Com. v. Vernon, E. ( 2018 )

J-S70042-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ERIC D. VERNON :
:
Appellant : No. 170 EDA 2018
Appeal from the PCRA Order December 7, 2017
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0002467-2010,
CP-48-CR-0002781-2009
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED DECEMBER 19, 2018
Appellant, Eric D. Vernon, appeals from the order entered in the
Northampton County Court of Common Pleas, which denied his third petition
brought pursuant to the Post-Conviction Relief Act (“PCRA”), at 42 Pa.C.S.A.
§§ 9541-9546. On November 4, 2010, Appellant entered an open guilty plea
at #2781-2009 to endangering the welfare of children and invasion of privacy,
and at #2467-2010 to five counts of possession of child pornography. The
court sentenced Appellant on April 14, 2011, to 59 to 126 months’
imprisonment; the court also deemed Appellant a sexually violent predator
and required Appellant to register for life under Megan’s Law III. Appellant
timely filed a post-sentence motion, which the court denied on April 28, 2011.
Appellant did not file a direct appeal.
On April 30, 2012, Appellant timely filed pro se his first PCRA petition.
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The PCRA court appointed counsel on May 9, 2012, and issued notice of its
intent to dismiss pursuant to Pa.R.Crim.P. 907, on July 19, 2012. The PCRA
court denied relief on August 20, 2012. This Court affirmed the order on
October 28, 2013. See Commonwealth v. Vernon, 87 A.3d 894 (Pa.Super.
2013) (unpublished memorandum). On June 10, 2016, Appellant filed pro se
his second PCRA petition. On July 26, 2016, Appellant filed pro se an “Affidavit
of Consent,” which stated he gave his attorney permission to withdraw the
second PCRA petition. The PCRA court dismissed Appellant’s second petition
on August 3, 2016.
On August 3, 2017, Appellant filed pro se his third PCRA petition, styled
as a “Motion to Modify Sentence,” which asserted relief due under
Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d 1189 (2017), cert denied,
___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018). The PCRA court
appointed counsel on August 8, 2017, who filed an amended PCRA petition on
October 24, 2017. On November 13, 2017, the PCRA court issued Rule 907
notice; Appellant responded on November 17, 2017. The PCRA court denied
relief on December 7, 2017. On January 5, 2018, Appellant timely filed a
notice of appeal. The PCRA court on January 12, 2018, ordered Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b); Appellant timely complied on February 2, 2018.
Preliminarily, any petition for post-conviction collateral relief will
generally be considered a PCRA petition if the petition raises issues cognizable
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under the PCRA. See Commonwealth v. Jackson, 30 A.3d 516 (Pa.Super.
2011), appeal denied, 616 Pa. 634, 47 A.3d 845 (2012); 42 Pa.C.S.A. § 9542
(stating PCRA shall be sole means of obtaining collateral relief and
encompasses all other common law and statutory remedies for same
purpose). The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA petition
must be filed within one year of the date the underlying judgment becomes
final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence is deemed final at
the conclusion of direct review or at the expiration of time for seeking review.
42 Pa.C.S.A. § 9545(b)(3). The statutory exceptions to the time-bar allow for
very limited circumstances to excuse the late filing of a petition; a petitioner
asserting an exception must file a petition within 60 days of the date the claim
could have been presented. See 42 Pa.C.S.A. § 9545(b)(1-2).
Instantly, Appellant styled his current petition as a Motion to Modify
Sentence and challenged the constitutionality of his sex offender registration,
which is cognizable under the PCRA. Thus, the PCRA court properly treated
Appellant’s filing as a PCRA petition. See 42 Pa.C.S.A. § 9543(a)(2)(i);
Jackson, supra. Appellant’s judgment of sentence became final on Tuesday,
May 31, 2011, upon expiration of the time to file a direct appeal with this
Court. See Pa.R.A.P. 903(a). Appellant filed the current petition for collateral
relief on August 3, 2017, which is patently untimely. See 42 Pa.C.S.A. §
9545(b)(1). Further, Muniz does not satisfy the newly-recognized
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constitutional-right exception to the PCRA time-bar. See Commonwealth v.
Murphy, 180 A.3d 402 (Pa.Super. 2018), appeal denied, ___ Pa. ___, ___
A.3d ___ (2018) (stating petitioner cannot rely on Muniz to meet timeliness
exception under Section 9545(b) unless and until Supreme Court allows).
Therefore, Appellant’s petition remains time-barred, and the PCRA court
lacked jurisdiction to review it. See Zeigler, supra. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/18
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