Com. v. Yunik, J.

J-S21039-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAY VAL YUNIK, :
:
Appellant : No. 1531 WDA 2016
Appeal from the PCRA Order September 1, 2016
in the Court of Common Pleas of Crawford County
Criminal Division at No(s): CP-20-CR-0001000-1999
BEFORE: LAZARUS, DUBOW, AND STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MAY 30, 2017
Jay Val Yunik (Appellant) appeals from the September 1, 2016 order
dismissing his petition for writ of coram nobis. We affirm.
As we write for the parties only, a full recounting of the procedural
history is not necessary. On June 6, 2000, Appellant pled guilty to one
count of rape. On August 29, 2000, Appellant was sentenced to 54 to 180
months’ imprisonment. Appellant did not file a direct appeal. During his
imprisonment, Appellant filed PCRA petitions in 2001, 2005, 2006, 2007,
and 2011, all of which were dismissed.
On July 28, 2016, Appellant, through counsel, filed a petition for writ
of coram nobis challenging his conviction. On August 3, 2016, the PCRA
court issued notice that it was construing his petition as if filed pursuant to
the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, and it
*Retired Senior Judge assigned to the Superior Court.
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intended to dismiss the petition without a hearing. Memorandum and Order,
8/3/2016, at 1-2. After considering Appellant’s response, the PCRA court
dismissed his petition on September 1, 2016, explaining that Appellant was
not eligible for relief because he had completed his sentence and he had
previously litigated the allegations in prior PCRA petitions dismissed as
untimely filed. Id. at 2; Order, 9/1/2016, at 1-2. Appellant timely filed a
notice of appeal. Both Appellant and the PCRA court complied with Pa.R.A.P.
1925.
On appeal, Appellant asks this Court to determine whether the PCRA
court erred by considering Appellant’s petition for writ of coram nobis as if
filed under the PCRA and dismissing the petition because Appellant is no
longer serving his sentence. Appellant’s Brief at 2.
In determining whether the PCRA court properly characterized
Appellant’s petition as a PCRA petition, we observe the following.
The current version of Pennsylvania’s [PCRA] explicitly states
that it shall be the sole means of obtaining collateral relief and
that its provisions encompass[ ] all other common law and
statutory remedies for the same purpose that exist when this
subchapter takes effect, including habeas corpus and coram
nobis. Under the plain words of the statute, if the underlying
substantive claim is one that could potentially be remedied
under the PCRA, that claim is exclusive to the PCRA. It is only
where the PCRA does not encompass a claim that other collateral
procedures are available.
Commonwealth v. Pagan, 864 A.2d 1231, 1232–33 (Pa. Super. 2004)
(emphasis added) (internal citations and quotation marks omitted).
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Here, Appellant contended he was eligible for a writ of coram nobis
because (1) “forensic evidence, not admitted at trial, indicated that testing
for seminal fluid and hair on the alleged victim and/or her clothing ‘yielded
no results,’” and (2) “the alleged victim has recanted and … the [c]ourt, the
Crawford County DA’s office, and various counsel were made aware of this
by letter.” Petition for Writ of Coram Nobis, 7/28/2016, at ¶¶ 7-8.
Appellant alleged that these facts constituted “exculpatory evidence … not
revealed to him or … admitted at trial.” Response to Notice of Intent to
Dismiss Petition, 8/29/2016, at ¶ 5. It is unclear why Appellant pled his
claim in this manner, as he pled guilty and did not have a trial. However, it
appears that Appellant also was attempting to claim that his counsel’s
concealment of this exculpatory evidence unlawfully induced his guilty plea.
Petition for Writ of Coram Nobis, 7/28/2016, at ¶ 6.
To the extent Appellant presents a claim of availability of exculpatory
evidence, which was unavailable at the time of his guilty plea and which
would have changed the outcome of the proceeding if it had been
introduced, such claim is cognizable under the PCRA. See 42 Pa.C.S. §
9543 (a)(2)(vi). Likewise, to the extent Appellant presents a claim of
innocence and unlawful inducement of a guilty plea under circumstances that
made it likely that the inducement caused him to plead guilty, such claim is
cognizable under the PCRA. Id. at § 9543(a)(2)(iii). Accordingly, the PCRA
court properly considered Appellant’s petition as a PCRA petition.
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Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super. 2013) (“[A]
collateral petition that raises an issue that the PCRA statute could remedy is
to be considered a PCRA petition[.]”).
Because Appellant’s judgment of sentence became final in 2000, the
PCRA court had no jurisdiction to entertain Appellant’s petition unless one or
more of the three statutory exceptions to the time bar applied. 42 Pa.C.S. §
9545(b)(1); Commonwealth v. Taylor, 933 A.2d 1035, 1038 (Pa. Super.
2007) (holding that the PCRA’s “[s]tatutory time restrictions are mandatory
and jurisdictional in nature, and may not be altered or disregarded to reach
the merits of the claims raised in the petition”). None of the three
exceptions was applicable, including the newly-discovered facts exception.
To satisfy that exception, the petitioner must plead and prove facts that
were unknown to him and could not have been ascertained by the exercise
of due diligence. See 42 Pa.C.S. § 9545(b)(2)(ii). Any petition invoking an
exception to the jurisdictional time-bar must “be filed within 60 days of the
date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Although Appellant’s petition refers to a forensic test allegedly proving
his innocence and a letter allegedly describing the victim’s recanting, the
petition omits the date of Appellant’s discovery of these facts. It is apparent
that Appellant has known about both the forensic report and the letter for
more than sixty days prior to filing the 2016 petition, as Appellant’s 2005,
2006, and 2011 PCRA petitions all include averments regarding the forensic
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report and letter. PCRA Petition, 9/9/2005, at 5, 8, 10; PCRA Petition,
2/21/2006, at 2; PCRA Petition, 9/12/2011, at 2-4. Appellant’s 2005 and
2006 PCRA petitions even attach the forensic report to the petitions. Thus,
Appellant’s 2016 petition fails to overcome the jurisdictional time-bar.
In addition, Appellant is not eligible for PCRA relief because he is no
longer serving his sentence, even if he is still subject to continuing collateral
consequences imposed by the Sex Offender Registration and Notification Act
(SORNA). See 42 Pa.C.S. § 9543(a)(1); Commonwealth v. Turner, 80
A.3d 754, 766 (Pa. 2013) (“[T]he General Assembly, through the PCRA,
excluded from collateral review those individuals who were no longer subject
to a state sentence….”); Commonwealth v. Williams, 977 A.2d 1174,
1175 (Pa. Super. 2009) (“Appellant is not eligible for PCRA relief, despite the
requirement that he register under Megan's Law II, [42 Pa.C.S. §§ 9791–
9799.7,] because he is not serving a sentence of incarceration, probation, or
parole.”)1
Appellant contends that, even though he is no longer serving a
sentence, the newly-discovered forensic report and letter warrant coram
nobis relief because the facts were unknown to Appellant while he was
serving his sentence, precluding him from prevailing on a PCRA petition.
1
As with SORNA, Megan’s Law II required individuals who committed certain
sexual offenses to comply with non-punitive registration, notification, and
counseling requirements. Commonwealth v. Price, 876 A.2d 988, 992
(Pa. Super. 2005); Commonwealth v. Perez, 97 A.3d 747, 758 (Pa.
Super. 2014).
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Appellant’s Brief at 7, 9. As described above, Appellant was aware of the
report and letter during his incarceration. Moreover, Appellant
acknowledges that our Supreme Court has held that when a petitioner’s
claim is cognizable under the PCRA, the PCRA is the exclusive method by
which the petitioner may obtain relief, even if a petitioner’s particular claim
lacked merit. Commonwealth v. Descardes, 136 A.3d 493, 502-03 (Pa.
2016). We are bound by our Supreme Court’s ruling on this issue.
Accordingly, the trial court did not err in denying Appellant’s petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/30/2017
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