J-S19045-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
S.W., :
:
Appellant : No. 2132 EDA 2018
Appeal from the PCRA Order Entered June 20, 2018
in the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0002904-2003
BEFORE: LAZARUS, J., KUNSELMAN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 21, 2019
S.W.1 (Appellant) appeals from the order entered on June 20, 2018,
dismissing his petition filed under the Post Conviction Relief Act (PCRA), 42
Pa.C.S. §§ 9541-9546. We affirm.
This Court has set forth the factual and procedural history as follows.
On September 5, 2005, Appellant was convicted by a jury
of two counts of rape, two counts of involuntary deviate sexual
intercourse with a child, and two counts of indecent assault. His
convictions stemmed from the abuse of his three-year old
daughter, C.W. Appellant was sentenced on January 4, 2006, to
an aggregate term of 11 to 22 years’ incarceration. He filed a
timely appeal and this Court affirmed his judgment of sentence on
December 31, 2007. Commonwealth v. [S.W.], 945 A.2d 773
(Pa. Super. 2007) (unpublished memorandum). Appellant did not
file a petition for allowance of appeal with our Supreme Court;
however, he subsequently filed a timely PCRA petition seeking
1 Because Appellant’s underlying convictions involve the sexual assault of his
biological daughter, who shares Appellant’s last name, we have changed
Appellant’s and the victim’s names to initials to protect the victim’s privacy.
* Retired Senior Judge Assigned to the Superior Court.
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restoration of his right to do so. That PCRA petition was granted
and Appellant filed a nunc pro tunc petition for allowance of appeal
to our Supreme Court, which was denied on April 20, 2010.
Commonwealth v. [S.W.], 992 A.2d 889 (Pa. 2010).
Commonwealth v. S.W., 116 A.3d 697 (Pa. Super. 2014) (unpublished
memorandum at 1-2). Thereafter, Appellant filed a timely pro se PCRA
petition. Counsel was appointed, who filed an amended PCRA petition on
Appellant’s behalf. The PCRA court denied that petition after a hearing, and
on December 23, 2014, this Court affirmed the order denying that petition.
Id.
On September 11, 2017, Appellant filed another pro se PCRA petition.
The PCRA court appointed counsel, who filed an amended PCRA petition on
February 6, 2018. In the amended PCRA petition, Appellant contended, inter
alia, that the registration provisions of Pennsylvania’s Sex Offender
Registration and Notification Act (SORNA) violate the ex post facto clauses of
the U.S. and Pennsylvania constitutions. Amended PCRA Petition, 2/6/2018,
at ¶ 20. Appellant further contended his petition was timely filed pursuant to
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).2 Id. at ¶¶ 21-22, 24-
26.
The Commonwealth filed an answer to the amended petition, and on
May 1, 2018, the PCRA court issued notice of its intent to dismiss the petition
2 In Muniz, our Supreme Court held that certain registration provisions of
SORNA are punitive and retroactive application of those provisions violates
the ex post facto clause of the Pennsylvania constitution.
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without a hearing pursuant to Pa.R.Crim.P. 907. Appellant did not respond,
and the PCRA court dismissed the petition on June 20, 2018. Appellant timely
filed a notice of appeal, and both Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
On appeal, Appellant argues, pursuant to Muniz, that the registration
requirements of SORNA cannot be applied retroactively to Appellant’s
convictions. Appellant’s Brief at 12-14, 16-37. In Appellant’s February 6,
2018 filing, counsel filed what she titled “Amended Petition for Post-Conviction
Relief under the Post-Conviction Relief Act and/or Habeas Corpus Relief under
Article I, Section 14 of the Pennsylvania Constitution and/or Motion to Correct
Illegal Sentence.” The PCRA court treated the filing as a PCRA petition.
Appellant also argues on appeal that SORNA’s registration requirements
amount to custody and the lower court erred in not issuing a writ of habeas
corpus barring registration requirements under SORNA. See Appellant’s Brief
at 14-16. As we have explained,
[i]t is well-settled that the PCRA is intended to be the sole means
of achieving post-conviction relief. Unless the PCRA could not
provide for a potential remedy, the PCRA statute subsumes the
writ of habeas corpus. 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, 465-66 (Pa. Super. 2013) (citations
omitted); see also 42 Pa.C.S. § 9542.
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In his February 6, 2018 filing, Appellant invoked Muniz. This Court has
held that “invocation of Muniz implicates the legality of [the] sentence, which
is an issue cognizable under the PCRA and, therefore, subject to the PCRA’s
timeliness requirements.” Commonwealth v. Greco, 203 A.3d 1120, 1123
(Pa. Super. 2019). “[C]laims challenging application of SORNA’s registration
provisions … are properly considered under the PCRA.” Id. Accordingly,
Appellant’s February 6, 2018 filing is a PCRA petition. In any event, Appellant
waived his habeas corpus issue by failing to raise it in his Pa.R.A.P. 1925(b)
statement. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)
(“Any issues not raised in a 1925(b) statement will be deemed waived.”); Rule
1925(b) Statement, 8/13/2018.
We now turn to whether this PCRA petition was timely filed. 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, the
petition “shall be filed within 60 days of the date the claim could have been
presented.”3 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
3 On October 24, 2018, the General Assembly amended subsection 9545(b)(2)
in order to extend the time for filing a petition from 60 days to one year from
the date the claim could have been presented. See 2018 Pa.Legis.Serv.Act
2018-146 (S.B. 915), effective December 24, 2018.
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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 was sentenced on January 4, 2006. This Court affirmed,
and his 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 April 20, 2010. See U.S. Sup. Ct. Rule 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 a timely PCRA petition. Thus, Appellant’s petition filed on
September 11, 2017, is facially untimely, and he was required to plead and
prove an exception to the timeliness requirements.
In his amended petition and on appeal, Appellant attempts to plead the
new-retroactive-right exception4 by invoking Muniz. Amended PCRA Petition,
4 This exception provides as follows.
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. § 9545(b)(1)(iii).
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2/6/2018, at ¶¶ 12, 17-19, 21-22, 24-25; Appellant’s Brief at 14, 16-17, 26.
This Court considered whether Muniz applied under similar circumstances in
Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super. 2018). In that case,
this Court acknowledged
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 [Murphy’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
[sub]section 9545(b)(1)(iii). Because at this time, no such
holding has been issued by our Supreme Court, [Murphy] cannot
rely on Muniz to meet th[e third] timeliness exception.
Murphy, 180 A.3d at 405-06 (emphasis in original; some citations omitted).
In other words, this Court concluded that the holding in Muniz does not
apply at this point to untimely-filed PCRA petitions. This Court acknowledges
that “if the Pennsylvania Supreme Court issues a decision holding that Muniz
applies retroactively, [Appellant] can then file a PCRA petition, within [one
year] of that decision, attempting to invoke the ‘new[-]retroactive[-]right’
exception in [sub]section 9545(b)(1)(iii).” Murphy, 180 A.3d at 406 n.1.
Based on the foregoing, we conclude that Appellant’s petition was filed
untimely, and he has not proven an exception to the timeliness requirements.
Thus, he is not entitled to relief. See Commonwealth v. Albrecht, 994 A.2d
1091, 1095 (Pa. 2010) (affirming dismissal of PCRA petition without a hearing
because the appellant failed to meet burden of establishing timeliness
exception).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2019
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