Com. v. Kelly, P.

• Court: Superior Court of Pennsylvania
• Decided: June 29, 2020
• Docket: 2162 EDA 2019
• Status: Unpublished

Opinion

J-S27036-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

* Former Justice specially assigned to the Superior Court. 1 42 Pa.C.S.A. §§ 9541-9546. J-S27036-20

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 ____________________________________________

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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