Com. v. Gooding, J.

• Court: Superior Court of Pennsylvania
• Decided: December 21, 2018
• Docket: 557 EDA 2018
• Status: Unpublished

Opinion

J-S70033-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : JOSHUA MICHAEL GOODING, : : Appellant : No. 557 EDA 2018

Appeal from the PCRA Order January 31, 2018 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0003180-2004

BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

JUDGMENT ORDER BY GANTMAN, P.J.: FILED DECEMBER 21, 2018

Appellant, Joshua Michael Gooding, appeals pro se from the order

entered in the Chester County Court of Common Pleas, which denied his

second petition brought pursuant to the Post-Conviction Relief Act (“PCRA”),

at 42 Pa.C.S.A. §§ 9541-9546. On October 5, 2004, Appellant entered an

open guilty plea to involuntary deviate sexual intercourse, burglary, and

simple assault. The court sentenced Appellant on March 3, 2005, to an

aggregate term of 12½ to 42 years’ imprisonment, and deemed Appellant a

sexually violent predator. Appellant did not appeal.

On May 7, 2015, Appellant filed pro se a petition for writ of habeas

corpus, which the court treated as a first PCRA petition. The PCRA court

appointed counsel, who filed a no-merit letter, pursuant to Commonwealth

v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley, J-S70033-18

550 A.2d 213 (Pa.Super. 1988) (en banc), and a petition to withdraw on

September 14, 2015. The PCRA court issued notice of its intent to dismiss

pursuant to Pa.R.Crim.P. 907 on November 10, 2015, and denied relief and

granted counsel’s petition to withdraw on January 20, 2016. Appellant did not

appeal.

On October 2, 2017, Appellant filed pro se his second PCRA petition,

which asserted relief due under Commonwealth v. Muniz, 640 Pa. 699, 164

A.3d 1189 (2017), cert denied, ___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 213

(2018). The PCRA court issued Rule 907 notice on January 3, 2018, and

Appellant responded pro se on January 26, 2018. On January 31, 2018, the

PCRA court denied relief. Appellant timely filed a pro se notice of appeal on

February 20, 2018. The PCRA court, on February 26, 2018, ordered Appellant

to file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b); Appellant timely complied on March 5, 2018.

Preliminarily, any petition for post-conviction collateral relief will

generally be considered a PCRA petition if the petition raises issues cognizable

under the PCRA. See Commonwealth v. Jackson, 30 A.3d 516 (Pa.Super.

2011), appeal denied, 616 Pa. 634, 47 A.3d 845 (2012); 42 Pa.C.S.A. § 9542

(stating PCRA shall be sole means of obtaining collateral relief and

encompasses all other common law and statutory remedies for same

purpose). The timeliness of a PCRA petition is a jurisdictional requisite.

Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA petition

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must be filed within one year of the date the underlying judgment becomes

final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence is deemed final at

the conclusion of direct review or at the expiration of time for seeking review.

42 Pa.C.S.A. § 9545(b)(3). The statutory exceptions to the time-bar allow for

very limited circumstances to excuse the late filing of a petition; a petitioner

asserting an exception must file a petition within 60 days of the date the claim

could have been presented. See 42 Pa.C.S.A. § 9545(b)(1-2).

Instantly, Appellant styled his current petition as a PCRA petition but

argues the PCRA court erred by not construing the petition as a different

appropriate legal vehicle. Appellant’s challenge to the constitutionality of his

sex offender registration is cognizable under the PCRA. Thus, the PCRA court

properly treated Appellant’s filing as a PCRA petition. See 42 Pa.C.S.A. §

9543(a)(2)(i); Jackson, supra. Appellant’s judgment of sentence became

final on April 2, 2005, upon expiration of the time to file a direct appeal with

this Court. See Pa.R.A.P. 903(a). Appellant filed the current petition for

collateral relief on October 2, 2017, which is patently untimely. See 42

Pa.C.S.A. § 9545(b)(1). Appellant’s assertion in his PCRA petition that Muniz

satisfies the newly recognized constitutional right exception to the PCRA time-

bar fails. See Commonwealth v. Murphy, 180 A.3d 402 (Pa.Super. 2018),

appeal denied, ___ Pa. ___, ___ A.3d ___ (2018) (stating petitioner cannot

rely on Muniz to meet timeliness exception under Section 9545(b) unless and

until Supreme Court allows). Likewise, Muniz fails to satisfy the new facts

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exception to the PCRA time-bar. See Commonwealth v. Watts, 611 Pa. 80,

23 A.3d 980 (2011) (stating judicial determinations are not “facts” within

meaning of Section 9545(b)(1)(ii)). Therefore, Appellant’s petition remains

time-barred, and the PCRA court lacked jurisdiction to review it. See Zeigler,

supra. Accordingly, we affirm.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/21/18

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