Com. v. Hollingshead, K.

J-S83024-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KYLA HOLLINGSHEAD :
:
Appellant : No. 718 WDA 2018
Appeal from the Order April 19, 2018
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0001252-2013
BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED MAY 30, 2019
Appellant, Kyla Hollingshead, appeals from the order denying her
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541-9546. We affirm.
Previously, this Court summarized the history of this case as follows:
The factual background of this case is as follows. In August
2010, Appellant was hired by Altoona Area High School to serve
as an assistant coach of the girls’ soccer team. In October 2010,
Appellant began a romantic relationship with a 15-year-old player
on the team. In October 2012, Appellant began a romantic
relationship with a 16-year-old player on the team. Eventually,
both relationships led to sexual contact between Appellant and the
players.
The procedural history of this case is as follows. On June
21, 2013, Appellant was charged via criminal information with two
counts of corruption of minors1 and one count of institutional
sexual assault.2 On December 9, 2013, Appellant pled guilty to
one count [each] of corruption of minors and institutional sexual
assault. She was immediately sentenced to 60 days to 23 ½
months’ imprisonment followed by 30 months’ probation. The trial
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court also ordered that the Sexual Offender Assessment Board
(“SOAB”) evaluate Appellant to determine if she met the criteria
to be classified as [a sexually violent predator (“SVP”)].
1 18 Pa.C.S.A. § 6301(a)(1).
2 18 Pa.C.S.A. § 3124.2(a)(2.1).
On March 17, 2014, the Commonwealth filed a praecipe for
an SVP hearing, which occurred on June 3, 2014. Corrine
Scheuneman, MA, LPC, a member of the SOAB, testified on behalf
of the Commonwealth and Dr. Timothy Foley testified on behalf of
Appellant. After considering post-hearing briefs, the trial court
designated Appellant an SVP, and issued an opinion explaining its
rationale.
Commonwealth v. Hollingshead, 111 A.3d 186, 188-189 (Pa. Super.
2015).
Appellant filed a timely direct appeal.1 This Court affirmed Appellant’s
judgment of sentence on February 19, 2015. Hollingshead, 111 A.3d 186.
On October 14, 2015, our Supreme Court denied Appellant’s petition for
allowance of appeal. Commonwealth v. Hollingshead, 125 A.3d 1199 (Pa.
2015).
On January 11, 2018, Appellant filed the instant PCRA petition, which
she entitled “Petitions Relative to Sexual Offender Registration.” PCRA
Petition, 1/11/18. In the petition, Appellant sought to vacate her SVP
determination and to terminate registration. Id. at 4. The PCRA court held a
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1 As this Court stated in Appellant’s direct appeal, “[Appellant] appeals from
the judgment of sentence entered on December 9, 2013, as made final by the
order entered on July 30, 2014 which designated [Appellant] as a[n SVP].”
Hollingshead, 111 A.3d at 188.
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hearing on February 27, 2018. Subsequently, both Appellant and the
Pennsylvania State Police filed memoranda of law. On April 19, 2018, the
PCRA court entered an order denying and dismissing Appellant’s petition. This
timely appeal followed. Both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
I. WHETHER THE TRIAL COURT ERRED IN DISMISSING THE
APPELLANT’S POST CONVICTION RELIEF ACT PETITION’S
REQUEST THAT HER SEXUALLY VIOLENT PREDATOR
DESIGNATION BE REMOVED DESPITE APPELLATE RULINGS TO
THE CONTRARY?
II. WHETHER THE TRIAL COURT ERRED IN DISMISSING THE
APPELLANT'S POST CONVICTION RELIEF ACT PETITION’S
REQUEST THAT SHE NOT BE SUBJECT TO SORNA I
REGISTRATION UNDER 42 PA.C.S.A. 9799.10 et seq. (CHAPTER
H) WHEN SORNA I HAS BEEN RENDERED OBSOLETE AND NO
LONGER VALID BY THE PASSAGE OF SORNA II (CHAPTER I)?
Appellant’s Brief at 4.
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
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support for them in the certified record. Commonwealth v. Lippert, 85 A.3d
1095, 1100 (Pa. Super. 2014).
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.2 See Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa.
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2 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;
(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
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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 affirmed by
this Court on February 19, 2015. Hollingshead, 111 A.3d 186. On October
14, 2015, our Supreme Court denied Appellant’s petition for allowance of
appeal. Hollingshead, 125 A.3d 1199. However, Appellant did not file a
petition for writ of certiorari with the United States Supreme Court.
Accordingly, Appellant’s judgment of sentence became final on January 12,
2016, ninety days after the Pennsylvania Supreme Court dismissed Appellant’s
appeal and the time for filing a petition for review with the United States
Supreme 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.”); U.S.Sup.Ct.R. 13. Thus, the instant PCRA petition, filed on January
11, 2018, is patently untimely.
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(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).
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As stated, if a petitioner does not file a timely PCRA petition, her petition
may nevertheless 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, she must file his petition within sixty days of
the date that the exception could be asserted.3 42 Pa.C.S. § 9545(b)(2).
Appellant attempts 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 her pursuant to the Sexual Offenders
Notification Act (“SORNA”) is unconstitutional under our Supreme Court’s July
19, 2017 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. This claim
fails.
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”
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3 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 claim arose on July 19,
2017, the date that the decision in Commonwealth v. Muniz, 164 A.3d 1189(Pa. 2016), was filed. Therefore, the amendment is inapplicable because the
decision in Muniz preceded December 24, 2017.
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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 [Commonwealth v.] Abdul-
Salaam, [812 A.2d 497, 501 (Pa. 2002)]. Because at this time,
no such holding has been issued by our Supreme Court, Appellant
cannot rely on Muniz to meet that timeliness exception.
Murphy, 180 A.3d at 405-406. Hence, in Murphy, we concluded that the
substantive rule recognized in Muniz does not establish a timeliness exception
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to the PCRA.4 Hence, no exceptions apply to exempt Appellant from failing to
meet 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. See Commonwealth v.
Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to
a court’s right or competency to adjudicate a controversy.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/30/2019
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4Even if Appellant could rely on Muniz to establish a timeliness exception,
her petition had to have been filed within sixty days of the decision, or by
September 18, 2017. It was not filed until three months later, on December
17, 2017. 42 Pa.C.S. § 9545(b)(2). Consequently, for this additional reason,
Appellant would not be entitled to invoke the timeliness exception.
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