Com. v. Glushko, A. ( 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    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
    Appellee
    v.
    ANDREW GLUSHKO,
    Appellant                         No.   1   EDA 2019
    Appeal from the PCRA Order Entered November 30, 2018
    In the Court of Common Pleas of Monroe County
    Criminal Division at No(s): CP-45-CR-0001053-2015
    BEFORE:     BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.
    MEMORANDUM BY BENDER, P.J.E.:                                  FILED JULY 26, 2019
    Appellant, Andrew Glushko, appeals pro se from the order denying, as
    untimely, his petition filed pursuant to the Post Conviction Relief Act ("PCRA"),
    42 Pa.C.S. §§ 9541-9546. Appellant contends that the PCRA court erred when
    it denied his motion to amend his PCRA petition into either              a   habeas corpus
    or coram nobis petition. Alternatively, Appellant petitions for          a   writ of habeas
    corpus to be issued directly from this Court. After careful review, we affirm.
    Additionally, we deny Appellant's petition for       a   writ of habeas corpus.
    "On July 15, 2009,     a   jury found Appellant guilty of multiple counts of
    unlawful contact with   a   minor, criminal attempt and criminal solicitation counts
    related to various sexual offenses, corruption of minors, and criminal use of            a
    communication facility." Commonwealth v. Glushko, No. 871 EDA 2013,
    unpublished memorandum at           1   (Pa. Super. filed April 28, 2014). "On October
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    22, 2009, Appellant was sentenced to an aggregate term of 48 to 96 months'
    imprisonment.      On March 14, 2011, this Court affirmed the                   judgment of
    sentence." 
    Id. at 4.
    Appellant filed      a   timely, pro se    PCRA     petition, his first,
    on March 19, 2012, which was denied on March 1, 2013.                  
    Id. at 5.
    This    Court
    affirmed that decision on April 28, 2014.       
    Id. at 20.
    As    a    consequence of his
    conviction, Appellant was required to register as        a   sex offender for     a   period of
    10 years. PCRA Court Opinion (PCO), 1/31/19, at 1.
    In April of 2015, the Commonwealth charged Appellant with various
    failure to register offenses pursuant to SORNA.1               On November 4, 2015,
    Appellant pled guilty to one count of failure to comply with registration
    requirements, 18 Pa.C.S.    §   4915.1. Pursuant to that conviction, the trial court
    sentenced Appellant to 2-4 years' incarceration. Appellant did not file                a   direct
    appeal from his judgment of sentence.2
    On March 19, 2018, Appellant filed the at -issue PCRA           petition,    in which
    he alleged   that his current incarceration    is   illegal in light of Commonwealth
    v.    Muniz, 
    164 A.3d 1189
          (Pa. 2017), and       Commonwealth v. Rivera -
    1    Sexual Offender Registration and Notification Act, 42 Pa.C.S. §§ 9799.10-
    9799.41.
    2Appellant did file an interlocutory appeal from an order entered in that
    matter, which this Court ultimately quashed. See Commonwealth v.
    Glushko, 
    170 A.3d 1209
    (Pa. Super. 2017) (unpublished memorandum).
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    Figueroa, 
    174 A.3d 674
          (Pa. Super. 2017).3 The PCRA court described the
    subsequent procedural history of this case as follows:
    On March 21, 2018,   [Appellant] was appointed counsel. We then
    scheduled this matter for hearing en banc with other, similarly
    situated defendants[,] in light of new case law from the
    Pennsylvania Supreme Court on sexual offender registration
    requirements and new legislation regarding [SORNA]. The en
    banc hearing was convened on June 21, 2018, however,
    [Appellant] was not present and his [p]etition was not heard.
    Rather, the hearing was continued to August 31, 2018. On June
    25, 2018, counsel for [Appellant] and the Commonwealth agreed
    that a hearing was unnecessary and the matter could be
    submitted on briefs.
    In his [m]otion to cancel the hearing, [Appellant] averred that
    "[o]n June 23, 2017, the Superior Court quashed [Appellant]'s
    direct appeal." Def.'s Mot. to Cancel Hr'g and Decide Matter on
    Brs., 6/25/18, [at] 1. Accordingly, [Appellant] represented that
    his present PCRA Petition was timely filed on March 19, 2018. In
    his subsequent Motion to Amend, [Appellant] corrected his error:
    Notwithstanding an incorrect statement in a prior motion by
    [Appellant] to cancel hearing and decide the matter on the
    briefs, it has come to counsel's attention that the ruling on
    appeal on June 23, 2017 was not actually a ruling on the
    direct appeal in the normal course of a criminal case, but
    was a ruling on a subsequent pro se appeal regarding a
    motion for return of property. This raises the appearance
    of a jurisdictional time -bar under the PCRA.... On February
    22, 2016, the judgment became final for purposes of the
    [PCRA].
    3  In Muniz, our Supreme Court determined that SORNA's registration
    provisions were punitive and, therefore, that the retroactive application of
    those provisions violated the ex post facto clauses of the Federal and
    Pennsylvania constitutions. In Rivera -Figueroa, this Court held that Muniz
    created a new substantive rule that retroactively applies in the collateral
    context and, thus, applies retroactively to a defendant who filed a PCRA
    petition challenging his convictions for failure to register as a sex offender and
    whose denial of PCRA relief was pending on appeal.
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    Def.'s Mot. to Amend Pro Se Pet. to Seek Relief in Habeas Corpus
    and Coram Nobis, 7/16/18, Ill 1-3, 6....
    Based on the foregoing, [Appellant] conceded that his PCRA
    [p]etition  was untimely filed but ask[ed] this [c]ourt to
    nonetheless decide the merits of his claims under the legal
    precepts of a writ for habeas corpus ad subjiciendum and/or a writ
    of error coram nobis. The Commonwealth opposed [Appellant]'s
    [m]otion but concurred that the matter could still be decided on
    briefs and that no hearing was necessary. We took [Appellant]'s
    [m]otion under advisement and directed the parties to file briefs.
    PCO    at 2-3.       The PCRA court denied Appellant's amendment(s) seeking
    consideration of his claim pursuant to habeas corpus and coram nobis
    theories, and denied his PCRA as untimely on November 30, 2018.
    On December 17, 2018, Appellant filed a    timely notice of appeal. That
    same day, his PCRA counsel filed      a   contemporaneous motion on his behalf
    indicating Appellant's desire to proceed pro se on appeal, and requesting         a
    hearing pursuant to Commonwealth v. Grazier, 
    713 A.2d 81
    (Pa. 1998).
    On December 21, 2018, Appellant filed a        timely, counseled, court -ordered
    Pa.R.A.P. 1925(b) statement.      The court held   a   Grazier hearing   on January
    10, 2019, immediately following which the PCRA court entered an order
    permitting Appellant to proceed pro se. Appellant then filed        a    pro se Rule
    1925(b) statement that same day.4 The PCRA court issued its Rule 1925(a)
    opinion on January 31, 2019.
    Appellant now presents the following question for our review:
    I.   Whether the common pleas court erred in finding that
    [Appellant]'s illegal sentence claim is cognizable under the
    4 Both Appellant's counseled and pro se Rule 1925(b) statements essentially
    raised the same claim.
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    PCRA where  [his] claim does not fall under any of the three
    categories of illegal sentence claims encompassed by the
    PCRA, discussed in Com[monwealth] v. Rouse, ... 
    191 A.3d 1
    , 5-6 (Pa. Super. 2018)[?]
    II.   Whether the Superior Court of Pennsylvania should issue          a
    writ of habeas corpus in this matter[?]
    Appellant's Brief at 4.
    We review an order dismissing a petition under the PCRA in
    the light most favorable to the prevailing party at the PCRA level.
    This review is limited to the findings of the PCRA court and the
    evidence of record. We will not disturb a PCRA court's ruling if it
    is supported by evidence of record and is free of legal error. This
    Court may affirm a PCRA court's decision on any grounds if the
    record supports it. Further, we grant great deference to the
    factual findings of the PCRA court and will not disturb those
    findings unless they have no support in the record. However, we
    afford no such deference to its legal conclusions. Where the
    petitioner raises questions of law, our standard of review is de
    novo and our scope of review plenary.
    Commonwealth v. Ford, 
    44 A.3d 1190
    , 1194                (Pa. Super. 2012) (internal
    citations omitted).
    In Appellant's first claim, he asserts that the PCRA court erred when it
    denied his motion to amend his PCRA petition to seek relief under habeas
    corpus or     coram   nobis.   He concedes   that his   PCRA    petition "was patently
    untimely[,]" but argues that his underlying claim        is   not cognizable under the
    PCRA and,        therefore, that he may seek relief under those alternative
    mechanisms.
    As our Supreme Court has explained,
    both the PCRA and the state habeas corpus statute contemplate
    that the   PCRA subsumes the writ of habeas corpus in
    circumstances where the PCRA provides a remedy for the claim.
    Commonwealth v. Peterkin, 722 A.2d [638,] 640 [(Pa. 1998)].
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    See also 42 Pa.C.S. § 9542 ("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. § 6503(b)
    ("[T]he writ of habeas corpus shall not be available if a remedy
    may be had by post -conviction hearing proceedings authorized by
    law.").
    Commonwealth v. Hackett, 
    956 A.2d 978
    , 985-86             (Pa. 2008). In order to
    effectuate the intent of the legislature to subsume the remedies of habeas
    corpus and coram nobis into the PCRA, the Supreme Court "has broadly
    interpreted the PCRA eligibility requirements...." 
    Id. at 986.
    However, our
    Supreme Court "has never held that habeas corpus cannot provide       a   separate
    remedy, in appropriate circumstances. Indeed, the boundaries of cognizable
    claims under the PCRA can only be extended so far as is consistent with the
    purposes of the statute...." Commonwealth v. Judge, 
    916 A.2d 511
    , 520
    (Pa.    2007)    (holding,   inter alia, that the appellant's claim under an
    international treaty was not cognizable under the PCRA and, therefore, could
    be raised in a petition for a   writ of habeas corpus).
    Appellant accurately describes the nature of his underlying claim as
    follows:
    In 2009, [Appellant] was convicted of sexual offenses in the Court
    of Common Pleas of Monroe County. As a result of his conviction,
    he was required to register under Megan's Law III, 42 Pa.C.S. §
    9791-9799.9 (expired). Under Megan's Law III, [Appellant] was
    not required to register his phone numbers or Internet identifiers.
    On  December 20, 2012, Megan's Law III was replaced by
    [SORNA]. Under SORNA, [Appellant] was retroactively required
    to comply with SORNA's provisions. These provisions required
    [him] to register his phone numbers and internet identifiers.
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    In 2014, [Appellant] used an alternate phone number and multiple
    internet identifiers that he failed to report to the Pennsylvania
    State Police. On April 2, 2015, he was arrested and charged under
    SORNA. On November 4, 2015, as part of a plea agreement, he
    pled guilty in the Court of Common Pleas of Monroe County to an
    amended Failure to Register charge, 18 Pa.C.S. § 4915.1(a.1)(1).
    On January 12, 2016, he was sentenced to 2 to 4 years[']
    incarceration and is currently serving this sentence. On February
    20, 2016, his judgment of sentence became final.
    One and a half years after [Appellant]'s judgment of sentence
    became final, the Supreme Court of Pennsylvania found SORNA's
    retroactive application to be unconstitutional. []Muniz, [supra].
    Under Muniz, SORNA was never lawfully applicable to [Appellant]
    because his sexual offenses occurred prior to SORNA's enactment.
    As such, [Appellant]'s actions of not registering his alternate
    phone number and internet identifiers was not a crime. His
    conviction and sentence under SORNA was unlawful.            See,
    generally: Com[monwealth] v. Corliss, 
    192 A.3d 256
    (Pa.
    Super.    2018) [(unpublished      memorandum)]       (Pre-SORNA
    registrant could not be charged with failing to register a vehicle
    under SORNA.); Com[monwealth] v. Williams, 
    193 A.3d 1090
            (Pa. Super. 2018) [(unpublished memorandum)] (Pre-SORNA
    registrant's failure was not a crime in light of Muniz so his
    sentence was illegal.).
    Appellant's Brief at 11-12.      Appellant is correct that, under Muniz, his
    sentence is illegal. The critical issue before us, however, is whether          a   Muniz-
    based illegal sentencing claim (hereinafter,   "Muniz claim")      is   cognizable under
    the PCRA.
    Appellant acknowledges that this Court has already provided relief for
    Muniz claims when raised     in the   context of   a   timely   PCRA    petition. See 
    id. at 13.
    However, he argues that because the PCRA does not provide relief for
    untimely PCRA petitions raising similar Muniz claims, such claims are
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    ineligible for relief under the PCRA and, therefore, can be raised under the
    doctrine of habeas corpus. We disagree.
    This issue was effectively decided in Commonwealth v. Greco, 
    203 A.3d 1120
    (Pa. Super. 2019). The Greco Court first determined that Muniz
    claims were cognizable under the PCRA:
    This Court has     determined previously that a challenge to
    retroactive application of Megan's Law does not implicate "the
    statutory and rule -based requirements governing a PCRA
    petition." Commonwealth v. Bundy, 
    96 A.3d 390
    , 394 (Pa.
    Super. 2014); see also Commonwealth v. Price, 
    876 A.2d 988
    ,
    992 (Pa. Super. 2005) (stating that challenge to non -punitive,
    regulatory "registration, notification, and counseling requirements
    for offenders under Megan's Law" is not cognizable under the
    PCRA). Thus, this Court has in the past criticized the analysis of
    lower courts where they have denied petitions for relief from
    Megan's Law's registration requirements, on the basis that they
    were untimely PCRA petitions. See, e.g., 
    Bundy, 96 A.3d at 394
            (rejecting the lower court's conclusion that the appellant's petition
    was untimely under the PCRA and addressing the merits of the
    appellant's claim); Commonwealth v. Partee, 
    86 A.3d 245
    , 247
    (Pa. Super. 2014) (rejecting the lower court's PCRA analysis).
    Recently, however, our Supreme Court determined that SORNA's
    registration provisions are punitive and that retroactive
    application of SORNA's registration provisions violates the federal
    and state ex post facto clauses. 
    Muniz, 164 A.3d at 1193
    . The
    punitive nature of these provisions implicates the legality of a sex
    offender's sentence. See Commonwealth v. Butler, 
    173 A.3d 1212
    , 1215 (Pa. Super. 2017) (concluding that a challenge to an
    appellant's increased registration requirements under SORNA
    implicated the legality of the sentence imposed). Thus, claims
    challenging application of SORNA's registration provisions - unlike
    prior versions of Megan's Law - are properly considered under the
    PCRA. [Commonwealth v.] Murphy, 180 A.3d [402,] 405-06
    [(Pa. Super. 2018), appeal denied, 
    195 A.3d 559
    (Pa. 2018)]
    (discussing the impact of Muniz on the timeliness of a petitioner's
    PCRA petition); Commonwealth v. Rivera -Figueroa, 
    174 A.3d 674
    (Pa. Super. 2017) (remanding for further proceedings to
    address the petitioner's timely PCRA claim in light of Muniz).
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    Greco, 203 A.3d at 1123
    . Because Muniz claims are cognizable under the
    PCRA, the Court determined          that Greco's motion for relief was "properly
    considered    a PCRA    petition." 
    Id. The Court
    then considered whether Greco could satisfy any of the
    timeliness exceptions the PCRA, and determined that he could not, based on
    this Court's prior ruling in Murphy.             In Murphy, we reasoned that the
    appellant's
    reliance on Muniz cannot satisfy the 'new retroactive right'
    exception of section 9545(b)(1)(iii). In Commonwealth v.
    Abdul-Salaam, 
    571 Pa. 219
    , 
    812 A.2d 497
    (2002), our Supreme
    Court held that,
    [s]ubsection (iii) of Section 9545 has two requirements.
    First, it provides that the right asserted is a constitutional
    right that was recognized by the Supreme Court of the
    United States or this court after the time provided in this
    section. Second, it provides that the right "has been held"
    by "that court" to apply retroactively. Thus, a petitioner
    must prove that there is a "new" constitutional right and
    that the right "has been held" by that court to apply
    retroactively. The language "has been held" is in the past
    tense. These words mean that the action has already
    occurred, i.e., "that court" has already held the new
    constitutional right to be retroactive to cases on collateral
    review. By employing the past tense in writing this
    provision, the legislature clearly intended that the right was
    already recognized at the time the petition was filed.
    
    Id. at 501.
            Here, we acknowledge that this Court has declared that, "Muniz
    created a substantive rule that retroactively applies in the
    collateral context." []Rivera-Figueroa, 174 A.3d [at] 678[].
    However, because [Murphy]'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
    
    Abdul-Salaam, supra
    . Because at this time, no such holding has
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    been issued by our Supreme Court, [Murphy] cannot rely on
    Muniz to meet that timeliness exception.'
    ' Certainly, if the Pennsylvania Supreme Court issues a
    decision holding that Muniz applies retroactively, [Murphy]
    a PCRA petition, within 60 days of that decision,
    can then file
    attempting to invoke the 'new retroactive right' exception of
    section 9545(b)(1)(iii).
    
    Murphy, 180 A.3d at 405-06
    .
    Appellant argues, however, that because his Muniz claim cannot be
    considered in light of the PCRA's time -bar, and because there was never                      a
    time when he could have filed         a   timely   PCRA    petition raising the claim, that
    the "claim   is   at the very heart of habeas corpus and should be reviewed as
    such." Appellant's Brief at 14. We disagree.
    As this Court reiterated in       Greco, "a petitioner may not mislabel his
    petition in an attempt to circumvent the PCRA's timeliness requirements."
    
    Greco, 203 A.3d at 1122-23
    (citing Commonwealth v. Taylor, 
    65 A.3d 462
    ,
    466 (Pa. Super. 2013)).       Appellant fails to cite any case that suggests that
    this rule does not apply when there was never an opportunity to raise                 a   claim
    that came into existence due to new case law               in a   timely   PCRA   petition. As
    discussed below, none of the cases cited by Appellant stand for such                         a
    proposition; instead, they all involved issues that were categorically excepted
    from PCRA review, not claims that were barred solely by operation of the
    PCRA's timeliness requirements.
    In Rouse, this Court held that         a   void -for -vagueness challenge to the
    sentencing statute under which the appellant was sentenced was not
    cognizable under the PCRA, relying on              a   prior decision, Commonwealth v.
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    Lawrence, 
    99 A.3d 116
    , 122               (Pa. Super. 2014), where this Court had
    determined that Lawrence's void -for -vagueness challenge was not an illegal -
    sentencing claim, after finding that that claim clearly did not implicate any of
    the    other eligibility -for -relief provisions    of the    PCRA,   42     Pa.C.S.   §
    9543(a)(2)(i-viii).
    In Commonwealth v. West, 
    938 A.2d 1034
    (Pa. 2007), our Supreme
    Court was confronted with         a   unique circumstance where the trial court had
    failed to summon the defendant to serve his sentence for more than            a   decade
    after his conviction.       
    Id. at 1037.
         As a result, the defendant had been
    deprived of any meaningful opportunity to challenge his conviction on appeal.
    The defendant filed     a   habeas corpus petition challenging his imprisonment.
    The Commonwealth claimed that the PCRA "was the sole means by which West
    could obtain relief" but that, if construed as      a PCRA   petition, West's habeas
    corpus petition was untimely.         
    Id. at 1038.
    Our Supreme Court rejected that
    view, concluding that the underlying due process claim raised by West was
    not cognizable under the PCRA and, therefore, that he could challenge his
    delayed incarceration in     a   habeas corpus petition.   
    Id. at 1044-45.
            Finally, in Judge, our Supreme Court determined that          a    claim raised
    pursuant to the International Covenant for Civil and Political Rights was not
    cognizable under the PCRA. Thus, Judge "was entitled to raise his claim in             a
    petition for writ of habeas corpus." 
    Judge, 916 A.2d at 526
    . Notably, in none
    of the decisions did the Superior or Supreme Court suggest that the
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    untimeliness of   a PCRA   petition was   a   relevant consideration as to whether      a
    claim was cognizable under the PCRA.
    Thus, we are compelled to conclude that the PCRA court did not err when
    it denied Appellant's motion to convert his PCRA petition into       a   habeas corpus
    petition. As Appellant provides no argument as to why the court should have
    permitted him to convert his PCRA petition into          a   coram nobis petition, we
    deem that issue waived for our review.             Furthermore, we deny Appellant's
    request for habeas corpus relief before this Court, as the PCRA          is sole   avenue
    for relief for Muniz claims.
    Order   affirmed.
    Judgment Entered.
    J   seph D. Seletyn,
    Prothonotary
    Date: 7/26/19
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