Com. v. Cosby, D. ( 2020 )

J-S12004-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONOVAN COSBY :
:
Appellant : No. 1500 EDA 2019
Appeal from the PCRA Order Entered April 18, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000617-2007
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONOVAN COSBY :
:
Appellant : No. 1501 EDA 2019
Appeal from the PCRA Order Entered April 18, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000621-2007
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONOVAN COSBY :
:
Appellant : No. 1502 EDA 2019
Appeal from the PCRA Order Entered April 18, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1008801-2005
J-S12004-20
BEFORE: SHOGAN, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY SHOGAN, J.: FILED MAY 12, 2020
Appellant, Donovan Cosby, appeals from the order dismissing his
petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§
9541-9546, in the above captioned cases. We affirm.
The trial court set forth the history of this matter as follows:
On August 21, 2007, [Appellant] entered into a negotiated
guilty plea before this court to Involuntary Deviate Sexual
Intercourse2, Indecent Assault Person Less than 13 years of Age3,
Indecent Assault Person Less than 16 years of Age4, [two counts
of] Contact/Communication with a Minor5, [two counts of]
Corruption of Minors6 and Rape7.[1] [Appellant] was sentenced to
an aggregate term of fifteen (15) to thirty (30) years of
imprisonment, followed by eight (8) years of probation and
mandatory registration as a sex offender for ten (10) years under
Megan’s Law III8 on March 7, 2008. [Appellant] did not file a
direct appeal. On April 11, 2018, [Appellant] filed the instant pro
se PCRA petition, his first, following the Pennsylvania Supreme
Court decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
2017) (retroactive application of the Sex Offender Registration
and Notification Act (SORNA) is unconstitutional).[2] In
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* Retired Senior Judge assigned to the Superior Court.
1 The certified records in these matters reflect that Appellant pled guilty at CP-
51-CR-0000617-2007 to charges of contact/communication with a minor,
corruption of minors, and indecent assault person less than 16 years of age,
which crimes occurred on June 1, 2003. With regard to CP-51-CR-0000621-
2007, Appellant pled guilty to charges of involuntary deviate sexual
intercourse and indecent assault person less than 13 years of age, which
crimes occurred on August 1, 2004. In addition, at CR-51-CR-1008801-2005,
Appellant pled guilty to rape, contact/communication with a minor, and
corruption of minors, which crimes occurred on January 1, 2001.
2Appellant filed a single pro se document listing all three of the trial court
docket numbers.
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accordance with Pa.R.Crim.P. 904, this court appointed J. Matthew
Wolfe, Esquire, to represent [Appellant]. Counsel filed an
Amended PCRA Petition on July 10, 2018. [3] On February 11,
2019, the Commonwealth filed a Motion to Dismiss claiming
[Appellant’s] PCRA petition was untimely. On March 19, 2019,
this court, agreeing with the Commonwealth’s position, issued a
Notice of Intent to Dismiss pursuant to Pa.R.Crim.P. 907 (“907
Notice”). The petition was formally dismissed due to untimeliness
on April 18, 2019.[4] [Appellant] filed a Notice of Appeal to the
Pennsylvania Superior Court on May 17, 2019.[5] On May 21,
2019, this court issued an Order pursuant to Pa.R.A.P. 1925(b).
[Appellant] filed a Statement of Matters Complained of on Appeal
(“1925(b) Statement”) on June 14, 2019.
2 18 Pa.C.S. § 3123(a)(6).
3 18 Pa.C.S. § 3126(a)(7).
4 18 Pa.C.S. § 3126(a)(8).
5 18 Pa.C.S. § 6318(a)(1).
6 18 Pa.C.S. § 6301 (a)(1).
7 18 Pa.C.S. § 3121(a)(1).
8 42 Pa.C.S. §§ 9795.1-9799.4.
Trial Court Opinion, 7/30/19, at 1-2.
Appellant has filed with this Court three identical appellate briefs, except
for the fact that each bears a different trial court docket number. The
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3Appointed counsel filed an amended PCRA petition containing all three trial
court docket numbers.
4 Both the PCRA court’s notice of intent to dismiss and the order dismissing
the PCRA petition listed all three trial court docket numbers.
5 Appellant filed three separate notices of appeal in compliance with
Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018).
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Commonwealth has not filed an Appellee’s brief. On January 29, 2020, this
Court entered an order consolidating the appeals sua sponte.
Appellant presents the following issue for our consideration:
1. Is the Appellant’s sentence illegal as it requires that he comply
with the registration requirements of Megan’s Law III.
Appellant’s Brief at 7.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc)). This Court is limited to determining whether the evidence of
record supports the conclusions of the PCRA court and whether the ruling is
free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.
2016). The PCRA court’s findings will not be disturbed unless there is no
support for them in the certified record. Commonwealth v. Lippert, 85 A.3d
1095, 1100 (Pa. Super. 2014).
Appellant argues that he has been subjected to an illegal sentence.
Appellant’s Brief at 10. He observes that a challenge to the legality of a
sentence may be raised as a matter of right and cannot be waived. Id.Generally, it is correct that a challenge to the legality of a sentence
cannot be waived. However, our Supreme Court has long held that an issue
raising a claim of an illegal sentence remains subject to the timeliness
restrictions of the PCRA. See Commonwealth v. Fahy, 737 A.2d 214, 223
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(Pa. 1999) (stating that “[a]lthough legality of sentence is always subject to
review within the PCRA, claims must still first satisfy the PCRA’s time limits or
one of the exceptions thereto”). Accordingly, Appellant must meet the
requirements of the PCRA in order to have his claim reviewed.
A PCRA petition must be filed within one year of the date that the
judgment of sentence 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 time for seeking the
review.” 42 Pa.C.S. § 9545(b)(3). This time requirement is mandatory and
jurisdictional in nature, and the court may not ignore it in order to reach the
merits of the petition. Commonwealth v. Hernandez, 79 A.3d 649, 651
(Pa. Super. 2013).
However, an untimely petition may be received when the petition
alleges, and the petitioner proves, that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii), and
(iii), is met.6 See Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa.
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6 The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States;
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Super. 2008) (to properly invoke a statutory exception to the one-year time-
bar, the PCRA demands that the petitioner properly plead all required
elements of the relied-upon exception).
As previously noted, Appellant’s judgment of sentence was entered on
March 7, 2009. However, Appellant did not file a direct appeal. Accordingly,
Appellant’s judgment of sentence became final on April 7, 2009,7 thirty days
after the time for filing a direct appeal with this Court expired. See 42 Pa.C.S.
§ 9545(b)(3) (providing that “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.”); Pa.R.A.P. 903(a). Thus, Appellant had until
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(ii) the facts upon which the claim is predicated were unknown
to the petitioner and could not have been ascertained by the
exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or the
Supreme Court of Pennsylvania after the time period provided in
this section and has been held by that court to apply retroactively.
42 Pa.C.S. § 9545(b)(1)(i), (ii), and (iii).
7 We note that a notice of appeal needed to be filed on or before Monday, April
7, 2008, because April 6, 2008, was a Sunday. See 1 Pa.C.S. § 1908 (stating
that, for computations of time, whenever the last day of any such period shall
fall on Saturday or Sunday, or a legal holiday, such day shall be omitted from
the computation).
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April 7, 2009, to file a timely PCRA petition. Consequently, the instant PCRA
petition, filed on April 11, 2018, is patently untimely.
As stated, if a petitioner does not file a timely PCRA petition, his petition
may be received under any of the three limited exceptions to the timeliness
requirements of the PCRA. 42 Pa.C.S. § 9545(b)(1). If a petitioner asserts
one of these exceptions, he must file his petition within sixty days of the date
that the exception could be asserted.8 42 Pa.C.S. § 9545(b)(2).
In his pro se PCRA petition, Appellant argued that he has satisfied the
third exception to the PCRA timeliness requirement. Pro Se PCRA Petition,
4/11/18, at 1. However, for the reasons discussed below, Appellant failed to
satisfy the “newly recognized constitutional right” exception to the time-bar
under Section 9545(b)(1)(iii) by arguing that the registration requirement
imposed upon him is unconstitutional under our Supreme Court’s decision in
Muniz, 164 A.3d 1189 (holding SORNA’s registration provisions are punitive
and retroactive application of SORNA’s provisions violates the ex post facto
clause of the Pennsylvania Constitution).
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8 On October 24, 2018, the General Assembly amended Section 9545(b)(2),
extending the time for filing a petition from sixty days to one year from the
date the claim could have been presented. 2018 Pa. Legis. Serv. Act 2018-
146 (S.B. 915), effective December 24, 2018. The amendment applies only
to claims arising one year before the effective date of this section, which is
December 24, 2017, or thereafter. Here, Appellant’s alleged claim arose on
July 19, 2017, the date that the decision in Commonwealth v. Muniz, 164
A.3d 1189 (Pa. 2017), was filed. Therefore, the amendment is inapplicable
because the decision in Muniz preceded December 24, 2017.
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Regarding this exception, our Supreme Court explained:
Subsection (iii) of Section 9545(b)(1) 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
the Supreme Court of Pennsylvania 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.
Commonwealth v. Copenhefer, 941 A.2d 646, 649-650 (Pa. 2007)
(quoting Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa. 2002))
(emphases added).
We have held that Muniz created a substantive rule of constitutional
law that must apply retroactively in timely PCRA proceedings.
Commonwealth v. Rivera–Figueroa, 174 A.3d 674, 678 (Pa. Super. 2017).
Thereafter, in Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super. 2018),
appeal denied, 195 A.3d 559 (Pa. 2018), we stated the following:
[W]e acknowledge that 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, 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 Abdul-Salaam, supra. Because at
this time, no such holding has been issued by our Supreme Court,
Appellant cannot rely on Muniz to meet that timeliness exception.
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Murphy, 180 A.3d at 405-406. Thus, in Murphy we concluded that the
substantive rule recognized in Muniz does not establish a timeliness exception
to the PCRA. See also Commonwealth v. Greco, 203 A.3d 1120, 1125 (Pa.
Super. 2019) (vacating and remanding case where trial court entertained
untimely PCRA petition stating that defendant did not have to comply with
SORNA registration requirements).9 Hence, no exceptions apply to exempt
Appellant from meeting the timeliness requirement of the PCRA.
In conclusion, because Appellant’s PCRA petition was untimely and no
exceptions apply, the PCRA court lacked jurisdiction to address the issues
presented and grant relief. See Commonwealth v. Fairiror, 809 A.2d 396,
398 (Pa. Super. 2002) (holding that PCRA court lacks jurisdiction to hear
untimely petition). Likewise, we lack the authority to address the merits of
any substantive claims raised in the PCRA petition.
Order affirmed.
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9 Moreover, to the extent Appellant would have us ignore the holdings in
Murphy and Greco, Appellant’s Brief at 11, we observe that we must follow
the decisional law established by our own Court. Commonwealth v.
Santiago, 980 A.2d 659, 666 n.6 (Pa. Super. 2009). Unless or until Murphy
and Greco are overturned by an en banc panel of this Court or by a decision
of the Pennsylvania Supreme Court, they continue to be viable precedent for
this Court and for the courts of common pleas. Id.-9-
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/12/2020
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