J-S44012-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JUAN JOSE GONZALES : : Appellant : No. 96 WDA 2019
Appeal from the PCRA Order Entered December 21, 2018 In the Court of Common Pleas of Venango County Criminal Division at No(s): CP-61-CR-0000289-2011
BEFORE: SHOGAN, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 10, 2019
Juan Jose Gonzales (“Appellant”) appeals from the order denying his
petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.
§§ 9541–9546. In addition, counsel for Appellant has filed a motion to
withdraw and 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). We grant counsel’s application to withdraw and
affirm the order of the PCRA court.
The facts underlying this case are not in dispute. See Commonwealth
v. Gonzales, 120 A.3d 378, 1292 WDA 2014 (Pa. Super. filed February 11,
2015) (unpublished memorandum) (setting forth facts on direct appeal).
Following a four-day trial in October 2011, a jury convicted Appellant of two
counts of Unlawful Contact with a Minor–Open Lewdness, Endangering the J-S44012-19
Welfare of Children, two counts of Corruption of Minors by Any Act, and two
counts of Indecent Exposure.1 Because the jury was deadlocked on the
remaining charges, the trial court declared a mistrial. N.T., 10/20/11, at 16.
The remaining counts were subsequently nolle prossed. Order, 8/28/12.
Following a hearing on April 23, 2013, the trial court determined that
Appellant was a sexually violent predator (“SVP”). Opinion, 4/24/13, at
unnumbered 6–7. The next day at sentencing, the trial court advised
Appellant that he was considered a SVP, subject to lifetime registration under
the Sexual Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.
§§ 9799.10–9799.42. N.T., 4/24/13, at 16–17. The trial court then sentenced
Appellant to imprisonment for an aggregate term of nine and one-half to
twenty-four years. Id. at 34–39.
Appellant filed a motion for reconsideration, which the trial court denied.
Motion for Reconsideration, 5/6/13; Order 5/7/13. Following reinstatement
of Appellant’s direct appeal rights nunc pro tunc, this Court affirmed the
judgment of sentence and permitted counsel to withdraw. Gonzales, 1292
WDA 2014 (unpublished memorandum at *4). Appellant did not file an
application for permission to appeal in the Pennsylvania Supreme Court.
Relying on the Pennsylvania Supreme Court’s decision in
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), Appellant filed a
____________________________________________
1 18 Pa.C.S. §§ 6318(a)(2), 4303(a), 6301(a), and 3127(a), respectively.
-2- J-S44012-19
petition titled, “Pro Se Petition to Correct And/Or Modify Unconstitutional
Sentence To Com. v. Muniz, J-121B-2016 (19 July 2017),” on September 5,
2017. Construing Appellant’s filing as a PCRA petition, the PCRA court
appointed counsel. Order, 9/25/17. Counsel filed an amended PCRA petition.
Petition, 4/6/18. Following a hearing on July 16, 2018, the trial court
dismissed Appellant’s petition. Opinion and Order, 12/21/18, at 1.
This appeal followed. Appellant and the trial court complied with
Pa.R.A.P. 1925. Counsel filed an application for leave to withdraw in this Court
on June 17, 2019, along with a “no-merit” letter brief. Appellant has not filed
a reply, and the Commonwealth has not filed a brief.
Prior to addressing the merits of Appellant’s appeal, we must first decide
whether counsel has fulfilled the procedural requirements for withdrawing her
representation. Commonwealth v. Daniels, 947 A.2d 795, 797 (Pa. Super.
2008). This Court has set forth the conditions that must be satisfied before
counsel will be permitted to withdraw in a collateral appeal:
Counsel petitioning to withdraw from PCRA representation must proceed ... under [Turner, supra and Finley, supra and] ... must review the case zealously. Turner/Finley counsel must then submit a “no-merit” letter to the trial court, or brief on appeal to this Court, detailing the nature and extent of counsel’s diligent review of the case, listing the issues which petitioner wants to have reviewed, explaining why and how those issues lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no merit” letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.
-3- J-S44012-19
* * *
[W]here counsel submits a petition and no-merit letter that ... satisfy the technical demands of Turner/Finley, the court— trial court or this Court—must then conduct its own review of the merits of the case. If the court agrees with counsel that the claims are without merit, the court will permit counsel to withdraw and deny relief.
Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation
omitted) (brackets in original).
In the application filed with this Court and the documents appended
thereto, counsel explained that she was appointed to represent Appellant as
PCRA counsel and that she reviewed the case, evaluated the issues, conducted
an independent review of the record, and concluded there were no issues of
merit. Application to Withdraw, 6/17/19; No Merit Letter Brief, 6/17/19, at
unnumbered 1–2. Counsel also listed two issues relevant to this appeal in her
no-merit letter brief and explained why the appeal is without merit. Id. at
unnumbered 2–6. In addition, counsel averred that she served upon Appellant
a copy of the application to withdraw, the brief, and a letter addressed to
Appellant accompanying those documents, informing Appellant of his right to
retain new counsel, proceed pro se, or raise any additional points that he
deems worthy of the Court’s attention. Application to Withdraw, 6/17/19, at
Certificate of Service; Letter, 6/14/19. Thus, we will allow counsel to withdraw
if, after our review, we conclude that the claims relevant to this appeal lack
merit.
Counsel presents two issues on Appellant’s behalf:
-4- J-S44012-19
1. The PCRA [c]ourt erred in determining that [Appellant’s] PCRA was untimely[.]
2. The conditions of SORNA are punitive in nature and therefore retroactive application to offenders convicted prior to its enactment violates the Ex Post Fact clauses of the U.S. and Pennsylvania Constitutions. U.S. CONST., art. 1 § 10, PA. CONST. art 1, § 17. Consequently the application [of] SORNA to [Appellant], who was convicted prior to its enactment, is unconstitutional.
No Merit Letter Brief at unnumbered 2. The gist of these issues is that
Appellant cannot constitutionally be subject to registration under SORNA
pursuant to Muniz.
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA court’s
ruling is free of legal error. Commonwealth v. Staton, 184 A.3d 949 (Pa.
2018). We consider the record in the light most favorable to the prevailing
party in the PCRA court. Commonwealth v. Mason, 130 A.3d 601 (Pa.
2015). We grant great deference to the PCRA court’s findings that are
supported in the record and will not disturb them unless they have no support
in the certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa.
Super. 2014).
A PCRA petition must be filed within one year of the date that the
judgment of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). 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
-5- J-S44012-19
review.” 42 Pa.C.S. § 9545(b)(3). This time requirement is mandatory and
jurisdictional in nature, and the court may not ignore it in order to reach the
merits of the petition. Commonwealth v. Taylor, 67 A.3d 1245, 1248 (Pa.
2013). The jurisdictional time bar can be overcome only by satisfaction of one
of the three statutory exceptions codified at 42 Pa.C.S. § 9545(b)(1)(i)–(iii).2
Commonwealth v. Spotz, 171 A.3d 675, 678 (Pa. 2017). Further, “[a]ny
petition invoking an exception ... shall be filed within 60 days of the date the
claim could have been presented.” 42 Pa.C.S. § 9545(b)(2). 3 The PCRA
2 The exceptions to the timeliness requirement are:
(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. § 9545(b)(1)(i–iii).
3 We note that Section 9545(b)(2) was amended on October 24, 2018, effective sixty days later on December 24, 2018, and extended the time for filing from sixty days of the date the claim could have been presented to one year. The amendment applies to claims arising on December 24, 2017, or thereafter. Act 2018, Oct. 24, P.L. 894, No. 146, § 3.
-6- J-S44012-19
petitioner bears the burden of proving the applicability of one of the
exceptions. Commonwealth v. Edmiston, 65 A.3d 339, 346 (Pa. 2013).
We have reviewed the briefs of the parties, the certified record before
us on appeal, and the PCRA court opinions filed on December 21, 2018,
denying collateral relief, and on March 1, 2019, pursuant to Pa.R.A.P. 1925(a).
We conclude that the PCRA court’s opinions adequately and accurately
addressed and disposed of Appellant’s issues. Specifically, the PCRA court
properly concluded that Appellant’s PCRA petition was untimely and,
therefore, it lacked jurisdiction to entertain Appellant’s petition in light of this
Court’s ruling in Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super.
2018). See PCRA Court Pa.R.A.P. 1925(a) Opinion, 3/1/19, at 1
(incorporating Opinion and Order, 12/21/18). Consequently, we discern no
error in the PCRA court’s order dismissing Appellant’s petition. We affirm on
the basis of the PCRA court’s opinions and adopt its analysis as our own.4
Having determined that Appellant’s PCRA petition was properly denied, we
grant counsel’s application to withdraw representation.
Application to withdraw as counsel granted. Order affirmed.
4 The parties are directed to attach a copy of those opinions in the event of further proceedings in this matter.
-7- J-S44012-19
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/10/2019
-8- Circulated 08/14/2019 12:31 PM
IN THE COURT OF COMMON PLEAS OF VENANGO COUNTY, PENNSYLVANIA CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA,:
v. CR. No. 289-2011
JUAN JOSE GONZALES, . Defendant/Petitioner.
· OPINION OF COURT
AND NOW, December ;)J_, 2018, the Court has for consideration Defendant/Petitioner Juan Jose Gonzales' (hereinafter "Defendant") "Amended Petition for Post-Conviction
Relief/Habeas Corpus" (hereinafter "PCRA Petition" or "Petition"), which was filed on April 6,
2018 in the above-captioned case. The Court conducted a hearing on the Petition on July 16, 2018,
at which time Defendant appeared and was represented by Pamela Logsdon Sibley, Esquire. The
Commonwealth was represented at the hearing by Venango County Assistant District Attorney
Brenda Servidio, Esquire. After review of the record and the applicable legal authorities, the Court
will dismiss the instant PCRA Petition for the reasons that follow.
Factual Background/Procedural History
This case arises from a 2011 report Sergeant Steven E. Hamilton of the Oil City Police
Department received from Venango County Children and Youth Services. This report indicated
that, on multiple occasions, Defendant exposed his genitals to his former girlfriend's three minor
daughters, masturbated in front of them, and performed sexual acts on one of them. As a result of
receiving this report, the Oil City Police Department arrested Defendant and he was subsequently
charged with the following crimes: one count of Rape of a Child, in violation of 18 Pa.C.S.A. §
312l(c), a first-degree felony; one count oflnvoluntary Deviate Sexual Intercourse with a Child,
in violation of 18 Pa.C.S.A. § 3 l 23(b), a first-degree felony; one count of Unlawful Contact with
1 a Minor - Sexual Offenses, in violation of 18 Pa.C.S.A. § 6318(a)(l ), a first-degree felony; two
counts of Unlawful Contact with a Minor - Open Lewdness, in violation of 18 Pa.C.S.A. §
6318(a)(2), third-degree felonies; one count of Indecent Assault, in violation of 18 Pa.C.S.A. §
3126(a)(7), a first-degree misdemeanor; one count of Endangering the Welfare of Children, in
violation of 18 Pa.C.S.A. § 4303(a), a third-degree felony; three counts of Corruption of Minors
by any Act, in violation of 18 Pa.C.S.A. § 630l(a), first-degree misdemeanors; and three counts
ofindecent Exposure, in violation of 18 Pa.C.S.A. § 3127(a), first-degree misdemeanors.
This case proceeded to a four-day jury trial in October 2011, at the conclusion of which
the jury found Defendant guilty of two counts of Unlawful Contact with a Minor-Open Lewdness,
one count of Endangering the Welfare of Children, two counts of Corruption of Minors by any
Act, and two counts of Indecent Exposure. The jury was deadlocked on the remaining counts with
which Defendant was charged. As a result, the Court declared a mistrial. By Order of Court dated
August 28, 2012, the remaining counts were nolle prossed.
On April 24, 2013, the Court, after conducting a sentencing hearing, sentenced Defendant
to an aggregate term of imprisonment of 9 1h to 24 years for his convictions in this case. In addition
to imposing carceral sanctions on Defendant, we also informed the Defendant that he is now
considered a sexual offender due to his two Unlawful Contact with a Minor - Open Lewdness
convictions and his two Corruption of Minors by any Act convictions. We further informed him,
that the Court, after hearing on the matter, has determined that he is a sexually violent predator.
Accordingly, we stated on the record that, because of this finding, Defendant is deemed a lifetime
registrant under SORNA and, as such, must comply with various registration and reporting
requirements set forth in SORNA. At the hearing, Defendant, his counsel, and the Court signed a
document titled "Notification of Registration Requirements 42 Pa.C.S.A. [§] 9791 et seq," which
2 set forth Defendant's registration and reporting requirements under SORNA and served as an
acknowledgement that Defendant understood said requirements.
Following imposition of sentence, Defendant filed a .Motion for Reconsideration of
Sentence on May 6, 2013, which the Court denied via Order of Court the next day. Defendant then
untimely filed Notice of Appeal on June 7, 2013. The Superior Court of Pennsylvania subsequently
quashed Defendant's appeal for failure to file his Notice of Appeal within 30 days of the date of
entry of our Order denying his Motion for Reconsideration of Sentence.
On February 25, 2014, Defendant filed a pro se Petition for Post-Conviction Relief
pursuant to Post Conviction Relief Act (hereinafter "PCRA"), 42 Pa.C. S.A. §§ 9541-9546, seeking
reinstatement of his direct appeal rights. Seeing as this was Defendant's first PCRA Petition, we
appointed Defendant counsel. Defendant's counsel then filed an amended PCRA Petition on April
22, 2014. Following a hearing on July 3, 2014, the Court reinstated Defendant's appellate rights
nunc pro tune and Defendant subsequently filed a Notice of Appeal. After Defendant filed said
Notice of Appeal, the Superior Court of Pennsylvania, for the reasons articulated in its Opinion
dated February 11, 2015, affirmed Defendant's judgment of sentence and permitted counsel of
record to withdraw his appearance. See generally Commonwealth v. Gonzales, 1292 WDA 2014
(Pa. Super. Ct. Feb. 11, 2015).
Following the Superior Court's affirmance of the judgment of sentence we entered in this
case, Defendant filed a petition titled "Pro Se Petition To Correct And/Or Modify Unconstitutional
Sentence To Com. v. Muniz, J-121B-2016 (19 July 2017)" with this Court on September 5, 2017. 1 Construing this filing as Defendant's second PCRA Petition, we appointed Defendant counsel to
1 We construe the instant filing before the Court as a PCRA petition for reasons articulated infra.
3 represent him. On April 6, 2018, �efendant's counsel filed an amended PCRA Petition, which is
instantly before the Court.
The Court convened a hearing on the instant PCRA Petition on July 16, 2018.
Analysis
In the amended PCRA Petition, Defendant argues that, in light of the Supreme Court of
Pennsylvania's ruling in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), it is unconstitutional
to retroactively apply SORNA registration and reporting requirements to him, a pre-SORNA
sexual offender. Specifically, Defendant argues that, although he was sentenced on April 24, 2013
for his convictions in this case, which is after SORNA was enacted, he was convicted of said
crimes before SORNA's effective date of December 20, 2012. Moreover, Defendant argues that
the sexual offender registration law that was in effect at the time he sustained his convictions in
this case, Megan's Law III, was declared unconstitutional by the Supreme Court of Pennsylvania's
ruling in Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013). Thus, because Muniz has declared
retroactive application of SORNA registration requirements to pre-SORNA offenders is
unconstitutional and because the Megan's Law III has previously been declared unconstitutional,
Defendant requests that "he be released from all sex offender registration requirements." See Def.' s
Pet., Prayer for Relief.
At the hearing on his instant PCRA Petition, both defense counsel and the
Commonwealth's attorney presented argument on the merits of the Petition. However, we do not
reach the merits of the instant Petition. Rather, we are constrained to rule that we lack jurisdiction
to entertain Defendant's instant PCRA Petition in light of the Superior Court of Pennsylvania's
ruling in Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super. Ct. 2018). In Murphy, the Superior
Court was tasked with reviewing a PCRA court's order denying a defendant's PCRA petition. Id.
4 at 403-04. The defendant's PCRA petition argued, inter alia, that, in light of the Muniz decision,
retroactively imposing SORNA registration requirements on him, a pre-SORNA sexual offender,
is unconstitutional. Id. at 404. The Murphy Court, in ruling on the defendant's appeal, opined that
the defendant's PCRA petition was facially untimely as it was not filed within one year of the date
that defendant's judgment of sentence became final. Id. at 404. The Murphy Court further held that
raising a claim based on Muniz does not satisfy any of the exceptions for filing a PCRA petition
outside of the one year jurisdictional timeframe. Id. at 405-06. Specifically, in holding that a PCRA
claim based on Muniz does not satisfy any of the timeliness exceptions set forth in 42 Pa.C.S.A. §
9545(b), the Murphy Court reasoned as follows:
Appellant's reliance on Muniz cannot satisfy the 'new retroactive right' exception of section 9545(b)(l)(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 court 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.
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 section 9545(b)(l)(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.
5 Id. at 405-06.
In the instant case, Defendant's judgment of sentence became final in this case on March
14, 2015, 30 days after the date the Superior Court affirmed his judgment of sentence via its
Opinion dated February 11, 2015.2 See 42 P?-.C.S.A. § 9545(b)(3) (stating that 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); Pa.R.A.P. 1113 (stating that a petition for allowance of appeal must be filed with the
prothonotary of the Supreme Court of Pennsylvania within 30 days after the entry of the order or
opinion of Superior Court of Pennsylvania sought to be reviewed). Accordingly, if Defendant
wanted to file the instant PCRA Petition, he must have filed it by March 14, 2016 for it to be
facially timely pursuant to 42 Pa.C.S.A. § 9545(b)(l). Defendant's instant Petition is treated as
being filed on September 5, 2017,3 the date on which Defendant filed his "Pro Se Petition To
Correct And/Or Modify Unconstitutional Sentence To Com. v. Muniz, J-1218-2016 (19 July
2017)." Consequently, Defendant's instant Petition is facially untimely pursuant to 42 Pa.C.S.A.
§ 9545(b)(l) as it was filed after March 14, 2016.
Because Defendant's instant PCRA Petition is facially untimely, Defendant must prove
one of the three timeliness exceptions outlined in 42 Pa.C.S.A. § 9545(b)(l)(i)-(iii) exists in order
· for this Court to have jurisdiction over his instant PCRA Petition. From his original pro se filing
and from the filing of the amended PCRA Petition that is instantly before the Court, it appears as
though Defendant is only trying to prove the timeliness exception outlined in 42 Pa.C.S.A. §
2The record reveals that Defendant did not appeal the decision of the Superior Court affirming our judgment of sentence in this case to the Supreme Court of Pennsylvania. Accordingly, Defendant's judgment became final when the time elapsed to timely file an appeal with the Supreme Court of Pennsylvania. See Pa.R.A.P. 1113; 42 Pa.C.S.A. § 9545(b)(3). 3 Inmate filings are treated as filed upon the date they are placed into the prison's mailbox. Commonwealth v. Jones, 549 Pa. 58, 700 A.2d 423, 425 (1997). The record reveals that Defendant, who is currently incarcerated, mailed his prose Petition on September 5, 2017. Accordingly, the instant Petition is treated as being filed on September 5, 2017.
6 9545(b )(1 )(iii) by asserting that Muniz created a new constitutional right that has been held by the
Supreme Court of Pennsylvania to be retroactive. According to the Superior Court of
Pennsylvania's ruling in Murphy, Defendant's reliance on Muniz as a means by which to satisfy
the 42 Pa.C.S.A. § 9545(b)(l)(iii) exception is misplaced. See Muniz, 180 A.3d at405-06. Because
we are bound by the Superior Court's precedential decision in Murphy, we must rule that we do
not have jurisdiction to entertain Defendant's instant PCRA Petition. Accordingly, we will dismiss
said Petition.
We do note for the record that defense counsel captioned the instant filing before the Court
as "Amended Petition For Post-Conviction Relief/Habeas Corpus," which suggests that defense
counsel requests the relief set forth in said filing under the PCRA as well as under the doctrine of
habeas corpus. However, Defendant is not entitled to the requested relief under the doctrine of
habeas corpus because the PCRA subsumes the writ of habeas corpus with respect to the remedies
offered by the PCRA. See Commonwealth v. Descardes, 136 A.3d 493, 496-97 (Pa. 2016) ("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.")
(quoting 42 Pa.C.S.A. § 9542); Commonwealth v. Fahy, 737 A.2d 214, 223-24 (Pa. 1999)(opining
that the writ of habeas corpus continues to exist as an independent basis for relief only in cases in
which there is no remedy under the PCRA). "Issues that are cognizable under the PCRA must be
raised in a timely PCRA petition and cannot be raised in a habeas corpus petition. Phrased
differently, a defendant cannot escape the PCRA time-bar by titling his petition or motion as a writ
of habeas corpus." Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. Ct. 2013) (emphasis
added). The PCRA specifically "provides for an action by which ... persons serving illegal
sentences may obtain collateral relief." 42 Pa.C.S.A. § 9542; see also 42 Pa.C.S.A. § 9543 (stating
7 that defendants who prove by a preponderance of evidence that their sentence is greater than the
lawful maximum are entitled to rel�efunder the PCRA). Because Defendant's current filing argues
that application of SORNA registration requirements as to him constitutes an illegal sentence, we
construe this instant filing solely as a PCRA Petition and find that he is not entitled to habeas
corpus relief as challenges to illegal sentences can be brought under the PCRA. Commonwealth v.
Fowler, 2007 Pa. Super. 219, 930 ,:\.2d 586, 591 (2007) ("It is equally well-settled that the PCRA
provides the sole means for obtaining collateral review, and that any petition filed after the
judgment of sentence becomes final will be treated as a PCRA petition.") (internal quotation marks
and citations omitted). Our finding is in line with the Superior Court of Pennsylvania's recent,
albeit non-precedential, decision in Commonwealth v. German, No. 3120 EDA 2017, 2018 WL
3765968, at *3 (Pa. Super. Ct. Aug. 9, 2018). In German, the Superior Court ruled that a trial court
properly construed a defendant's petition challenging SORNA's registration and reporting
requirements in light of Muniz as a PCRA petition and not a habeas corpus petition by reasoning
as follows:
Because the reporting requirements are punitive and part of the sentence, as determined by our Supreme Court in Muniz, a claim challenging that designation or process is cognizable under the PCRA. Furthermore, following the Muniz ruling, the Masker/Leidig line of cases no longer supports the conclusion that these claims are outside the confines of the PCRA. Thus, the Court of Common Pleas properly considered Appellant's instant petition under the framework of the PCRA.
Id. at *3. While we are not bound by non-precedential decisions of the Superior Court, we find the
Superior Court's rationale and holding in German to be persuasive. As such, we find that
Defendant is not entitled to the relief requested in his instant Petition under the doctrine of habeas
corpus.
8 For the reasons articulated above, we find that we lack jurisdiction over Defendant's instant
PCRA Petition. Accordingly, we will dismiss said Petition.
An appropriate Order of Court shall follow.
cc: DA P. Sibley, Esq. R. Whitman
9 Circulated 08/14/2019 12:31 PM
IN THE COURT OF COMMON PLEAS OF VENANGO COUNTY, PENNSY.LVANIA .· .. CRIMINAL DIVISION . . ,
COMMONWEALTH OF PENNSYLVANIA, 1\l.;p Cc:Mii.Ji,,.,,,. CR. No. 289-2011 c VII:' fJ{ t-: \lf:ii/Ai;�l:J..rr �,;;;At . 1cc. �tt
�i6 WI:)A, 2q_19< ·...:i·.•
JUAN JOSE GONZALES, Superior Court Docket No. Appellant.
OPINION OF COURT PUR§lUANT 'fO Pa. RA.P. 1925(a{ 1t"' · · AND NOW, f:JM,., ,.f!f·t'//.VJ. /! ,.,.�?f , 2019, the Court, has for consideration a Concise "4·,
' •' Statement of Matters. Complained of on Appeal Pursuant to Rule of Appellate Procedure 1925 (b)
("Concise Statement"), filed by the Appellant Juan Jose Gonzales. Gonzales appeals from this
Court's Order of December 21, 2018, denying Gonzales' Post Conviction Relief Act Petition
("PCRA Petition" or "Petition") as untimely. Pursuant to Pa.R.A.P. 1925(a)(l), "if the reasons for
the order do not already appear of record, [the court] shall forthwith file of record at least a brief
opinion of the reasons for the order, or for the rulings or other errors complained of, or shall specify
in writing the place in the record where such reasons may be found." Gonzales makes the following
two assertions of error in his Concise Statement: (1) that this Court erred in determining his Petition
was untimely, and (2) that the conditions of SORNA are punitive in nature, and, therefore,
application of SORN A to Gonzales, who was convicted prior to its enactment, is unconstitutional.
Concise Statement 111-2. We have addressed the first issue in our Opinion of Court dated
December 21, 2018. Accordingly, we direct the parties' attention and your Honorable Court's
attention to our Opinion of Court dated December 21, 2018 for a full discussion of our disposition
on that issue. However, we instantly elaborate on the first issue for the sole purpose of clarifying
a finding we made in our December 21, 2018 Opinion of Court.
1 In our December 21, 2018 Opinion of Court, we explained our ratic:inale for denying
Gonzales' PCRA Petition as untimely. Specifically, we noted that, on February 11, 2015, the
Superior Court of Pennsylvania affirmed Gonzales' April 24, 2013 judgment of sentence and
dismissed his appeal. Accordingly, for Gonzales' PCRA Petition to be facially timely, he must
have filed said Petition within one year of the date his judgment of sentence became final. See 42
Pa.C.S.A. § 9545(b). Because Gonzales did not petition the Supreme Court of Pennsylvania for
allowance of appeal after the Superior Court of Pennsylvania entered its February 11, 2015 ruling
affirming his judgment of sentence in this case, we opined in our December 21, 2018 Opinion that
Gonzales' judgment of sentence became final on March 14, 2015, which was 30 days after the
Superior Court of Pennsylvania entered its February 11, 2015 ruling. See Opinion of Court,
Commonwealth v. Gonzales, CR. No. 289-2011, at 6 (Venango Cty. C.P. Dec. 21, 2018) (citing
42 Pa.C.S.A. § 9545(b)(3) and Pa.R.A.P. 1113). For this reason, we opined that, in order for the
Petition to be considered facially timely, it must have been filed by March 14, 2016. Id. However,
upon review of the date that we opined Gonzales' judgment of sentence became final, March 14,
2015, we note that this date fell on a-Saturday. Accordingly, at the very latest, Gonzales' judgement
of sentence would have been considered final on the subsequent Monday, March 16, 2015.
Accordingly, pursuant to 42 Pa.C.S.A. § 9545(b), any PCRA petitions filed on behalf of Gonzales
must have been filed by March 16, 2016 to be considered facially timely unless Gonzales' pleaded
and proved that one of the three exceptions enumerated in 42 Pa.C.S.A. § 9545(b) applied to his
Petition. The Petition was filed by Gonzales on September 5, 2017. Accordingly, regardless of ' whether Gonzales' judgment of sentence became final on March 14, 2015 or March 16, 2015,
Gonzales' Petition was filed more than one year after his judgment of sentence became final.
Consequently, as we opined in our December 21, 2018 Opinion, Gonzales' Petition was facially
2 untimely and he must have pleaded and proved that one of the jurisdictional exceptions enumerated
in 42 Pa.C.S.A. § 9545(b) applied in order for this Court to rule on the merits of the Petition.
In his PCRA Petition, it appeared as though Gonzales aimed to plead and prove the
jurisdictional exception enumerated in 42 Pa.C.S.A. § 9545(b)(l)(iii) as the basis for this Court to
be able to rule on the merits of his PCRA Petition. Section 9545(b)(l)(iii) provides as follows:
(b) Time for filing petition. -
(1) 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:
*** (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)(l)(iii). Gonzales pleaded in his Petition and argued at the hearing thereon
that, in Commonwealth v. Muniz, 164 AJd 1189 (Pa. 2017), the Supreme Court of Pennsylvania
ruled that retroactive application of SORNA's sexual offender registration and reporting
requirements to pre-SORNA offenders is unconstitutional. See Am. PCRA Pet. � 5. Gonzales
further contended that, because he sustained his convictions in this case prior to SORNA's
effective date, application of SORNA as to him is unconstitutional. Moreover, Gonzales also
argued that, because Megan's Law III was in effect at the time he sustained his convictions in this
case and that law was subsequently declared unconstitutional by Commonwealth v. Neiman, 84
A.3d 603 (Pa. 2013), he should "be released from all sex offender registration requirements." See
Am. PCRA Pet. ,� 6-7, Prayer for Relief. Accordingly, Gonzales attempted to use the
constitutional right promulgated in Muniz as the means by which to assert that this Court had
3 jurisdiction to entertain a PCRA petition requesting relief pursuant to Muniz under 42 Pa.C.S.A. §
9545(b )( 1 )(iii).
In our Opinion of Court dated December 21, 2018, we explained that, in light of your
Honorable Court's decision in Commonwealth v. Murphy, 180 A.3d 402 (Pa. 2018), we lacked
jurisdiction to entertain Gonzales' Petition. In Murphy, your Honorable Court ruled that the
constitutional right promulgated in Muniz does not satisfy the 42 Pa.C.S.A. § 9545(b)(l)(iii)
jurisdictional exception so as to allow a PCRA court to entertain an otherwise untimely PCRA
petition. 180 A.3d at 405; see also Opinion of Court, Commonwealth v. Gonzales, CR. No. 289-
2011, at 4-7 (Venango Cty. C.P. Dec. 21, 2018). For this reason, and noting that the PCRA Petition
was not filed within one year of the date Gonzales' judgment of sentence became final, we
dismissed the Petition for lack of jurisdiction.
As to the second assertion of error Gonzales' makes in his Concise Statement, he contends
that application of SORNA to him is unconstitutional. See Concise Statement ,r 2. While he does
not state so specifically, it is clear that Gonzales makes this assertion based on the rule promulgated
in Muniz. Because we have determined, based on your Honorable Court's decision in Murphy, that
we lack jurisdiction over Gonzales' PCRA Petition premised on Muniz, it is inappropriate for this
Court to opine as to the merits of the second matter asserted on appeal. Commonwealth v. Fahy,
737 A.2d 214, 223 (Pa. 1999) (holding that the court has no jurisdiction to entertain an untimely
PCRA Petition). For this reason, we decline to address Gonzales' second matter asserted on appeal
on the merits at this time. 1
1 We note that, if the Supreme Court of Pennsylvania declares that the new constitutional right promulgated in Muniz is retroactive for collateral review purposes, then Gonzales could certainly file a PCRA Petition within 60 days of that Supreme Court ruling. See Murphy, 180 A.3d at 405 n.1. If this occurs, then said filing would meet the jurisdictional exception enumerated in 42 Pa.C.S.A. § 9545(b)(l)(iii).
4 Accordingly, for the reasons articulated above as well as for the reasons articulated in our
Opinion of Court dated December 21, 2018, we respectfully request that your Honorable Court
affirm our December 21, 2018 Order of Court dismissing Gonzales' PCRA Petition for lack of
jurisdiction.
BY THE COURT,
Oliver I. If&b��gh, Pres}�nt Judge . ._; P. Sibley, Esq;,V. ,/,�//-;.// ./L cc: DA