Com. v. Saleem, M. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MOHAMMAD SOHAIL SALEEM :
:
Appellant : No. 1582 MDA 2018
Appeal from the PCRA Order Entered September 4, 2018
In the Court of Common Pleas of Lebanon County Criminal Division at
No(s): CP-38-CR-0000565-2014
BEFORE: BOWES, J., NICHOLS, J., and STEVENS,* P.J.E.
MEMORANDUM BY BOWES, J.: FILED APRIL 17, 2019
Mohammad Sohail Saleem appeals from the September 4, 2018 order
treating his petition for habeas corpus as a PCRA petition, and dismissing it as
untimely. We affirm.
Appellant was charged at two criminal numbers in March and May of
2014 with multiple counts of sexual assault, indecent assault, and one count
of involuntary deviate sexual intercourse involving two different female
victims who were his employees of his small business. On April 21, 2015, he
entered a negotiated guilty plea to two counts of indecent assault at No. 0565,
and one count each of indecent assault and harassment at No. 1112. The
remaining charges were non prossed. He was sentenced on June 3, 2015, to
two consecutive terms of imprisonment of nine months to four years, and
$200 in fines at No. 0565, and a consecutive term of imprisonment of three
months to two years in a state correctional facility. The harassment conviction
____________________________________
* Former Justice specially assigned to the Superior Court.
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merged for sentencing purposes. In the sentencing order, the court noted
that Appellant met the criteria to be classified as a sexually violent predator
(“SVP”) under Megan’s Law, and further, that Appellant might be impacted by
“collateral immigration consequences.” Order, 6/3/15, at 2.
Appellant filed an untimely post-sentence motion asking the court to
modify his sentence or, in the alternative, permit him to withdraw his plea as
it was not entered into voluntarily, knowingly, and intelligently. He alleged
that he was incorrectly informed that he would be deported immediately, but
subsequently learned that he would have to serve his sentence first. The court
denied him the right to file the motion nunc pro tunc, but granted him leave
to file a PCRA petition.
On August 31, 2015, Appellant filed a counseled PCRA petition in which
he alleged that he pled guilty based upon statements made by his counsel and
the assistant district attorney. After a hearing, the court found no
ineffectiveness and denied relief. On appeal, this Court affirmed.
Commonwealth v. Saleem, 168 A.3d 357 (Pa.Super. 2017) (unpublished
memorandum). Appellant filed a second pro se PCRA petition on April 6, 2017,
which the PCRA court dismissed without a hearing as untimely. We affirmed
on May 1, 2018. Commonwealth v. Saleem, 192 A.3d 207 (Pa.Super.
2018) (unpublished memorandum).
On May 10, 2018, Appellant filed a petition for writ of habeas corpus
challenging his status as an SVP after Commonwealth v. Muniz, 164 A.3d
1189 (Pa. 2017) (finding SORNA registration punitive). The PCRA court
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appointed counsel and directed him to file an amended PCRA petition.
Instead, counsel sought leave to withdraw pursuant to Turner/Finley,
attached a copy of his no-merit letter to his petition, and served it upon
Appellant. Counsel represented therein that he had conducted a review of the
record and concluded that there were no issues of merit as the petition was
untimely. After reviewing counsel’s petition to withdraw, his no-merit letter,
and the record, the court granted the petition. The court concluded that after
Muniz, Appellant’s claims were cognizable under the PCRA, applied the PCRA’s
time limitations, and dismissed the petition as untimely.
Appellant timely filed the instant pro se appeal, and both Appellant and
the PCRA court complied with Pa.R.A.P. 1925. Appellant presents one issue
for our review: “Whether the lower court erred by treating [his] writ of habeas
corpus as a PCRA petition, where the claim presented has no remedy under
the PCRA and the legislature did not create a remedy?” Appellant’s brief at 5.
Before we can determine whether we have jurisdiction to entertain the
merits of the within petition, we must determine whether the PCRA court
properly treated the petition, styled as a habeas corpus petition, as a PCRA
petition. The case of Commonwealth v Masker, 34 A.3d 841 (Pa.Super.
2011), relied upon by Appellant for the proposition that SVP designations and
registration requirements are civil collateral consequences of a plea and not
cognizable under the PCRA, is no longer the applicable law. In Muniz, our
Supreme Court held that SORNA registration is punitive and part of the
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sentence. Hence, such claims are now cognizable under the PCRA. Where,
as here, the PCRA provides a means of obtaining relief, “it encompasses all
other common law and statutory remedies for the same purpose . . . including
habeas corpus and coram nobis. Commonwealth v. Descardes, 136 A.3d
493, 496-97 (Pa. 2016). Thus, the trial court properly treated Appellant’s
petition as a PCRA petition.
Our standard of review of an order dismissing a petition under the PCRA
is whether the determination of the PCRA court is supported by evidence of
record and is free of legal error. Commonwealth v. Burkett, 5 A.3d 1260,
1265 (Pa.Super. 2010). Before we can address the merits of the petition,
however, we must first determine if the petition is timely. The time limitations
of the PCRA are jurisdictional, and we may not reach the merits of the petition
unless it is timely filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093
(Pa. 2010). Under the PCRA, “any petition shall be filed within one year of
the date when the judgment becomes final[.] 42 Pa.C.S. § 9545(b)(1). A
judgment of sentence becomes 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
the review.” Id. at § 9545(b)(3).
Appellant’s judgment of sentence became final on or about July 3, 2015,
when the time to file a direct appeal to this Court expired. Id. Thus, any
petition, in order to be timely, would have to be filed before July 3, 2016. The
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instant petition filed May 10, 2018, is untimely on its face. Nevertheless, we
may consider a facially untimely petition if the petitioner pleads and proves
one of the exceptions to the time-bar set forth in § 9545(b)(1)(i-iii).
Appellant does not invoke any of the exceptions to the time-bar. Nor
can he rely upon Muniz to satisfy the “new retroactive right” exception of
§ 9545(b)(1)(iii). Our Supreme Court held in Commonwealth v. Abdul-
Salaam, 812 A.2d 497 (Pa. 2002), that a newly-recognized constitutional
right under § 9545(b)(1)(iii) must also have been held by the court
recognizing it to apply retroactively. Although Muniz created a substantive
rule that retroactively applies in the collateral context, this Court held in
Commonwealth v. Murphy, 180 A.3d 402, 405 (Pa.Super. 2018), that
Muniz does not “satisfy the ‘new retroactive right’ exception of section
9545(b)(1)(iii).”
Accordingly, the PCRA court correctly treated Appellant’s habeas corpus
petition as a PCRA petition, and dismissed it as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/17/2019
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