be entitled
to habeas corpus relief because: (i) “A challenge to the discretionary aspects
of sentencing is not a proper basis for habeas corpus relief.” Commonwealth
v. Wolfe, 605 A.2d 1271, 1274 (Pa. Super. 1992); and (ii) a writ of habeas
corpus cannot “be used to question the sufficiency or insufficiency of the
evidence to sustain a conviction.” Commonwealth v. Smythe, 195 A.2d
187, 189 (Pa. Super. 1963). Because habeas corpus relief is not available to
Appellant’s claim, we would have found that the lower court properly denied
his petition, had we determined that the filing was not rightfully a PCRA
petition.
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to timeliness applies. 42 Pa.C.S.A. § 9545(b)(1). “The PCRA’s time
restrictions are jurisdictional in nature. Thus, if a PCRA petition is untimely,
neither this Court nor the [PCRA] court has jurisdiction over the petition.
Without jurisdiction, we simply do not have the legal authority to address the
substantive claims.” Commonwealth v. Chester, 895 A.2d 520, 522 (Pa.
2006) (internal citations and quotation marks omitted) (overruled on other
grounds by Commonwealth v. Small, 238 A.3d 1267 (Pa. 2020)). As
timeliness is separate and distinct from the merits of Appellant’s underlying
claims, we first determine whether this PCRA petition is timely filed.
Commonwealth v. Stokes, 959 A.2d 306, 310 (Pa. 2008).
It is undisputed the instant petition, which was filed in 2018, is facially
untimely.4 The only question for us to address is whether Appellant pled and
proved that he met one of the exceptions set forth under 42 Pa.C.S.A.
§ 9545(b)(1)(i-iii). Our review of the record shows that Appellant failed to do
so. Indeed, the PCRA court noted that Appellant failed to address in his
petition the timeliness of the petition. See Trial Court Opinion, 2/23/21, at 1.
Accordingly, the lower court found that the petition was untimely. Id.
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4 Appellant’s sentence became final on July 31, 2003, upon the expiration of
the time to seek review in our Supreme Court. See 42 Pa.C.S.A.
§ 9545(b)(3); Pa.R.A.P. 1113(a). Appellant had one year from July 31, 2003,
to file a timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). The instant
petition, which was filed on July 17, 2018, is facially untimely under the PCRA.
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Similarly, before us, Appellant addresses the merits of his sentencing claim
but fails to address the timeliness of his petition.
Because the underlying petition is facially untimely, and Appellant failed
to plead and prove the applicability of any exception to the timeliness one-
year bar, we have no jurisdiction to entertain the merits of this appeal. See,
e.g., Commonwealth v. Callahan, 101 A.3d 118, 123-24 (Pa. Super. 2014)
(A court lacks jurisdiction over the merits of an untimely PCRA petition when
appellant has failed to plead and prove the applicability of an exception to the
timeliness requirement). Accordingly, we affirm the order of the PCRA court
dismissing Appellant’s petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2021
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