Com. v. Pinero, O.

J-A24015-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OMAR PINERO :
:
Appellant : No. 1770 WDA 2019

Appeal from the PCRA Order Entered October 30, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0012815-2009

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 29, 2020

Appellant, Omar Pinero, appeals from the order denying his untimely

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

9541–9546. Appellant also challenges the PCRA court’s denial of his petition

for habeas corpus relief. After careful review, we affirm.

The facts supporting Appellant’s conviction are not germane to this

appeal. Pursuant to a plea agreement, Appellant entered a nolo contendere

plea on March 24, 2010, to one count each of aggravated indecent assault,

indecent assault (against a person less than 13 years old), and corruption of

minors.1 On October 15, 2010, the trial court sentenced him to 5-10 years’

incarceration for aggravated indecent assault, and to a consecutive term of 5

____________________________________________

1 Respectively, 18 Pa.C.S. §§ 3125(a)(1), 3126(a)(7), and 6301(a)(1).
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years’ probation for indecent assault. Additionally, the court designated

Appellant to be a sexually violent predator (“SVP”) under Megan’s Law III.2

This Court affirmed his judgment of sentence on direct appeal on March 12,

2012, and our Supreme Court subsequently denied further review.

Commonwealth v. Pinero, 47 A.3d 1242 (Pa. Super. 2012) (unpublished

memorandum), appeal denied, 50 A.3d 692 (Pa. 2012).

Appellant filed a pro se PCRA petition on August 15, 2018, and the PCRA

court promptly appointed PCRA counsel, who then filed an amended PCRA

petition on Appellant’s behalf on February 21, 2019, which incorporated a

habeas corpus petition (“habeas petition”) presenting an alternative argument

for identical relief. On September 27, 2019, the PCRA court issued notice of

its intent to dismiss the petition without a hearing pursuant to Pa.R.Crim.P.

907(1). Appellant did not file a response thereto and, on October 30, 2019,

the PCRA court entered an order dismissing both the amended petition, and

the incorporated habeas petition. Appellant filed a timely notice of appeal,

and a timely, court-ordered Pa.R.A.P. 1925(b) statement. The court issued

its Rule 1925(a) opinion on January 8, 2020.

Appellant now presents the following question(s) for our review:

____________________________________________

2 Megan’s Law III governed Pennsylvania’s registration, notification, and
counseling (“RNC”) requirements for sex offenders immediately prior to the
adoption of Pennsylvania’s Sex Offender Registration and Notification Act
(“SORNA”), Act of Dec. 20, 2011, P.L. 446, No. 111, as amended, 42 Pa.C.S.
§§ 9799.10 to 9799.41.

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Whether the lower court had jurisdiction to address the underlying
merits of Appellant’s “Amended PCRA Petition and/or Petition for
Writ of Habeas Corpus.”

Appellant’s Brief at 6. We will first address whether the PCRA court erred in

denying Appellant’s PCRA petition as untimely. Second, we will consider

whether the court erred in denying Appellant’s habeas petition.3

However, before we address either issue, some general background on

the legislative history and case law at issue is appropriate. After the trial court

deemed Appellant to be an SVP under Megan’s Law III, Pennsylvania’s General

assembly passed SORNA in 2012, imposing, retroactively, new RNC

requirements on sex offenders, including SVPs, such as Appellant. In

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), our Supreme Court

determined that the general scheme of RNC requirements under SORNA

constituted criminal punishment and, consequently, that retroactive

application of those requirements was an ex post facto violation.4

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3 For ease of disposition, we have reversed the order in which Appellant
presented these issues in his brief.

4 After Muniz, a panel of this Court addressed the more specific RNC
requirements for SVPs under SORNA. Applying Muniz and Alleyne v. United
States, 570 U.S. 99 (2013), this Court held that the RNC requirements
applicable to SVPs under SORNA constituted an unconstitutional criminal
punishment imposed not by a jury, but by a judge under the lesser
preponderance-of-the-evidence standard. See Commonwealth v. Butler,
173 A.3d 1212 (Pa. Super. 2017), rev'd, 226 A.3d 972 (Pa. 2020) (“Butler
I”). Subsequently, in Commonwealth v. Butler, 226 A.3d 972, 993 (Pa.
2020) (“Butler II”), our Supreme Court overturned Butler I, holding that the
“RNC requirements applicable to SVPs” under SORNA “do not constitute

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Following Muniz and Butler [I], the Pennsylvania General
Assembly enacted legislation to amend SORNA. See Act of Feb.
21 2018, P.L. 27, No. 10 (“Act 10”). Act 10 amended several
provisions of SORNA, and also added several new sections found
at 42 Pa.C.S.[] §§ 9799.42, 9799.51-9799.75. In addition, the
Governor of Pennsylvania signed new legislation striking the Act
10 amendments and reenacting several SORNA provisions,
effective June 12, 2018. See Act of June 12, 2018, P.L. 1952, No.
29 (“Act 29”). Through Act 10, as amended in Act 29, the General
Assembly created Subchapter I, which addresses sexual offenders
who committed an offense on or after April 22, 1996, but before
December 20, 2012. See 42 Pa.C.S.[] §§ 9799.51-9799.75.
Subchapter I contains less stringent reporting requirements than
Subchapter H, which applies to offenders who committed an
offense on or after December 20, 2012. See 42 Pa.C.S.[] §§
9799.13, 9799.54.

Commonwealth v. Alston, 212 A.3d 526, 529 (Pa. Super. 2019).

Thus, Appellant is subject to Subchapter I under the current version of

SORNA, as his offense occurred before December 20, 2012, but after April 22,

1996. Our Supreme Court recently addressed the constitutionality of

Subchapter I, holding that it is “non[-]punitive” and, therefore, “does not

violate the constitutional prohibition against ex post facto laws.”

Commonwealth v. Lacombe, 35 MAP 2018, 2020 WL 4148262, at *1 (Pa.

July 21, 2020).

With this background in mind, we now turn to address Appellant’s

claims.

PCRA

____________________________________________

criminal punishment” and, therefore, do not violate Alleyne. Butler II, 226
A.3d at 993.

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We review an order dismissing a petition under the PCRA in the
light most favorable to the prevailing party at the PCRA level. This
review is limited to the findings of the PCRA court and the evidence
of record. We will not disturb a PCRA court’s ruling if it is
supported by evidence of record and is free of legal error. This
Court may affirm a PCRA court’s decision on any grounds if the
record supports it. Further, we grant great deference to the
factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (internal

citations omitted).

We must begin by addressing the timeliness of Appellant’s pro se PCRA

petition, because the PCRA time limitations implicate our jurisdiction and may

not be altered or disregarded in order to address the merits of a petition.

Commonwealth v. Bennett, 930 A.2d 1264, 1267 (Pa. 2007) (stating that

the PCRA time limitations implicate our jurisdiction and may not be altered or

disregarded to address the merits of the petition). Under the PCRA, any

petition for post-conviction relief, including a second or subsequent one, must

be filed within one year of the date the judgment of sentence becomes final,

unless one of the following exceptions set forth in 42 Pa.C.S. § 9545(b)(1)(i)-

(iii) applies:

(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:

(i) the failure to raise the claim previously was the result
of interference by government officials with the

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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). Additionally, Section 9545(b)(2) requires that

any petition attempting to invoke one of these exceptions “shall be filed within

one year of the date the claim could have been presented.” 42 Pa.C.S. §

9545(b)(2). Here, Appellant’s pro se PCRA petition was patently untimely.

Therefore, he was required to plead and prove the applicability of an exception

under Section 9545(b).

Appellant challenges the order dismissing his PCRA petition as untimely

on two grounds. He first argues that if “Act 10 Subchapter I[’s] [RNC]

requirements are challenges to the legality of a sentence then the enactment

of Act 10 is the functional equivalent of a ‘resentence,’ which would have

occurred upon the enactment of Act 10 on February 21, 2018.” Appellant’s

Brief at 26-27. Thus, Appellant essentially contends that his pro se PCRA

petition was timely filed on August 15, 2018. See 42 Pa.C.S. § 9545(b)(1)

(“Any petition under this subchapter … shall be filed within one year of the

date the judgment becomes final[.]”).

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We disagree. Appellant was not “resentenced” with the enactment of

Act 10 and Subchapter I. As recently determined by our Supreme Court in

Lacombe, the RNC requirements of Subchapter I are not criminal sanctions.

See Lacombe, 2020 WL 4148262, at *18 (“We hold Subchapter I does not

constitute criminal punishment….”). Consequently, the retroactive imposition

of Subchapter I’s RNC requirements on Appellant could not constitute a new

criminal sentence. Lacombe did not specifically address the RNC

requirements for SVPs under Subchapter I, however, it did not exclude them

from its conclusion either. In any event, to the extent that Lacombe’s holding

that Subchapter I is non-punitive does not extend to SVPs under Subchapter

I, Butler II adequately fills that gap.

In Butler II, the Supreme Court determined that the RNC requirements

applicable to SVPs under Subchapter H are non-punitive:

Although we recognize the RNC requirements impose affirmative
disabilities or restraints upon SVPs, and those requirements have
been historically regarded as punishment, our conclusions in this
regard are not dispositive on the larger question of whether the
statutory requirements constitute criminal punishment. This is
especially so where the government in this case is concerned with
protecting the public, through counseling and public notification
rather than deterrent threats, not from those who have been
convicted of certain enumerated crimes, but instead from those
who have been found to be dangerously mentally ill. Under the
circumstances, and also because we do not find the RNC
requirements to be excessive in light of the heightened public
safety concerns attendant to SVPs, we conclude the RNC
requirements do not constitute criminal punishment.

Butler II, 226 A.3d at 992–93 (citation omitted).

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As noted above, “Subchapter I contains less stringent reporting

requirements than Subchapter H.” Alston, 212 A.3d at 529. Because

Subchapter I’s RNC requirements applicable to SVPs are less burdensome than

are Subchapter H’s RNC requirements for SVPs, it must be the case that

Subchapter I’s RNC requirements for SVPs also do not constitute criminal

punishment given our Supreme Court’s decision in Butler II. Accordingly,

Appellant’s claim that he was ‘resentenced’ when Act 10 came into effect is

meritless, as Subchapter I’s RNC requirements are not criminal sanctions.

Next, Appellant claims, alternatively, that the enactment of Act 10

constitutes a newly-discovered fact under Section 9545(b)(1)(ii). See

Appellant’s Brief at 30-32. Appellant acknowledges that “subsequent

decisional law does not amount to a new ‘fact’ under section 9545(b)(1)(ii) of

the PCRA.” Commonwealth v. Watts, 23 A.3d 980, 987 (Pa. 2011).

Nevertheless, he argues:

A statute passed by the legislative branch of government is
fundamentally different then decisional case law decided by the
judicial branch. Courts interpret the law, whereas the legislature
makes laws. See Marbury v. Madison, 5 U.S. [] 137 [] (1803).
Since Watts dealt with the question of whether decisional case
law constitutes a newly discovered fact it should not be viewed as
controlling on the issue currently before this [C]ourt. The issue
[is] whether the enactment of Act 10, which imposes affirmative
duties upon Appellant, is a “fact” for purposes of the PCRA’s newly
discovered fact exception.

The newly discovered fact is the enactment of Act 10 and since
Appellant’s petition was filed within one year of the enactment of
Act 10[,] Appellant satisfies the newly discovered fact exception
to the PCRA jurisdictional time-bar.

Appellant’s Brief at 31-32.

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We are not convinced by Appellant’s perfunctory argument and citation

to Marbury that newly-enacted statutes constitute new facts for purposes of

invoking Section 9545(b)(1)(ii). Although the Watts Court specifically

addressed new decisional law, not new statutes, both constitute new law, not

new facts. We ascertain no significant difference between a new legislative

action and a new judicial action in the context of the newly-discovered fact

exception to the PCRA’s timeliness requirements. Accordingly, this aspect of

Appellant’s claim is also meritless.

For these reasons, we discern no abuse of discretion in the PCRA court’s

decision to deny Appellant’s PCRA petition as untimely.

Habeas Petition

Appellant also argues that his constitutional challenge to Act 10 is

cognizable in his habeas petition. The lower court found that Appellant’s

“claims would have been cognizable under the PCRA because they implicated

the legality of his sentence.” Rule 907(1) Order, at 5, ¶ 13. On that basis,

the court denied Appellant’s habeas petition.

Here, the general rule is that

the PCRA is intended to be the sole means of achieving post-
conviction relief. 42 Pa.C.S. § 9542; Commonwealth v. Haun,
… 32 A.3d 697 ([Pa.] 2011). Unless the PCRA could not provide
for a potential remedy, the PCRA statute subsumes the writ of
habeas corpus. [Commonwealth v.] Fahy, [737 A.2d 214,]
223–[]24 [Pa. 1999]; Commonwealth v. Chester, … 733 A.2d
1242 ([Pa.] 1999). Issues that are cognizable under the PCRA
must be raised in a timely PCRA petition and cannot be raised in
a habeas corpus petition. See Commonwealth v. Peterkin, …
722 A.2d 638 ([Pa.] 1998); see also Commonwealth v.

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Deaner, 779 A.2d 578 (Pa. Super. 2001) (a collateral petition that
raises an issue that the PCRA statute could remedy is to be
considered a PCRA 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).

However, in Lacombe, our Supreme Court advised:

This Court has not yet required that sexual offender registration
statutes be challenged through the PCRA or some other procedural
mechanism. Indeed, we have consistently decided cases
regarding sexual offender registration statutes that were
challenged via different types of filings. See Muniz, supra
(successful challenge to constitutionality of SORNA via direct
appeal), Commonwealth v. Martinez, … 147 A.3d 517, 523
([Pa.] 2016) (successful challenge to increase of registration term
through “Petition to Enforce Plea Agreement or for a Writ of
Habeas Corpus” where PCRA petition would have been untimely),
A.S. v. Pa. State Police, … 143 A.3d 896, 903 n.7 ([Pa.] 2016)
(successful challenge to registration term through mandamus
action against PSP)…. Our approach in this regard takes into
account the fact that frequent changes to sexual offender
registration statutes, along with more onerous requirements and
retroactive application, complicate registrants’ ability to challenge
new requirements imposed years after their sentences become
final.

This is especially so under the PCRA as many registrants, Lacombe
included, would be ineligible for relief on timeliness grounds. See
42 Pa.C.S. § 9545(b)(1) (PCRA petition must be filed within one
year of judgment of sentence becoming final unless exception
applies). Other registrants may be ineligible because their
sentence has expired while their registration requirements
continue. See 42 Pa.C.S. § 9543(a)(1) (PCRA petitioner must be
serving sentence to be eligible for relief). Both situations arise
from the fact that the registration period does not begin until
registrants are released from prison, which may be well after their
sentence has become final or may signal the completion of their
sentence. Accordingly, we decline to find the PCRA, or any other
procedural mechanism, is the exclusive method for challenging
sexual offender registration statutes and we thus conclude the
trial court had jurisdiction to consider Lacombe’s “Petition to
Terminate His Sexual Offender Registration Requirements.”

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Lacombe, 2020 WL 4148262 at *10.

Applying Lacombe, we are compelled to agree with Appellant that his

challenges to the constitutionality of his RNC requirements under Subchapter

I were cognizable as a habeas petition, and that the trial court consequently

erred in concluding otherwise. Turning to the merits of his habeas petition,

however, he is still not entitled to relief.

“Ordinarily, an appellate court will review a grant or denial of a petition

for writ of habeas corpus for abuse of discretion, … but for questions of law,

our standard of review is de novo, and our scope of review is plenary.”

Commonwealth v. J., 916 A.2d 511, 521 (Pa. 2007). Additionally, we “are

not bound by the rationale of the trial court, and may affirm on any basis.”

In re Jacobs, 15 A.3d 509, 509 (Pa. Super. 2011).

The bulk of Appellant’s brief focuses on why his claims are cognizable in

a habeas petition, that his PCRA petition was timely, or that he meets an

exception to the PCRA’s timeliness requirements. Very little effort is given in

his brief to discussing the merits of those underlying claims. Nevertheless,

those issues were set forth in his Amended PCRA petition. Appellant does not

distinguish between the claims he sought to raise in his PCRA petition and the

claims he sought to raise in his habeas petition; indeed, it is clear the claims

are identical. Moreover, Appellant stated in his amended PCRA Petition that

there are no

disputed issues of fact which would require an evidentiary hearing
on the questions of law raised in this Amended Petition. Counsel
believes that all issues raised herein may be decided as a matter

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of law based on the established and otherwise indisputable facts
of record. Accordingly, [Appellant] is not requesting an
evidentiary hearing pursuant to Rule of Criminal Procedure
902(A)(15).

Appellant’s Amended PCRA Petition and/or Petition for Writ of Habeas Corpus,

2/21/19, at 9 ¶ 40. Thus, the issues raised in Appellant’s habeas petition are

pure questions of law.

In his amended Petition, Appellant argued that his RNC requirements

under Subchapter I constitute an ex post facto violation. He acknowledged

that Act 10 created Subchapter I to address that constitutional deficiency of

the pre-Act 10 RNC requirements at issue in Muniz, but argued that the

“similarities between the [pre-Act 10] SORNA scheme of sex offender

registration and Subchapter I are remarkable, and the modest differences are

not sufficiently meaningful to distinguish Subchapter I from SORNA for

purposes of ex post facto analysis.” Brief in Support of Amended PCRA Petition

and/or Petition for Writ of Habeas Corpus, 2/21/19, at 15.

This was precisely the issue addressed by our Supreme Court in

Lacombe, which held that “Subchapter I does not constitute criminal

punishment” and, therefore, does not implicate the ex post facto clauses of

the state or federal constitutions. Lacombe, 2020 WL 4148262 at *18.

Accordingly, Appellant is not entitled to relief on that claim.

Appellant also argued below that the imposition of Subchapter I’s RNC

requirements constitutes a double-jeopardy violation under the federal and/or

state constitutions, because the “enactment of Subchapter I on February 21,

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2018[,] effectively created a new criminal penalty or punishment for the

offenses he committed many years ago.” Brief in Support of Amended PCRA

Petition and/or Petition for Writ of Habeas Corpus at 22. This issue was also

effectively decided by Lacombe when the Supreme Court determined that the

RNC requirements of Subchapter I are non-punitive. Because Subchapter I

does not impose a new criminal punishment, Appellant’s double-jeopardy

rights are not affected by Subchapter I of SORNA. See Kansas v. Hendricks,

521 U.S. 346, 369 (1997) (“Our conclusion that the Act is non[-]punitive thus

removes an essential prerequisite for both Hendricks’ double jeopardy and ex

post facto claims.”).

Appellant further argues that the double jeopardy clause of the

Pennsylvania Constitution provides greater protection than its federal

counterpart, citing Commonwealth v. Kearns, 70 A.3d 881, 884 (Pa. Super.

2013). The Kearns decision references our Supreme Court’s holding that:

[T]he double jeopardy clause of the Pennsylvania Constitution
prohibits retrial of a defendant not only when prosecutorial
misconduct is intended to provoke the defendant into moving for
a mistrial, but also when the conduct of the prosecutor is
intentionally undertaken to prejudice the defendant to the point
of the denial of a fair trial.

Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992).

Here, the imposition of Subchapter I’s RNC requirements on Appellant

does not involve, and is in no way analogous to, the additional double-

jeopardy protections provided by the Pennsylvania Constitution with regard to

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issues involving prosecutorial misconduct at trial. Accordingly, Appellant is

not entitled to additional relief under the Pennsylvania Constitution.

In sum, Appellant is not entitled to relief on the merits of any of his

constitutional claims challenging Subchapter I’s RNC requirements, even

though the lower court erroneously determined that he was not able to raise

those claims in his habeas petition. Thus, we affirm the order denying

Appellant’s habeas petition, albeit on alternative grounds than those provided

by the lower court.

Order denying Appellant’s PCRA and habeas petitions affirmed.

Judge Musmanno joins this memorandum.

Judge McLaughlin concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/29/2020

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