Com. v. Coppolino, R.

J. A21038/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RICHARD COPPOLINO, : No. 822 EDA 2019
:
Appellant :
Appeal from the PCRA Order Entered March 4, 2019
In the Court of Common Pleas of Montgomery County
Criminal Division at No. CP-46-CR-0010128-2001
BEFORE: BOWES, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 14, 2019
Richard Coppolino appeals from the March 4, 2019 order entered by the
Court of Common Pleas of Montgomery County denying his petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. After careful review, we affirm.
On August 3, 2001, a jury convicted appellant of one count of
involuntary deviate sexual intercourse, three counts of aggravated indecent
assault, and one count each of simple assault, recklessly endangering another
person, unlawful restraint, terroristic threats, and intimidation of a witness.1
The trial court sentenced appellant to a term of 61-122 months’ imprisonment
to be followed by 3 years’ probation on November 26, 2001. On November 27,
1 18 Pa.C.S.A. §§ 3123(a)(1), 3125(a)(1), 2701(a)(1), 2705, 2902(a)(1),
2706, and 4952(a)(3), respectively.
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2002, a previous panel of this court affirmed appellant’s judgment of
sentence, and our supreme court denied appellant’s petition for allowance of
appeal on June 30, 2003. Commonwealth v. Coppolino, 816 A.2d 326(Pa.Super. 2002) (unpublished memorandum), appeal denied, 827 A.2d 429(Pa. 2003). Appellant did not seek further review in the Supreme Court of the
United States.
Appellant filed a timely first PCRA petition on September 27, 2004.
Following an agreement between counsel, the PCRA court reduced appellant’s
sentence to 35 months and 11 days to 70 months and 22 days’ imprisonment
to be followed by 4 years’ probation.
On June 16, 2010, appellant filed a petition for a writ of habeas corpus,
in which he averred that he should not be subject to registration and reporting
requirements pursuant to Megan’s Law. Following a conference, the PCRA
court dismissed appellant’s petition on December 1, 2010. A previous panel
of this court affirmed the PCRA court’s denial of relief, but remanded for
appellant to be properly notified of his obligations pursuant to Megan’s Law.
Commonwealth v. Coppolino, 40 A.3d 193 (Pa.Super. 2011 (unpublished
opinion). Appellant filed a petition for allowance of appeal with our supreme
court, which was denied on May 31, 2012. Commonwealth v. Coppolino,
47 A.3d 844 (Pa. 2012).
On January 16, 2018, appellant filed the instant PCRA petition/petition
for writ of habeas corpus. Therein, he argued that he should not be subject
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to the reporting and registration requirements of the Sex Offender
Registration and Notification Act (“SORNA”) due to the holding of
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), which holds that
application of SORNA to sex offenders who committed their crimes prior to
SORNA’s enactment constitutes an ex post facto violation under both the
United States and Pennsylvania Constitutions. Appellant filed an amended
PCRA petition/petition for writ of habeas corpus on May 9, 2018.
The PCRA court filed a notice of intention to dismiss appellant’s PCRA
petition without a hearing pursuant to Pa.R.Crim.P. 907 on October 31, 2018,
and appellant filed a response on November 16, 2018. Appellant subsequently
filed a supplemental response on January 14, 2019. The PCRA court dismissed
appellant’s petition on March 4, 2019. Subsequent to the PCRA court’s
dismissal of appellant’s petition, appellant filed an addendum to his
supplemental response to the PCRA court’s Rule 907 notice on March 8, 2019.
Appellant timely filed a notice of appeal on March 15, 2019. The PCRA
court did not order appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). On April 17, 2019, the PCRA
court filed an opinion pursuant to Pa.R.A.P. 1925(a).
Appellant raises the following issues for our review:
[I.] Is the appellant’s claim reviewable as a habeas
corpus petition? If not, was appellant’s petition
untimely?
[II.] Is the appellant entitled to relief where the
Commonwealth seeks to enforce retroactive
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sentencing obligations upon the appellant under
Act 10 of 2018?
Appellant’s brief at 2 (extraneous capitalization omitted).2
In order to reach a decision on appellant’s first issue, we must determine
whether the instant petition is within the purview of the PCRA or, alternatively,
should be reviewed as a petition for a writ of habeas corpus. Appellant
contends that the issues raised in his petition fall outside of the scope of the
PCRA and should, therefore, be reviewed under the standards for petitions for
a writ of habeas corpus. (Id. at 9.)
It is well-settled that the PCRA is intended to be the
sole means of achieving post-conviction relief.
42 Pa.C.S.[A.] § 9542; Commonwealth v. Haun, []
32 A.3d 697 ([Pa.] 2011). Unless the PCRA could not
provide for a potential remedy, the PCRA statute
subsumes the writ of habeas corpus.
[Commonwealth v. Fahy, 737 A.2d 214, 223-224
(Pa. 1999)]; Commonwealth v. Chester, [] 733
A.2d 1242 ([Pa.] 1999). Issues that are cognizable
under the PCRA must be raised in a timely PCRA
petition and cannot be raised in a habeas corpus
petition. See Commonwealth v. Peterkin, [] 722
A.2d 638 ([Pa.] 1998); see also Commonwealth v.
Deaner, 779 A.2d 578 (Pa.Super. 2001) (a collateral
petition that raises an issue that the PCRA statute
could remedy is to be considered a PCRA petition).
Phrased differently, a defendant cannot escape the
PCRA time-bar by titling his petition or motion as a
writ of habeas corpus.[Footnote 3]
[Footnote 3] The common law writ of
habeas corpus has not been eliminated.
In both Commonwealth v. West, [] 938
A.2d 1034 ([Pa.] 2007) and
2 For ease of discussion, we have re-ordered appellant’s issues raised on
appeal.
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Commonwealth v. Judge, [] 916 A.2d
511 ([Pa.] 2007), our Supreme Court held
that claims that fall outside the sphere of
the PCRA can be advanced via a writ of
habeas corpus.
Commonwealth v. Taylor, 65 A.3d 462, 465-466 (Pa.Super. 2013).
Here, appellant contends that his petition does not challenge the
propriety of his underlying conviction or sentence; therefore, his petition does
not fall under the purview of the PCRA.3 We disagree. In Commonwealth
v. Greco, 203 A.3d 1120, 1123 (Pa.Super. 2019), we determined that
because our supreme court had held that SORNA’s retroactive application
violates state and federal ex post facto clauses, the legality of a defendant’s
sentence is implicated, thereby implicating the PCRA. Id., citing
Commonwealth v. Butler, 173 A.3d 1212, 1215 (Pa.Super. 2017);
Commonwealth v. Murphy, 180 A.3d 402, 405-406 (Pa.Super. 2018).
Accordingly, we find that the trial court did not err when it reviewed
appellant’s petition as a PCRA petition.
We must now determine whether appellant’s PCRA petition was timely
filed. The PCRA requires that any petition for collateral relief be filed within
3 We note that appellant cites cases in which challenges to the applicability of
Megan’s Law and its successor, SORNA, were treated as writs of
habeas corpus. (See appellant’s brief at 9, citing Commonwealth v.
Giannantonio, 114 A.3d 429, 433 (Pa.Super. 2014), and Commonwealth
v. Miller, 787 A.2d 1036, 1038 (Pa.Super. 2001).) Both cases are inapposite
here, as neither addresses an underlying conviction in Pennsylvania state
courts. The defendant in Giannantonio pled guilty to sexual offenses in
federal court, while the defendant in Miller was convicted in Hawaii. See
Giannantonio, 114 A.3d at 431; Miller, 787 A.2d at 1037.
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one year of the date that the judgment of sentence becomes final.
42 Pa.C.S.A. § 9545(b)(1). “[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.” Commonwealth v. Callahan, 101 A.3d 118,
122 (Pa.Super. 2014), quoting 42 Pa.C.S.A. § 9545(b)(3). A petitioner may
only timely file a PCRA petition beyond one year of the date the judgment of
sentence becomes final if:
(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.A. § 9545(b)(i)-(iii).
“[T]he time limitations pursuant to . . . the PCRA are
jurisdictional.” [Fahy, 737 A.2d at 222.]
“[Jurisdictional time] limitations are mandatory and
interpreted literally; thus, a court has no authority to
extend filing periods except as the statute permits.”
Id. “If the petition is determined to be untimely, and
no exception has been pled and proven, the petition
must be dismissed without a hearing because
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Pennsylvania courts are without jurisdiction to
consider the merits of the petition.” Commonwealth
v. Perrin, 947 A.2d 1284, 1285 (Pa.Super. 2008).
Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.Super. 2011), appeal
denied, 47 A.3d 845 (Pa. 2012).
Here, appellant’s judgment of sentence became final on September 28,
2003, following the conclusion of the period in which appellant could have filed
a petition for a writ of certiorari with the Supreme Court of the United States.
See U.S. Sup. Ct. R. 13. Appellant filed the PCRA petition at issue on
January 16, 2018—over 14 years after his judgment of sentence became final
and over 13 years after a PCRA petition could be considered timely. See
42 Pa.C.S.A. § 9545(b)(1).
Appellant argues that he is entitled to relief because he filed the PCRA
petition at issue within 60 days of the effective date of SORNA. (Appellant’s
brief at 10.) He further argues that our supreme court’s decision in Muniz
renders his registration requirements unconstitutional. (Id. at 10-11.)
Newly enacted legislation is not an exception to the jurisdictional
time-bar recognized by the PCRA. Moreover, Muniz does not provide
appellant with an avenue toward relief. Indeed, the Muniz court held that the
retroactive application of SORNA’s registration requirements violates the
federal ex post facto clauses of both the United States and Pennsylvania
Constitutions. Muniz, 164 A.3d at 1123. The court, however, did not create
a retroactive right as contemplated by Section 9545(b)(1)(iii) of the PCRA.
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Commonwealth v. Murphy, 180 A.3d 402, 405 (Pa.Super. 2018), appeal
denied, 195 A.3d 559 (Pa. 2018). As conceded by appellant, this court held
Muniz applied retroactively on collateral review only in cases involving timely
filed PCRA petitions. See Commonwealth v. Rivera-Figueroa, 174 A.3d
674, 678 (Pa.Super. 2017); Commonwealth v. Knecht, A.3d , 2019
WL 4459069 (Pa.Super. September 18, 2019).
Accordingly, we find that appellant has neither pled nor proved an
exception to the PCRA time-bar. Therefore, we do not have jurisdiction to
consider the merits of the issues raised by appellant on appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/19
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