Com. v. Ferrara, D.

Opinion

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA

Appellee :

:

v. :

:

DAVID E. FERRARA, :

:

Appellant : No. 884 WDA 2018

Appeal from the Order May 10, 2018 in the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000278-2002 CP-33-CR-0000279-2002 CP-33-CR-0000486-2005 CP-33-CR-0000493-1999

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA

Appellee :

:

v. :

:

DAVID E. FERRARA, :

:

Appellant : No. 923 WDA 2018

Appeal from the Order Entered May 10, 2018 in the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000278-2002 CP-33-CR-0000279-2002 CP-33-CR-0000486-2005 CP-33-CR-0000493-1999 CP-33-CR-0000570-2000

BEFORE: BOWES, J., SHOGAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 26, 2019

David E. Ferrara (Appellant) appeals pro se from the May 10, 2018

order, which denied his nunc pro tunc petition to modify sentence. Upon

review, we conclude that this petition should have been treated as an

untimely-filed petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546, and affirm the court’s order on that

basis.1, 2 We affirm the order appealed from at 884 WDA 2018,3 and dismiss

the appeal filed at 923 WDA 2018.4

* Retired Senior Judge assigned to the Superior Court.

1 Commonwealth v. Kennedy, 151 A.3d 1117, 1127 n.14 (Pa. Super. 2016) (“It is well-settled that this Court may affirm a trial court’s ruling on any basis.”).

2On June 1, 2018, Appellant filed a single notice of appeal from the May 10, 2018 order, docketed with this Court at 884 WDA 2018, from four lower court docket numbers: CP-33-CR-0000278-2002, CP-33-CR-0000279-2002, CP-33-CR-0000486-2005, and CP-33-CR-0000493-1999. Thereafter, Appellant filed another notice of appeal from the same May 10, 2018 order, docketed with this Court at 923 WDA 2018, from five lower court docket numbers: CP-33-CR-0000278-2002, CP-33-CR-0000279-2002, CP-33-CR- 0000486-2005, CP-33-CR-0000493-1999, and CP-33-CR-0000570-2000. These appeals were consolidated sua sponte by order of this Court on July 17, 2018.

3We must address the fact that Appellant filed a single notice of appeal at 884 WDA 2018, raising issues which relate to four lower court docket numbers. In Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our Supreme Court considered whether to quash an appeal where one notice of appeal was filed for orders entered at more than one docket number. The

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Official Note to Pennsylvania Rule of Appellate Procedure 341(a) provides that “[w]here … one or more orders resolves [sic] issues arising on more than one docket … separate notices of appeal must be filed.” In Walker, our Supreme Court found that the “Official Note to Rule 341 provides a bright-line mandatory instruction to practitioners to file separate notices of appeal.” Id. at 976-77. Thus, it held that for appeals filed after June 1, 2018, the date Walker was filed, “when a single order resolves issues arising on more than one lower court docket, separate notices of appeal must be filed.” Id. at 977. The Court emphasized that the “failure to do so will result in quashal of the appeal.” Id.

Here, Appellant filed a single notice of appeal from an order denying Appellant’s nunc pro tunc petition to modify sentence filed at multiple docket numbers. The notice of appeal was filed on the same day as Walker, June 1, 2018. Appellant’s certification indicates he delivered it to prison authorities for mailing on May 27, 2018. See Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (holding “the prisoner mailbox rule provides that a pro se prisoner’s document is deemed filed on the date he delivers it to prison authorities for mailing”). In light of Walker’s prospective application, we decline to quash the appeal at docket 884 WDA 2018.

4 With respect to the appeal docketed at 923 WDA 2018, Appellant filed erroneously his notice of appeal with the Superior Court rather than the lower court. The notice of appeal was received in this Court on June 14, 2018. It then appears to have been transferred to the lower court, where it was filed on June 18, 2018. See 42 Pa.C.S. § 5103 (relating to transfer of erroneously filed matters). The order from which Appellant appeals was entered on May 10, 2018, and he had 30 days, or until June 11, 2018, to file his appeal. Thus, even with the benefit of the June 14, 2018 filing date, see 42 Pa.C.S. § 5103, the notice of appeal docketed at 923 WDA 2018 was filed untimely. See Pa.R.A.P. 903(a) (an appeal “shall be filed within 30 days after the entry of the order from which the appeal is taken”); 1 Pa.C.S. § 1908 (“Whenever the last day of any such period shall fall on Saturday or Sunday…, such day shall be omitted from the computation.”); Pa.R.A.P. 902 (“An appeal permitted by law as of right from a lower court to an appellate court shall be taken by filing a notice of appeal with the clerk of the lower court within the time allowed by Rule 903 (time for appeal)”); Cubano v.

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We provide briefly the following background.

This case arises from incidents that occurred over ten years ago. While Appellant initially pled nolo contendere in 2002 to three counts of incest and guilty to one count of indecent assault, he petitioned to withdraw his plea, but the court denied his petition. This Court reversed his judgment of sentence and in 2004, after the reinstatement of the charges against him, Appellant again entered the same plea. He subsequently pursued a direct appeal with this Court and we affirmed his judgment of sentence.

Commonwealth v. Ferrara, 198 A.3d 466 (Pa. Super. 2018) (unpublished

memorandum at 1). Appellant has filed numerous unsuccessful PCRA

petitions and various other motions.

On May 7, 2018, the lower court docketed Appellant’s nunc pro tunc

petition to modify sentence, challenging his designation as a sexually violent

predator (SVP) and his lifetime sex offender registration requirement. The

lower court denied his petition on May 10, 2018. This appeal followed.

Appellant and the lower court complied with Pa.R.A.P. 1925.

(Footnote Continued) _______________________

Sheehan, 146 A.3d 791 (Pa. Super. 2016) (holding “this Court is divested of jurisdiction and we must quash” an untimely filed appeal).

However, Appellant’s certification indicates he delivered it to prison authorities for mailing on June 9, 2018. Thus, Appellant’s second notice of appeal is arguably timely. See Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (holding “the prisoner mailbox rule provides that a pro se prisoner’s document is deemed filed on the date he delivers it to prison authorities for mailing”). In any event, we dismiss the appeal docketed at 923 WDA 2018 as duplicative.

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On appeal, Appellant raises three issues for our review: (1) whether

the lower court erred in holding Commonwealth v. Butler, 173 A.3d 1212

(Pa. Super. 2017),5 appeal granted, 190 A.3d 581 (Pa. 2018), does not

apply retroactively; (2) whether Appellant’s lifetime sex offender registration

requirement is unconstitutional because it is a punitive measure imposed in

excess of the maximum allowable term of incarceration for his convictions,

citing, inter alia, Muniz and Apprendi v. New Jersey, 530 U.S. 466, 490

(2000) (holding “[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury and proved beyond a reasonable doubt”); and

(3) whether the relief Appellant seeks is not cognizable under the PCRA.

Appellant’s Brief at 3.

We first address Appellant’s claim that his nunc pro tunc petition to

modify sentence is not a PCRA petition. Specifically, he contends that it is

not a PCRA petition because it “was not contesting his conviction; his

5 In Butler, this Court concluded that, in light of our Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (holding that certain registration requirement provisions of Pennsylvania’s Sex Offender Registration and Notification Act (SORNA) are punitive and retroactive application of those provisions violates the ex post facto clause of the Pennsylvania constitution), the subsection relating to SVP designation under SORNA “violates the federal and state constitutions because it increases the criminal penalty to which a defendant is exposed without the chosen fact-finder making the necessary factual findings beyond a reasonable doubt.” Butler, 173 A.3d at 1218.

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sentence; the ineffectiveness of counsel; or that his right to appeal his

judgment of sentence was obstructed by government officials.” Id. at 19.

Rather, Appellant claims his request that the court “remove an SVP

determination and its lifetime reporting and registration requirements” is not

cognizable under the PCRA. Id. He argues that because his petition is not a

PCRA petition, it is not subject to the PCRA’s timeliness requirements.6 Id.

In this case, the lower court considered Appellant’s petition pursuant

to 42 Pa.C.S. § 5505 (relating to modification of orders) and determined it

lacked jurisdiction because the petition was filed more than 30 days after

Appellant’s sentencing order. Rule 1925(a) Opinion, 6/28/2018.

Alternatively, it found the petition was without merit because Butler does

not apply retroactively. Id.

We consider the nature of Appellant’s petition mindful of the following.

It is well settled that the PCRA has subsumed other postconviction relief. Issues that are cognizable under the PCRA must be raised in a timely PCRA petition. Thus, a petitioner may not mislabel his petition in an attempt to circumvent the PCRA’s timeliness requirements.

… This Court has determined previously that a challenge to retroactive application of Megan’s Law does not implicate “the statutory and rule-based requirements governing a PCRA petition.” Commonwealth v. Bundy, 96 A.3d 390, 394 (Pa. Super. 2014); see also Commonwealth v. Price, 876 A.2d 988, 992 (Pa. Super. 2005) (stating that challenge to non-

6The lower court did not address this issue in its opinion. See Rule 1925(a) Opinion, 6/28/2018.

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punitive, regulatory “registration, notification, and counseling requirements for offenders under Megan’s Law” is not cognizable under the PCRA). Thus, this Court has in the past criticized the analysis of lower courts where they have denied petitions for relief from Megan's Law’s registration requirements, on the basis that they were untimely PCRA petitions. See, e.g., Bundy, 96 A.3d at 394 (rejecting the lower court’s conclusion that the appellant’s petition was untimely under the PCRA and addressing the merits of the appellant’s claim); Commonwealth v. Partee, 86 A.3d 245, 247 (Pa. Super. 2014) (rejecting the lower court’s PCRA analysis).

Recently, however, our Supreme Court determined that SORNA’s registration provisions are punitive and that retroactive application of SORNA’s registration provisions violates the federal and state ex post facto clauses. Muniz, 164 A.3d at 1193. The punitive nature of these provisions implicates the legality of a sex offender’s sentence. See [] Butler, 173 A.3d [at] 1215 [] (concluding that a challenge to an appellant’s increased registration requirements under SORNA implicated the legality of the sentence imposed). Thus, claims challenging application of SORNA’s registration provisions – unlike prior versions of Megan’s Law – are properly considered under the PCRA. [Commonwealth v.] Murphy, [180 A.3d 402, 405-06 (Pa. Super. 2018)] (discussing the impact of Muniz on the timeliness of a petitioner’s PCRA petition); Commonwealth v. Rivera-Figueroa, 174 A.3d 674 (Pa. Super. 2017) (remanding for further proceedings to address the petitioner’s timely PCRA claim in light of Muniz).

Commonwealth v. Greco, __ A.3d __, 2019 WL 510129 at *2 (Pa. Super.

Feb. 8, 2019). Thus, Appellant’s challenges to his SVP designation and his

lifetime registration requirement are cognizable under the PCRA. Id.

Accordingly we must determine whether this PCRA petition was filed timely

as neither this Court nor the PCRA court has jurisdiction to address the

merits of an untimely-filed petition. Commonwealth v. Leggett, 16 A.3d

1144, 1145 (Pa. Super. 2011).

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Any PCRA petition, including second and subsequent petitions, must

either (1) be filed within one year of the judgment of sentence becoming

final, or (2) plead and prove a timeliness exception. 42 Pa.C.S. § 9545(b).

Furthermore, if invoking a timeliness exception, the petition “shall be filed

within one year of the date the claim could have been presented.” 42

Pa.C.S. § 9545(b)(2).

“For purposes of [the PCRA], 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). Here, Appellant’s judgment of sentence became final after

the expiration of time for seeking review of our Supreme Court’s denial of

his petition for allowance of appeal on September 21, 2005. See

Commonwealth v. Ferrara, 885 A.2d 41 (Pa. 2005). See also U.S. Sup.

Ct. R. 13 (requiring petition for writ of certiorari to be filed within 90 days

after entry of the order denying discretionary review by state court of last

resort). Appellant then had one year to file timely a PCRA petition. Thus,

Appellant’s May 7, 2018 petition is facially untimely, and he was required to

plead and prove an exception to the timeliness requirements.

Appellant did not plead and prove an exception to the timeliness

requirements of the PCRA because he maintains his nunc pro tunc petition to

modify sentence is not a PCRA petition. However, to the extent that

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Appellant claims he satisfies the new constitutional right exception,7 see

Appellant’s Brief at 7-8 (arguing Butler applies retroactively), 9-18 (arguing

Appellant’s lifetime sex offender registration requirement is unconstitutional

because it is a punitive measure imposed in excess of the maximum

allowable term of incarceration for his convictions), such claim is without

merit.

With respect to his SVP claim, Appellant must demonstrate that the

Pennsylvania Supreme Court has held that Butler applies retroactively to

cases pending on collateral review in order to satisfy subsection

9545(b)(1)(iii). At this time, because no such holding has been issued by

our Supreme Court, Appellant cannot rely on Butler to meet this timeliness

exception. Regarding his second claim that his lifetime registration

requirement is unconstitutional, it is not a constitutional right that has been

recognized by the U.S. Supreme Court or our Supreme Court. See 42

Pa.C.S. § 9545(b)(1)(iii); see also Commonwealth v. Murphy, 180 A.3d

402, 406 n.1 (Pa. Super. 2018) (holding the substantive rule recognized in

Muniz does not establish a timeliness exception to the PCRA);

7 42 Pa.C.S. § 9545(b)(1)(iii) (“Any petition under this subchapter, including a second or subsequent petition, shall be filed within one year of the date the judgment becomes final, unless the petition alleges and the petitioner proves 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 period provided in this section and has been held by that court to apply retroactively.”).

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Commonwealth v. Strafford, 194 A.3d 168 (Pa. Super. 2018) (holding

SORNA’s registration requirements are not governed by the statutory

maximum sentences set forth in Chapter 11 of the Crimes Code, and that a

lifetime registration requirement authorized by SORNA does not constitute

an illegal sentence); Commonwealth v. Martin, __ A.3d __, 2019 WL

1070730 at * 4 (Pa. Super. Mar. 7, 2019) (holding Martin’s 15-year

registration requirement authorized by SORNA is not an illegal sentence and

his constitutional challenge to same lacks merit).

Based on the foregoing, we conclude that Appellant’s petition was an

untimely-filed PCRA petition, and Appellant has not pleaded nor proven an

exception to the timeliness requirements. Therefore, no relief is due.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/26/2019