Com. v. Hicks, W. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
:
v. :
:
:
WOODROW JOHN HICKS, JR. :
:
Appellant : No. 325 WDA 2019
Appeal from the Order Dated January 28, 2019
In the Court of Common Pleas of Indiana County Criminal Division at
No(s): CP-32-CR-0000467-2013
BEFORE: LAZARUS, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED SEPTEMBER 13, 2019
Appellant, Woodrow John Hicks, Jr., purports to appeal from the order
dated January 28, 2019, denying his post-sentence motions and changing his
sex offender registration from lifetime registration to a ten-year registration.
For the following reasons, we hold that the trial court had no jurisdiction to
address Appellant’s motions on the merits. Accordingly, we affirm the denial
of relief for Appellant’s post-sentence motions, albeit on other grounds, and
we vacate the order shortening the duration of Appellant’s sex offender
registration.
On September 24, 2014, a jury convicted Appellant of unlawful contact
with minor – sexual offenses; criminal attempt to commit statutory sexual
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* Retired Senior Judge assigned to the Superior Court.
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assault – 11 years older; corruption of minors – defendant age 18 or above;
simple assault; criminal use of communication facility; and fleeing or
attempting to elude officer.1 See Commonwealth v. Hicks, No. 268 WDA
2015, unpublished memorandum at 1-2 (Pa. Super. filed November 12, 2015).
On January 5, 2015, the trial court sentenced Appellant to an aggregate
judgment of sentence of 16 months to five years of confinement followed by
five years of probation. In addition, the trial court designated Appellant a sex
offender subject to lifetime registration. No post-sentence motions were filed.
Appellant proceeded to direct appeal, and this Court affirmed his judgment of
sentence. Id. at 1. Appellant filed a petition for allowance of appeal to the
Supreme Court of Pennsylvania, which was denied on April 20, 2016.
On October 20, 2017, Appellant filed a “Motion to Bar the Applicability
of Sex Offender Registration and/or Petition for Habeas Corpus.” On
September 24, 2018, Appellant submitted a motion to file post-sentence
motion, in which he requested that the trial court reinstate his right to file
post-sentence motions nunc pro tunc “relative to the weight of the evidence
issue[.]” Motion to File Post-sentence Motion, 9/24/2018, ad damnum clause
(unnecessary capitalization omitted). Later that same day, the trial court
granted the motion. On October 24, 2018, Appellant filed post-sentence
motions challenging the weight of the evidence.
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118 Pa.C.S. §§ 6318(a)(1), 901(a) (to commit § 3122.1(b)), 6301(a)(1)(ii),
2701(a)(1), and 7512(a) and 75 Pa.C.S. § 3733(a).
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On January 28, 2019, the trial court entered an order, along with an
accompanying opinion, denying the post-sentence motions and changing
Appellant’s sex offender registration from lifetime registration to a ten-year
registration. On February 22, 2019, Appellant filed a timely notice of appeal.2
Appellant now presents the following issues for our review:
1. Did the trial court err when it denied [Appellant]’s post
sentence motion on the issue of weight of the evidence relative to
the charge of unlawful contact with a minor?
2. Did the trial court err when it denied [Appellant]’s post
sentence motion on the issue of weight of the evidence relative to
the charge of criminal attempt – statutory sexual assault?
3. Did the trial court err when it denied [Appellant]’s post
sentence motion on the issue of weight of the evidence relative to
the charge of corruption of minors?
4. Did the trial court err when it denied [Appellant]’s post
sentence motion on the issue of weight of the evidence relative to
the charge of criminal use of communication facility?
5. Did the trial court err when it made a finding that [Appellant]
was required to register under SORNA[3] for a period of ten years,
even though the registration requirement causes a presumption
dangerous and denies [Appellant] his fundamental right to
reputation[?]
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2On March 18, 2019, Appellant filed his statement of errors complained of on
appeal. Later that same day, the trial court entered an order stating that the
opinion accompanying its order of January 28, 2019, would serve as its opinion
pursuant to Pa.R.A.P. 1925(a).
3 “Megan’s Law IV [is] more commonly known as the Sexual Offender
Registration and Notification Act (‘SORNA’). SORNA went into effect on
December 20, 2012, and provided for the expiration of Megan’s Law III at that
time.” Commonwealth v. Derhammer, 173 A.3d 723, 724-25 (Pa. 2017)
(footnote omitted).
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Appellant’s Brief at 6 (suggested answers and unnecessary capitalization
omitted).
Preliminarily, “[e]ven where neither party nor the [trial] court have
addressed the matter, it is well-settled that we may raise [questions of
jurisdiction] sua sponte[.]” Commonwealth v. Callahan, 101 A.3d 118, 121
(Pa. Super. 2014). We therefore must first determine whether the trial court
had jurisdiction to grant reinstatement of Appellant’s right to file post-
sentence motions nunc pro tunc and rule on his 2017 and 2018 motions.
“[A] written post-sentence motion shall be filed no later than 10 days
after imposition of sentence[,]” Pa.R.Crim.P. 720(A), unless (1) “the appellant
files a motion seeking permission to file a post-sentence motion nunc pro tunc”
and (2) “the trial court expressly grants this request within thirty days of the
imposition of sentence.” See Commonwealth v. Patterson, 940 A.2d 493,
498 n.3 (Pa. Super. 2007). For the current appeal, Appellant’s judgment of
sentence was imposed on January 5, 2015. He did not file post-sentence
motions within 10 days, and his motion seeking permission to file post-
sentence motions nunc pro tunc was not filed until September 24, 2018 –
more than three years late. Appellant’s motion for reinstatement of the right
to file post-sentence motions nunc pro tunc was thus untimely, and the trial
court should not have considered it.
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Furthermore, “any petition filed after the judgment of sentence becomes
final will be treated as a [Post Conviction Relief Act (“PCRA”)4] petition.”
Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007). In the
current action, Appellant’s judgment of sentence became final on July 19,
2016 – i.e., 90 days after the Pennsylvania Supreme Court denied his petition
for allowance of appeal on April 20, 2016. U.S. Sup. Ct. R. 13. Appellant filed
his “Motion to Bar the Applicability of Sex Offender Registration” on
October 20, 2017, and his motion to file post-sentence motion on
September 24, 2018. Accordingly, both motions were filed after Appellant’s
judgment of sentence became final and, consequently, must be treated as
PCRA petitions.
The timeliness of a PCRA petition is jurisdictional. Callahan, 101 A.3d
at 121; Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
of sentence is final, unless the petition alleges and the petitioner proves one
of the three exceptions to the time limitations for filing the petition set forth
in section 9545(b) of the statute. See 42 Pa.C.S. § 9545(b)(1).5
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4 42 Pa.C.S. §§ 9541–9546.
5 The three exceptions to the timeliness requirement are:
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Appellant had one year after his judgment of sentence became final to
file a PCRA petition – i.e., until July 19, 2017. 42 Pa.C.S. § 9545(b)(1).
Appellant filed both motions at issue after that date. Therefore, Appellant’s
motions were patently untimely, and he did not plead a timeliness exception
to the requirements of the PCRA in either motion.
The trial court hence did not have jurisdiction to reinstate Appellant’s
right to file post-sentence motions nunc pro tunc; ergo, the denial of
Appellant’s post-sentence motions – which never should have been allowed to
be filed in the first place -- was ultimately the correct result. We thus affirm
the denial of relief on Appellant’s post-sentence motions, albeit on other
grounds. See Commonwealth v. Beatty, 207 A.3d 957, 964 (Pa. Super.
2019) (citing Commonwealth v. Reese, 31 A.3d 708, 727 (Pa. Super. 2011)
(en banc) (appellate court may affirm on any basis as long as ultimate decision
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(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;
(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)-(iii).
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is correct)). The trial court also did not have jurisdiction to consider
Appellant’s motion to change the length of his sex offender registration; we
therefore vacate that portion of the order at issue.6
Order affirmed in part and vacated in part.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/2019
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6 We note that the trial court never stated whether it considered the section
of Appellant’s filing of October 20, 2017, labelled “Petition for Habeas Corpus.”
Irrespective of whether the trial court considered this “Petition for Habeas
Corpus,” the result would be the same, as it would properly be considered a
PCRA petition, as habeas corpus petitions have been subsumed into the PCRA.
42 Pa.C.S. § 9542 (“The action established in this subchapter [-- i.e., the
PCRA --] 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”); see also
Commonwealth v. Turner, 80 A.3d 754, 770 (Pa. 2013) (PCRA “subsumes
the remedies of habeas corpus”).
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