J -S42012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
KENNETH E. GARRISON
Appellant No. 243 MDA 2017
Appeal from the PCRA Order December 22, 2016 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0006082-2013
BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED AUGUST 01, 2017
Appellant, Kenneth Garrison, appeals pro se from an order entered on
December 22, 2016, raising three issues for our review. We agree with the
trial court that Appellant is challenging the validity of his conviction, and
therefore the petition was properly treated as a petition under the
Post -Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We further
conclude that the claims raised in Appellant's PCRA petition are untimely and
that Appellant is therefore not entitled to PCRA relief. Accordingly, we
affirm.
As our disposition is based solely on the procedural history of this
case, we do not set forth the factual background. On September 13, 1993, J -S42012-17
Appellant pled guilty and was sentenced to an aggregate term of four to ten
years' imprisonment for, inter alia, aggravated indecent assault.' In 1995,
Megan's Law I took effect, requiring Appellant to register with the
Pennsylvania State Police ("PSP") for a period of ten years. In 2003,
Appellant was released from prison and began his ten-year registration
requirement. On December 20, 2012, while Appellant was still subject to
registration requirements, Pennsylvania's Sexual Offender Registration and
Notification Act ("SORNA"), 42 Pa.C.S.A. §§ 9799.10-9799.41, took effect.
SORNA provides that any individual previously required to register for a
sexually violent offense with the PSP, and who has not fulfilled that period of
registration, is required to register pursuant to SORNA. See 42 Pa.C.S.A.
§ 9799.13(3)(i). Under SORNA, Appellant's aggravated indecent assault
conviction required that he register for the remainder of his life.
On September 3, 2013, Appellant was charged with two counts of
failing to verify address and obtain photographs,2 failure to comply with
registration requirements,3 and failure to provide accurate registration
information.4 On June 9, 2014, Appellant pleaded guilty to all charges,
' 18 Pa.C.S.A § 3125(a)(1).
2 18 Pa.C.S.A. § 4915.1(a)(2). 3 18 Pa.C.S.A. § 4915.1(a)(1). 4 18 Pa.C.S.A. § 4915.1(a)(3).
-2 J -S42012-17
except failure to provide accurate registration information, and was
sentenced to an aggregate term of three to six years' incarceration.5
Appellant filed neither a post -sentence motion nor a direct appeal. On
March 2, 2015, Appellant filed a pro se PCRA petition. Counsel was
appointed and filed a no -merit letter pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super 1988) (en banc). On August 11, 2015, the PCRA court
dismissed the petition. Appellant did not appeal.
On October 26, 2016, Appellant filed a pro se petition for habeas
corpus relief, which the trial court treated as a second PCRA petition. On
November 8, 2016, the trial court issued notice of its intent to dismiss the
petition without an evidentiary hearing. See Pa.R.Crim.P. 907(A). On
December 22, 2016, the trial court dismissed the petition. This timely
appeal followed.6
Appellant presents three issues for our review:
1. Did the [PCRA] court err by treating [] Appellant's [p]etiton for [w]rit of [h]abeas [c]orpus as a PCRA [petition] instead of the [w]rit of [h]abeas [c]orpus as was filed?
5 The charge of failure to provide accurate registration information was nolle prossed as part of the negotiated guilty plea agreement.
6 The trial court did not order Appellant to file a concise statement of errors complained of on appeal ("concise statement"). See Pa.R.A.P. 1925(b). Nonetheless, Appellant filed a concise statement on February 21, 2017.
-3 J -S42012-17
2. Did the [PCRA] court err [by] not enforcing the [g]uilty [p]lea that was accepted by the court in 1993?
3 Did the [PCRA] court err by not sentencing [] Appellant to a sentence under [42 Pa.C.S.A. §] 9718.4[]?
Appellant's Brief at 3.
Appellant first claims that it was improper to treat his habeas corpus
petition as a petition for post -conviction relief. Whether a pleading is
properly construed as a PCRA petition is a question of law; therefore, our
standard of review is de novo and our scope of review is plenary. See
Commonwealth v. Descardes, 136 A.3d 493, 497 (Pa. 2016) (citation
omitted).
"The [PCRA is] the sole means of obtaining collateral relief and
encompasses all other common law and statutory remedies for the same
purpose. . . including habeas corpus and coram nobis." 42 Pa.C.S.A.
§ 9542. A petition for writ of habeas corpus is only appropriate where a
petitioner's claim is not cognizable under the PCRA. See Descardes, 136
A.3d at 499.
Here, Appellant challenges the validity of his conviction and sentence
by arguing that he should not be required to register under SORNA because
registration was not part of his original plea deal. Essentially, Appellant is
arguing that his conviction should be overturned because he never should
have been subject to SORNA registration requirements. A claim challenging
the legality of a sentence is cognizable under the PCRA. See
-4 J -S42012-17
Commonwealth v. Holmes, 933 A.2d 57, 60 (Pa. 2007) (finding legality of
sentence is always subject to review within the PCRA, as long as the claim
satisfies the Act's time limitations). Further, Appellant's petition can be
construed as invoking an ineffective assistance of counsel claim, since his
original plea agreement was not raised as an affirmative defense. See
Commonwealth v. Grant, 813 A.2d 726, 742 (Pa. 2002) (finding that
claims sounding in the alleged ineffective assistance of counsel are
specifically deemed cognizable under the PCRA). Thus, the PCRA court
correctly treated Appellant's filing as a PCRA petition and not a petition for a
writ of habeas corpus.'
Before we address the merits of Appellant's next two issues, we must
first determine whether the instant PCRA petition was timely filed. The
timeliness requirement for PCRA petitions "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) (citation omitted). "The question of whether a petition is timely raises
a question of law. Where the petitioner raises questions of law, our standard
7 This case is distinguishable from Commonwealth v. Demora, 149 A.3d 330 (Pa. Super. 2016).
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J -S42012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
KENNETH E. GARRISON
Appellant No. 243 MDA 2017
Appeal from the PCRA Order December 22, 2016 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0006082-2013
BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED AUGUST 01, 2017
Appellant, Kenneth Garrison, appeals pro se from an order entered on
December 22, 2016, raising three issues for our review. We agree with the
trial court that Appellant is challenging the validity of his conviction, and
therefore the petition was properly treated as a petition under the
Post -Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We further
conclude that the claims raised in Appellant's PCRA petition are untimely and
that Appellant is therefore not entitled to PCRA relief. Accordingly, we
affirm.
As our disposition is based solely on the procedural history of this
case, we do not set forth the factual background. On September 13, 1993, J -S42012-17
Appellant pled guilty and was sentenced to an aggregate term of four to ten
years' imprisonment for, inter alia, aggravated indecent assault.' In 1995,
Megan's Law I took effect, requiring Appellant to register with the
Pennsylvania State Police ("PSP") for a period of ten years. In 2003,
Appellant was released from prison and began his ten-year registration
requirement. On December 20, 2012, while Appellant was still subject to
registration requirements, Pennsylvania's Sexual Offender Registration and
Notification Act ("SORNA"), 42 Pa.C.S.A. §§ 9799.10-9799.41, took effect.
SORNA provides that any individual previously required to register for a
sexually violent offense with the PSP, and who has not fulfilled that period of
registration, is required to register pursuant to SORNA. See 42 Pa.C.S.A.
§ 9799.13(3)(i). Under SORNA, Appellant's aggravated indecent assault
conviction required that he register for the remainder of his life.
On September 3, 2013, Appellant was charged with two counts of
failing to verify address and obtain photographs,2 failure to comply with
registration requirements,3 and failure to provide accurate registration
information.4 On June 9, 2014, Appellant pleaded guilty to all charges,
' 18 Pa.C.S.A § 3125(a)(1).
2 18 Pa.C.S.A. § 4915.1(a)(2). 3 18 Pa.C.S.A. § 4915.1(a)(1). 4 18 Pa.C.S.A. § 4915.1(a)(3).
-2 J -S42012-17
except failure to provide accurate registration information, and was
sentenced to an aggregate term of three to six years' incarceration.5
Appellant filed neither a post -sentence motion nor a direct appeal. On
March 2, 2015, Appellant filed a pro se PCRA petition. Counsel was
appointed and filed a no -merit letter pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super 1988) (en banc). On August 11, 2015, the PCRA court
dismissed the petition. Appellant did not appeal.
On October 26, 2016, Appellant filed a pro se petition for habeas
corpus relief, which the trial court treated as a second PCRA petition. On
November 8, 2016, the trial court issued notice of its intent to dismiss the
petition without an evidentiary hearing. See Pa.R.Crim.P. 907(A). On
December 22, 2016, the trial court dismissed the petition. This timely
appeal followed.6
Appellant presents three issues for our review:
1. Did the [PCRA] court err by treating [] Appellant's [p]etiton for [w]rit of [h]abeas [c]orpus as a PCRA [petition] instead of the [w]rit of [h]abeas [c]orpus as was filed?
5 The charge of failure to provide accurate registration information was nolle prossed as part of the negotiated guilty plea agreement.
6 The trial court did not order Appellant to file a concise statement of errors complained of on appeal ("concise statement"). See Pa.R.A.P. 1925(b). Nonetheless, Appellant filed a concise statement on February 21, 2017.
-3 J -S42012-17
2. Did the [PCRA] court err [by] not enforcing the [g]uilty [p]lea that was accepted by the court in 1993?
3 Did the [PCRA] court err by not sentencing [] Appellant to a sentence under [42 Pa.C.S.A. §] 9718.4[]?
Appellant's Brief at 3.
Appellant first claims that it was improper to treat his habeas corpus
petition as a petition for post -conviction relief. Whether a pleading is
properly construed as a PCRA petition is a question of law; therefore, our
standard of review is de novo and our scope of review is plenary. See
Commonwealth v. Descardes, 136 A.3d 493, 497 (Pa. 2016) (citation
omitted).
"The [PCRA is] the sole means of obtaining collateral relief and
encompasses all other common law and statutory remedies for the same
purpose. . . including habeas corpus and coram nobis." 42 Pa.C.S.A.
§ 9542. A petition for writ of habeas corpus is only appropriate where a
petitioner's claim is not cognizable under the PCRA. See Descardes, 136
A.3d at 499.
Here, Appellant challenges the validity of his conviction and sentence
by arguing that he should not be required to register under SORNA because
registration was not part of his original plea deal. Essentially, Appellant is
arguing that his conviction should be overturned because he never should
have been subject to SORNA registration requirements. A claim challenging
the legality of a sentence is cognizable under the PCRA. See
-4 J -S42012-17
Commonwealth v. Holmes, 933 A.2d 57, 60 (Pa. 2007) (finding legality of
sentence is always subject to review within the PCRA, as long as the claim
satisfies the Act's time limitations). Further, Appellant's petition can be
construed as invoking an ineffective assistance of counsel claim, since his
original plea agreement was not raised as an affirmative defense. See
Commonwealth v. Grant, 813 A.2d 726, 742 (Pa. 2002) (finding that
claims sounding in the alleged ineffective assistance of counsel are
specifically deemed cognizable under the PCRA). Thus, the PCRA court
correctly treated Appellant's filing as a PCRA petition and not a petition for a
writ of habeas corpus.'
Before we address the merits of Appellant's next two issues, we must
first determine whether the instant PCRA petition was timely filed. The
timeliness requirement for PCRA petitions "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) (citation omitted). "The question of whether a petition is timely raises
a question of law. Where the petitioner raises questions of law, our standard
7 This case is distinguishable from Commonwealth v. Demora, 149 A.3d 330 (Pa. Super. 2016). In Demora, the petitioner was not convicted of violating SORNA's registration requirements. Rather, the petitioner took affirmative action through a petition for habeas corpus relief to enforce his plea agreement. See also Dougherty v. Pennsylvania State Police, 138 A.3d 152, 155 (Pa. Cmmw. 2016) (en banc) (holding petitioner's request to order specific performance of his plea agreement was properly brought as a petition for review in the nature of a writ of mandamus).
-5 J -S42012-17
of review is de novo and our scope of review is plenary." Commonwealth
v. Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations omitted).
The PCRA mandates that all petitions for post -conviction relief,
including second and subsequent petitions, be filed within one year of the
date upon which the judgment becomes final, unless one of the three
statutory exceptions applies. See 42 Pa.C.S.A. § 9545(b)(i)-(iii).
Pennsylvania law makes clear that when "a PCRA petition is untimely,
neither [the Superior] court nor the trial court has jurisdiction over the
petition." Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014)
(citation omitted). For purposes of the PCRA, a judgment of sentence
becomes final at the conclusion of direct review, or at the expiration of the
time for seeking such review. 42 Pa.C.S.A. § 9545(b)(3).
Appellant did not file a direct appeal from his judgment of sentence
imposed on June 9, 2014. Thus, Appellant's judgment of sentence became
final on or about July 9, 2014. Appellant had to file his petition within one
year from that date or demonstrate that an exception applies. Appellant
filed his petition on October 26, 2016, over two years after his judgment of
sentence became final. Appellant has neither pled nor proven any of the
three statutory exceptions to the timeliness provisions of the PCRA. Thus,
Appellant's PCRA petition was patently untimely and no exceptions have
been established. Commonwealth v. Walter, 966 A.2d 560, 566 (Pa.
-6 J -S42012-17
2009). Therefore, the PCRA court properly held that it lacked jurisdiction
over his untimely petition.
Application to supplement the certified record denied. Order affirmed.
Judgment Entered.
J seph D. Seletyn, Prothonotary
Date: 8/1/2017
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