Com. v. Kelly, P.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
PATRICK J. KELLY :
:
Appellant : No. 2162 EDA 2019
Appeal from the Order Entered June 27, 2019
In the Court of Common Pleas of Carbon County Criminal Division at
No(s): CP-13-CR-0000551-2013
BEFORE: SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 29, 2020
Appellant Patrick J. Kelly appeals the order of the Court of Common
Pleas of Carbon County denying his “Motion to Bar Applicability of Sex
Offender Registration and/or Petition for Writ of Habeas Corpus,” which the
lower court properly characterized as an untimely petition under the Post-
Conviction Relief Act (PCRA).1 We affirm.
On April 29, 2016, Appellant pled guilty to Indecent Assault in
connection with criminal conduct that occurred between January 1, 2011 and
December 31, 2012. Following an evaluation, the Sexual Offender
Assessment Board (SOAB) determined that Appellant was not a sexually
violent predator. On July 5, 2016, the trial court imposed a sentence of
incarceration. As part of the plea process, Appellant acknowledged verbally
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* Former Justice specially assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
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on the record and in a written colloquy that he was required to register
pursuant to Pennsylvania Sex Offender Registration and Notification Act
(SORNA)2 for a fifteen-year period. Appellant did not file a direct appeal.
On September 15, 2017, Appellant filed the instant “Motion to Bar
Applicability of Sex Offender Registration and/or Petition for Writ of Habeas
Corpus.” Appellant cited to Commonwealth v. Muniz, 640 Pa. 699, 164 A.3d
1189 (2017), in which our Supreme Court held that the retroactive application
of SORNA’s registration and reporting requirements violated the ex post facto
clauses of the United States and Pennsylvania Constitutions.3 Appellant
asserted that he cannot be required to comply with SORNA’s registration
requirements as his offenses all occurred prior to SORNA’s effective date. On
November 27, 2018, the lower court held a hearing on Appellant’s petition.
On June 27, 2019, the lower court issued a Memorandum and Order,
construing Appellant’s filing as an untimely PCRA petition. The lower court
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242 Pa.C.S.A. §§ 9799.10-9799.42 (“SORNA I”).
3 In response to Muniz, the General Assembly passed SORNA II, which
became effective on June 12, 2018. Act of Feb. 21, 2018, P.L. 27, No. 10 (Act
10); Act of June 12, 2018, P.L. 140, No. 29 (Act 29). SORNA II is
divided into two distinct subchapters – Subchapter H, which
applies to “individuals who committed a sexually violent offense
on or after December 20, 2012, for which the individual was
convicted[,]” 42 Pa.C.S. § 9799.11(c), and Subchapter I, which
applies to individuals who committed a sexually violent offense
“on or after April 22, 1996, but before December 20, 2012,” and
whose period of registration has not yet expired or whose
registration requirements under a former sexual offender
registration law have not expired. 42 Pa.C.S. § 9799.52.
Commonwealth v. Moore, 222 A.3d 16, 20 (Pa.Super. 2019).
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reasoned that Appellant could not rely on the decision in Muniz to satisfy the
PCRA timeliness exception under 42 Pa.C.S.A § 9545(b)(1)(iii) based on a
newly-recognized constitutional right, as he failed to demonstrate that the
Pennsylvania Supreme Court held that Muniz applies retroactively on
collateral review. This timely appeal followed.
As a preliminary matter, we must determine whether the lower court
correctly characterized Appellant’s filing as a PCRA petition. This Court has
consistently held that “so long as a pleading falls within the ambit of the PCRA,
the court should treat any pleading filed after the judgment of sentence is final
as a PCRA petition.” Commonwealth v. Torres, 223 A.3d 715, (Pa.Super.
filed Nov. 25, 2019) (citations omitted). Generally, the PCRA “shall be the
sole means of obtaining collateral relief and encompasses all other common
law and statutory remedies ... including habeas corpus and coram nobis.”
Commonwealth v. Descardes, 635 Pa. 395, 136 A.3d 493, 497–98 (2016)
(citing 42 Pa.C.S.A. § 9542). The PCRA is “the exclusive vehicle for obtaining
post-conviction collateral relief… regardless of the manner in which the
petition is titled.” Commonwealth v. Kutnyak, 781 A.2d 1259, 1261
(Pa.Super. 2001). See Commonwealth v. Taylor, 65 A.3d 462, 466
(Pa.Super. 2013) (finding “a defendant cannot escape the PCRA time-bar by
titling his petition or motion as a writ of habeas corpus”).
In Commonwealth v. Jackson, 30 A.3d 516 (Pa.Super. 2011), this
Court held that the trial court correctly characterized the defendant’s motion
to correct illegal sentence as a PCRA petition, broadly stating that “any petition
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filed after the judgment of sentence becomes final will be treated as a PCRA
petition.” Id. at 521-22. Similarly, the trial court correctly determined that
Appellant’s petition, filed after his judgment of sentence become final, should
have been characterized as a PCRA petition.
As such, the PCRA court did not have jurisdiction to review Appellant’s
PCRA petition unless it was timely filed. It is well-established that “the PCRA's
timeliness requirements are jurisdictional in nature and must be strictly
construed; courts may not address the merits of the issues raised in a petition
if it is not timely filed.” Commonwealth v. Walters, 135 A.3d 589, 591
(Pa.Super. 2016) (citations omitted). Generally, a PCRA petition “including a
second or subsequent petition, shall be filed within one year of the date the
judgment of sentence becomes final.” 42 Pa.C.S.A. § 9545(b)(1). A judgment
of sentence becomes final at the conclusion of direct review or the expiration
of the time for seeking the review. 42 Pa.C.S.A. § 9545(b)(3).
However, Pennsylvania courts may consider an untimely PCRA petition
if the petitioner explicitly pleads and proves one of the three exceptions
enumerated in Section 9545(b)(1), which include: (1) the petitioner's inability
to raise a claim as a result of governmental interference; (2) the discovery of
previously unknown facts or evidence that would have supported a claim; or
(3) a newly-recognized constitutional right that has been held to apply
retroactively by the Supreme Court of the United States or the Supreme Court
of Pennsylvania. 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).
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In this case, Appellant’s judgment of sentence became final on August
4, 2016, when the time period for seeking a direct appeal expired. See
Pa.R.A.P. 903(a) (stating that a “notice of appeal … shall be filed within 30
days after the entry of the order from which the appeal is taken). As a result,
Appellant had until August 4, 2017 to file a timely PCRA petition. Thus,
Appellant’s petition filed on September 15, 2017, is facially untimely.
Appellant does not argue that any of the PCRA timeliness exceptions
apply. Moreover, the Muniz decision does not allow a petitioner to escape
the PCRA time-bar as it does not satisfy the newly-recognized constitutional
right exception as set forth in Section 9545(b)(1)(iii). This Court explained
this point in Commonwealth v. Murphy, 180 A.3d 402 (Pa.Super. 2018):
Appellant's reliance on Muniz cannot satisfy the [timeliness]
exception of [S]ection 9545(b)(1)(iii). In Commonwealth v.
Abdul-Salaam, 571 Pa. 219, 812 A.2d 497 (2002), our Supreme
Court held that,
[s]ubsection (iii) of Section 9545 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 this [C]ourt 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.
Id. at 501.
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Here, we 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
[S]ection 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.
Murphy, 180 A.3d at 405-406.
As Appellant cannot rely upon Muniz to excuse the untimeliness of his
PCRA petition and Appellant does not plead or prove any of the PCRA
timeliness exceptions, the lower court correctly dismissed his petition.
Accordingly, we affirm the lower court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/20
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