Com. v. Pollard, W., Sr. ( 2019 )

J-S33009-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WESLEY MORGAN POLLARD, SR. :
:
Appellant : No. 1971 MDA 2018
Appeal from the PCRA Order Entered November 7, 2018
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0003717-2011
BEFORE: LAZARUS, J., OTT, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 09, 2019
Wesley Morgan Pollard, Sr., appeals from the order denying his second
petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§
9541-9546. After careful review, we affirm.
In 1990, Pollard pled guilty to involuntary deviate sexual intercourse.1
Pollard registered as a sex offender under Megan’s Law III on June 30, 2007,
which imposed a lifetime registration requirement. On September 20, 2012,
Pollard was sentenced to a term of ten to twenty years’ incarceration after
providing a false address of residency in violation of 18 Pa.C.S. § 4915(a)(3).
On direct appeal, this Court affirmed Pollard’s judgment of sentence on May
22, 2013. Commonwealth v. Pollard, 81 A.3d 1002 (Pa. Super. 2013).
Pollard did not seek allowance of appeal in the Pennsylvania Supreme Court.
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1 18 Pa.C.S. § 3123.
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Pollard filed his first PCRA petition on May 15, 2014. The PCRA court
denied this petition on November 6, 2014, and Pollard filed a timely notice of
appeal on December 8, 2014. On January 28, 2016, this Court affirmed the
PCRA court’s order denying relief. Commonwealth v. Pollard, 136 A.3d
1039 (Pa. Super. 2016).
On July 31, 2018, Pollard filed a second PCRA petition, and on
September 14, 2018, he filed a petition for writ of habeas corpus. On
November 7, 2018, the PCRA court treated Pollard’s petition for a writ of
habeas corpus as subsumed within his PCRA petition, and the court denied
relief. This timely appeal followed, in which Pollard raises the following issues
for our review:
1. Whether the trial court committed reversible error when it held
that [Pollard] had a remedy under the Post Conviction Relief
Act and therefore, was ineligible for relief via a Petition for Writ
of Habeas Corpus?
2. Whether the rule that convictions under Megan’s Law III are
null and void announced in Commonwealth v. Derhammer
[173 A.3d 723 (Pa. 2017),] is a substantive rule that should
apply retroactively in the context of the Post Conviction Relief
Act?
Appellant’s Brief, at 4.
Generally, a petition for PCRA relief, including a second or subsequent
petition, must be filed within one year of the date the judgment is final, see
42 Pa.C.S.A. § 9545(b)(3), unless one of the exceptions in section
9545(b)(1)(i)-(iii) applies and the petition is filed within one year of the date
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the claim could have been presented.2 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 time for seeking the review.” 42 Pa.C.S. 9545(b)(3).
Here, Pollard’s judgment of sentence became final on June 21, 2013, at
the expiration of time for seeking further review by our Supreme Court. See
Pa.R.A.P. 1113. Pollard, therefore, had until June 21, 2014 to file any and all
timely petitions under the PCRA. The instant petition, filed in 2018, is patently
untimely.
In his first claim, Pollard argues the PCRA court erred in treating his
petition for writ of habeas corpus as a PCRA petition. Pollard attempts to
circumvent the PCRA time-bar by labeling his petition a writ of habeas corpus.
An issue that is cognizable under the PCRA must be raised in a timely PCRA
petition and may not be mislabeled in an attempt to circumvent the PCRA’s
timeliness requirements. See Commonwealth v. Taylor, 65 A.3d 462, 466
(Pa. Super. 2013). Despite Pollard’s attempt to label his request for relief as
a petition for a writ of habeas corpus, relief was available under the PCRA and,
therefore, his claim is subsumed by the PCRA and subject to the one-year
____________________________________________
2 Section 9545(b)(2) was amended on October 24, 2018, effective in 60 days
(Dec. 24, 2018), extending the time for filing from sixty (60) days of the date
the claim could have been presented, to one year. The amendment applies to
claims arising on December 24, 2017, or thereafter. See Act 2018, Oct. 24,
P.L. 894, No. 146, § 3. Here, the one-year time limit applies to Pollard’s
petition, as he filed his petition on July 31, 2018.
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time period. 42 Pa.C.S. § 9541(b). See Taylor, supra at 466 (unless PCRA
does not provide potential remedy, PCRA subsumes writ of habeas corpus).
In other words, “a defendant cannot escape the PCRA time-bar by filing his
petition or motion as a writ of habeas corpus.” Id. Pollard’s first issue,
therefore, is meritless.
Next, Pollard argues that the rule announced in Derhammer is a
substantive rule that should apply retroactively in the context of his PCRA
petition. Appellant’s Brief, at 8. In Derhammer, our Supreme Court held a
defendant could not be prosecuted for violating the registration requirement
of Megan’s Law III because, at the time of defendant’s trial, Megan’s Law III
had been declared unconstitutional. Derhammer, 173 A.3d at 729-30.
However, because Pollard’s PCRA petition is untimely, he must demonstrate
that the United States Supreme Court or the Pennsylvania Supreme Court has
held that the rule in Derhammer applies retroactively in order to satisfy
section 9545(b)(1)(iii). He has not. Because at this time no such holding has
been issued, Pollard cannot rely on Derhammer to meet the timeliness
exception. See Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa.
2002).
The time limitations of the PCRA implicate this Court’s jurisdiction and
may not be altered or disregarded in order to address the underlying merits
of a claim. 42 Pa.C.S. § 9545(b)(1)(i)-(iii). Pollard filed his petition more
than one year after his judgment of sentence became final and he has failed
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to establish an exception to the PCRA’s timeliness requirements. Therefore,
the PCRA court lacked jurisdiction to address the merits of Pollard’s claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2019
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