Com. v. Doster, G. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
GLENN G. DOSTER :
:
Appellant : No. 3527 EDA 2017
Appeal from the PCRA Order October 4, 2017
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0002246-1990,
CP-09-CR-0002247-1990, CP-09-CR-0002248-1990,
CP-09-CR-0002249-1990, CP-09-CR-0002250-1990,
CP-09-CR-0002251-1990, CP-09-CR-0002252-1990,
CP-09-CR-0002253-1990
BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED JULY 03, 2018
Appellant Glenn G. Doster appeals pro se from the Order denying his
fifth Post-Conviction Relief Petition, filed as a “Petition for Review.” We
conclude that the trial court properly considered the Petition under the Post
Conviction Relief Act, 42 Pa.C.S. §§ 9541-46, and properly denied the Petition
as untimely filed.
On June 4, 1990, Appellant entered open guilty pleas to multiple
offenses arising from his sexual abuse of juvenile boys throughout 1989. On
September 24, 1990, the court sentenced him to an aggregate term of 10 to
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35 years’ incarceration. The court did not make any finding that Appellant
was a sexually violent predator.1
After the court denied Appellant’s second Motion for Reconsideration of
Sentence on December 3, 1990,2 Appellant did not timely appeal. His
Judgment of Sentence became final thirty days thereafter on January 3, 1991.
See 42 Pa.C.S. § 9545(b)(3) (providing “a judgment 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 time for seeking the review.”).
Appellant thereafter filed four PCRA Petitions, the first one on
September 27, 2000, none of which garnered relief. On August 15, 2017, he
filed the instant “Petition for Review” in which he sought relief from the
registration requirements of the Sex Offenders Registration and Notification
Act (“SORNA”) in light of Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
2017) (OAJC).3 The PCRA court properly considered the filing under the
PCRA. After issuing a Pa.R.Crim.P. 907 Notice of Intent to dismiss without a
hearing, the court dismissed the Petition as untimely.
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1 Megan’s Law I was enacted in 1995, and applied to those sexual offenders
who were convicted before the effective date of that statute and who were still
serving their sentence. Appellant was, thus, subject to the Megan’s Law I
registration requirements.
2 Appellant filed two Post-Sentence Motions, one of which the court granted
so that he serve his sentence in SCI Frackville.
3 Appellant remains incarcerated.
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Appellant timely appealed pro se. Both Appellant and the PCRA court
complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review in his “General
Statements of Material Facts Complained of on Appeal:”
1. Whether SORNA’s registration provisions constitute punishment
although the General Assembly’s identification of the provisions of
(SORNA) as nonpunitive?
2. Does (SORNA) (Sex Offenders Notification Act) pursuant to 42
Pa.C.S. §§ 9799.10-9799.41, violate Petitioner’s Constitution Rights,
Article 1 § 17 of the Pennsylvania Constitution (ex post facto clause)
and Article 1 § 10 of the United States Constitution (ex post facto
clause) applied retroactively, upon release?
3. Did Court (Bucks County), commit (Harmful error) of “Order of
Court’, case Nos: CR-2246 thru CR-2253-1990, filed October 4,
2017, construing “Petition for Review” for “Post Conviction Relief”,
since “Petition for Review” wasn’t filed to challenge (Appellant’s
Conviction), but the “Collateral Legal Consequences) of that
conviction; namely (Registration Requirements) of SORNA’s (Sex
Offenders Notification Act), 42 Pa.C.S. §§9799.10-9799.41)?
4. Did court (Bucks County) construe “Petition for Review” as “PCRA”,
filed “Mail Box Rule Date”, August 9, 2017, leads to “inference” and
“Supports” that (SORNA) is punitive, that does “Imply” that Petition
was punished (Twice) for the same offense, in violation of the United
States 5th Amendment and Pennsylvania’s Constitution, Article 1 §9,
26, and 28 (Double Jeopardy Clause)?
Appellant’s Brief at 8-9, 11 (verbatim, except certain capitalizations and
emphases omitted).
Appellant challenges the court’s denial of his Petition for Review
pursuant to the PCRA, and challenges the application of SORNA’s registration
requirements as unconstitutional after Muniz. Appellant’s Brief at 4.
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Standard/Scope of Review
We review the denial of a PCRA Petition to determine whether the record
supports the PCRA court’s findings and whether its order is otherwise free of
legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This
Court grants great deference to the findings of the PCRA court if they are
supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.
Super. 2007). We give no such deference, however, to the court’s legal
conclusions. Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.
2012).
Applicability of PCRA
We conclude that the PCRA court properly reviewed Appellant’s Petition
for Review pursuant to the PCRA. This Court has “repeatedly held that the
PCRA provides the sole means for obtaining collateral review and that any
petition filed after the judgment of sentence becomes final will be treated as
a PCRA petition.” Commonwealth v. Kubis, 808 A.2d 196, 199 (Pa. Super.
2002). Specifically, the PCRA provides:
This subchapter provides for an action by which persons convicted
of crimes they did not commit and persons serving illegal
sentences may obtain collateral relief. The action established in
this subchapter shall be the sole means of obtaining collateral
relief and encompasses all other common law and statutory
remedies for the same purpose that exist when this subchapter
takes effect, including habeas corpus and coram nobis.
42 Pa.C.S. § 9542.
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Appellant’s invocation of Muniz raises a challenge to the legality of his
sentence. Accordingly, pursuant to Section 9542, Appellant’s Petition raises
claims that are reviewable only under the PCRA.
In order to obtain relief under the PCRA, a petition must be timely filed.
See 42 Pa.C.S. § 9545 (providing jurisdictional requirements for the timely
filing of a petition for post-conviction relief). A Petition must be filed within
one year from the date the judgment of sentence became final. Id. at Section
9545(b)(1).4 This fifth Petition, filed 20 years later, is facially untimely.
A court may review a facially untimely PCRA Petition, however, if a
petitioner invokes one of three timeliness exceptions provided in 42 Pa.C.S. §
9545(b)(1). Here, although Appellant never pled a timeliness exception, his
reliance on Muniz indicates that he has attempted to assert the exception
provided in Section 9545(b)(1)(iii) for a newly-recognized constitutional right.
For the reasons that follow, we affirm the dismissal of Appellant’s Petition.
Muniz
On July 19, 2017, the Pennsylvania Supreme Court filed its decision in
Muniz, supra, holding that the enhanced registration requirements applicable
to sex offenders provided in the Sexual Offender Registration and Notification
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4Although Appellant’s Judgment of Sentence became final before the effective
date of the 1995 amendments to the PCRA, and he thus had until 1997 to file
his first PCRA Petition, he did not file his first PCRA Petition until 2000. See
Commonwealth v. Thomas, 718 A.2d 326, 329 (Pa. Super. 1998)
(providing timeliness exception for filing of first PCRA Petition for those
convicted prior to the 1995 amendments became effective).
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Act (“SORNA”) are punitive and, therefore, applying SORNA retroactively to
offenders whose crimes occurred prior to SORNA’s enactment is a violation of
the ex post facto clauses of the U.S. Constitution and Pennsylvania
Constitutions. Muniz, 164 A.3d at 1223. On February 21, 2018, the
legislature amended SORNA to reflect the Muniz holding. See 42 Pa.C.S. §§
9799.51-9799.75 (“Act 10”).5
This Court has declared that “Muniz created a substantive rule that
retroactively applies in the collateral context.” Commonwealth v. Rivera–
Figueroa, 174 A.3d 674, 678 (Pa. Super. 2017). However, as we recognized
in Commonwealth v. Murphy, 180 A.3d 402, 405–06 (Pa. Super. 2018),
“because Appellant's PCRA petition is untimely (unlike the petition at issue in
Rivera–Figueroa), he must demonstrate that the Pennsylvania Supreme
Court has held that Muniz applies retroactively in order to satisfy Section
9545(b)(1)(iii). See Commonwealth v. Abdul–Salaam, [812 A.2d 497 (Pa.
2002)].” No such holding has yet been issued by our Supreme Court.
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5 Because Megan’s Law I was previously applicable to Appellant, and
Appellant’s period of registration has not yet expired (or even begun since he
remains incarcerated), Appellant will be required to register as a sex offender
under Section 9799.52(2) of the newly amended law. See 42 Pa.C.S. §
9799.52 (providing that Act 10 applies to anyone “required to register with
the Pennsylvania State Police under a former sexual offender registration law
of this Commonwealth on or after April 22, 1996, but before December 20,
2012, whose period of registration has not expired.”).
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Accordingly, Appellant cannot rely on Muniz to meet that timeliness
exception.6
Accordingly, we affirm the denial of PCRA relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/3/18
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6 As we recognized in Murphy, supra, “if the Pennsylvania Supreme Court
issues a decision holding that Muniz applies retroactively, Appellant can then
file a PCRA petition, within 60 days of that decision, attempting to invoke the
‘new retroactive right’ exception of section 9545(b)(1)(iii).” Murphy, 180
A.3d at 406 n.1.
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