Com. v. Hann, D.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DUANE JOSEPH HANN, SR., : No. 213 WDA 2019
:
Appellant :

Appeal from the PCRA Order Entered January 10, 2019,
in the Court of Common Pleas of Bedford County
Criminal Division at No. CP-05-CR-0000030-2009

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DUANE JOSEPH HANN, SR., : No. 214 WDA 2019
:
Appellant :

Appeal from the PCRA Order Entered January 10, 2019,
in the Court of Common Pleas of Bedford County
Criminal Division at No. CP-05-CR-0000213-2010

BEFORE: SHOGAN, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E: FILED NOVEMBER 23, 2020

Duane Joseph Hann, Sr., appeals from the January 10, 2019 order

dismissing as untimely his petition filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
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The relevant procedural history of this case, as gleaned from the

certified record, is as follows: Appellant pled nolo contendere to one count

of rape of a child,1 at CP-05-CR-0000030-2009, and nolo contendere to four

counts of rape of a child and one count of aggravated indecent assault of a

child,2 at CP-05-CR-0000213-2010. Sentencing was deferred pending an

evaluation by the Sexual Offenders Assessment Board to determine whether

appellant met the criteria for a sexually violent predator (“SVP”), pursuant to

Megan’s Law III.3 On May 18, 2011, the trial court sentenced appellant to an

aggregate term of 10 to 25 years’ imprisonment, followed by 10 years’

probation. That same day, the trial court held a hearing and classified

appellant as an SVP. Appellant did not file a direct appeal.

1 18 Pa.C.S.A. § 3121(c).

2 18 Pa.C.S.A. §§ 3121(c) and 3125(b), respectively.

3 We note that Megan’s Law III, 42 Pa.C.S.A. §§ 9791–9799.9, was replaced
by the Sexual Offender Registration and Notification Act (“SORNA”),
42 Pa.C.S.A. §§ 9799.10-9799.41, which became effective December 12,
2012. On February 21, 2018, 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.A. §§ 9799.42 and 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.A.
§§ 9799.51-9799.75. Significantly, Subchapter I also includes a new
“failure to register” provision for individuals who committed their offenses
during this period. See 18 Pa.C.S.A. § 4915.2(f)(1).

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On January 12, 2018, appellant filed a pro se PCRA petition, and

counsel was appointed to represent him. On May 30, 2018, counsel filed an

amended PCRA petition on appellant’s behalf, challenging his designation as

an SVP. We note that appellant has not been charged with any registration

violation and is currently serving his May 18, 2011 judgment of sentence.

Following an evidentiary hearing, the PCRA court dismissed appellant’s

petition as untimely on January 10, 2019. Thereafter, counsel filed separate,

timely notices of appeal on appellant’s behalf at CP-05-CR-0000030-2009 and

CP-05-CR-0000213-2010, listing both docket numbers on each.4

Prior to consideration of the merits of this appeal, we must first address

whether appellant’s notices of appeal complied with the requirements set forth

in the Pennsylvania Rules of Appellate Procedure and Commonwealth v.

Walker, 185 A.3d 969 (Pa. 2018). In Walker, our supreme court provided

a bright-line mandate requiring that “where a single order resolves issues

arising on more than one docket, separate notices of appeal must be filed for

each case,” or the appeal will be quashed. Id. at 971, 976-977. The Walker

court applied its holding prospectively to any notices of appeal filed after

June 1, 2018. In the instant case, appellant filed separate notices of appeal

at each docket number in February 2019, and therefore, the Walker mandate

applies. Appellant’s appeals were of a single order resolving issues arising on

4 Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

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both docket numbers. A review of the record demonstrates that the notices

of appeal listed both docket numbers – CP-05-CR-0000030-2009 and

CP-05-CR-0000213-2010 – in their respective captions. A recent en banc

panel of this court held that such a practice does not invalidate appellant’s

separate notices of appeal. Commonwealth v. Johnson, A.3d ,

2020 WL 3869723 at *12 (Pa.Super. July 9, 2020) (en banc) (overruling the

pronouncement in Commonwealth v. Creese, 216 A.3d 1142, 1144

(Pa.Super. 2019), that “a notice of appeal may contain only one docket

number”). Accordingly, we shall consider appellant’s claims on appeal.

Appellant raises the following issues for our review:

1. Is [appellant] entitled to relief on a motion to
correct illegal sentence[] from his designation
as [an SVP] under Megan’s Law III?

2. Is [appellant] entitled to relief on a [PCRA
petition] from his designation as [an SVP] under
Megan’s Law III?

3. Is [appellant] entitled to relief on a petition for
habeas corpus[] from his designation as [an
SVP] under Megan’s Law III?

Appellant’s brief at 4 (bolding and italics added; extraneous capitalization

omitted).

Before we can determine whether we have jurisdiction to entertain the

merits of appellant’s claims, we must determine whether the PCRA court

properly treated appellant’s amended petition as a PCRA petition. Appellant

styled his petition as an “Amended Petition for Post-Conviction Relief and/or

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Habeas Corpus Relief and/or Motion to Correct Illegal Sentence,” and

contends that even if this court finds that he is not entitled to relief under the

PCRA, he “could be granted relief via his Motion to Correct Illegal Sentence

. . . and alternatively, his Petition for Habeas Corpus.” (Appellant’s brief at

8.) We disagree.

“[T]he 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.”

Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa.Super. 2013) (citations

omitted); see also 42 Pa.C.S.A. § 9542. It is well settled that challenges to

the legality of a sentence are cognizable under the PCRA. See

Commonwealth v. Jones, 932 A.2d 179, 182-183 (Pa.Super. 2007).

Likewise, the proposition that SVP designations and registration requirements

are civil collateral consequences of a plea and, therefore, not cognizable under

the PCRA, is no longer the applicable law in this Commonwealth. In

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied, ___

U.S. , 138 S. Ct. 925 (2018),5 our supreme court held that the registration

requirements of SORNA are punitive in nature and part of the sentence. Id.

at 1193. As this court has explained: “[i]n light of our Supreme Court’s

5 We note that Muniz was superseded by statute as stated in
Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020), which was decided
July 21, 2020.

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announcement in Muniz, we are constrained to hold that SORNA’s registration

requirements are no longer merely a collateral consequence, but rather

punishment. Commonwealth v. Hart, 174 A.3d 660, 667 (Pa.Super. 2017).

Following Muniz, it is clear that challenges to SVP designations are cognizable

under the PCRA. In reaching this decision, we are mindful that Muniz did not

specifically address a claim challenging an SVP designation under the

pre-SORNA sexual offender statute in effect at the time of appellant’s

sentencing. Nonetheless, where, as here, the PCRA provides a viable means

of obtaining relief, it “encompasses all other common law and statutory

remedies for the same purpose . . . including habeas corpus and

coram nobis.” Commonwealth v. Descardes, 136 A.3d 493, 496-497 (Pa.

2016). Accordingly, we conclude that the trial court properly treated

appellant’s amended petition as a PCRA petition.

Our standard of review of an order dismissing a petition under the PCRA

is “whether the PCRA court’s determination is supported by the record and

free of legal error.” Commonwealth v. Miller, 102 A.3d 988, 992 (Pa.Super.

2014) (citation omitted). “The PCRA court’s findings will not be disturbed

unless there is no support for the findings in the certified record.”

Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014) (citations

omitted). “This Court grants great deference to the findings of the PCRA court,

and we will not disturb those findings merely because the record could support

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a contrary holding.” Commonwealth v. Hickman, 799 A.2d 136, 140

(Pa.Super. 2002) (citation omitted).

We first address the timeliness of appellant’s PCRA petition because it

implicates the jurisdiction of this court and the PCRA court. Commonwealth

v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014) (citation omitted). All PCRA

petitions, including second and subsequent petitions, must be filed within one

year of when an appellant’s judgment of sentence becomes final. See

42 Pa.C.S.A. § 9545(b)(1). “[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.” 42 Pa.C.S.A. § 9545(b)(3).

Here, the record reveals that appellant’s judgment of sentence became

final on June 18, 2011, 30 days after the trial court sentenced him and the

deadline for filing a direct appeal with this court expired. See id.;

Pa.R.A.P. 903(a). Accordingly, appellant had until June 18, 2012 to file a

timely PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). Appellant’s petition

was filed on January 12, 2018, more than 5 years after his judgment of

sentence became final, and is patently untimely. Accordingly, appellant was

required to plead and prove that one of the three statutory exceptions

enumerated in Section 9545(b)(1) applies.

The three statutory exceptions to the PCRA time-bar are as follows:

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(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.A. § 9545(b)(1)(i-iii). A petition invoking any of these exceptions

must be filed “within one year of the date the claim could have been

presented.” 42 Pa.C.S.A. § 9545(b)(2).

Our review indicates that appellant has failed to meet this burden. The

crux of appellant’s argument is that his designation as an SVP renders his

sentence illegal, pursuant to our supreme court’s holding in Muniz and this

court’s subsequent decisions in Commonwealth v. Butler, 173 A.3d 1212

(Pa.Super. 2017), reversed, 226 A.3d 972 (Pa. 2020), and Commonwealth

v. Rivera-Figueroa, 174 A.3d 674, 678 (Pa.Super. 2017). (See appellant’s

brief at 8-15.) However, in challenging his SVP designation, appellant has

failed to specifically invoke any of the three statutory exceptions to the

one-year jurisdictional time-bar. On the contrary, appellant’s brief makes no

argument whatsoever with respect to timeliness of his petition and does not

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even cite Section § 9545(b)(1). Accordingly, we lack jurisdiction to review

the merits of any of the claims appellant raised in his untimely petition. See

Commonwealth v. Callahan, 101 A.3d 118, 123 (Pa.Super. 2014) (holding,

if a PCRA petition is untimely on its face, or fails to meet one of the three

statutory exceptions to the time-bar, we lack jurisdiction to review it).

In reaching this decision, we recognize that appellant’s challenge is to

the legality of a sentence, which is cognizable under the PCRA. See Jones,

932 A.2d at 183. However,

a court may entertain a challenge to the legality of the
sentence so long as the court has jurisdiction to
hear the claim. In the PCRA context, jurisdiction is
tied to the filing of a timely PCRA petition. Although
legality of sentence is always subject to review within
the PCRA, claims must still first satisfy the
PCRA’s time limits or one of the exceptions
thereto.

Commonwealth v. Infante, 63 A.3d 358, 365 (Pa.Super. 2013) (internal

citations, quotation marks, and brackets omitted; emphasis added). As noted,

appellant has failed to do so.

Alternatively, even if appellant’s claim was properly raised under the

PCRA, it would merit no relief. As discussed, the Muniz court found SORNA

to be punitive in nature and held that the retroactive application of the

registration and reporting requirements therein violated the ex post facto

clauses of the United States and Pennsylvania Constitutions. Id. at 1219-

1223. Thereafter, a panel of this court decided Butler (“Butler I”). In that

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case, the appellant challenged his SVP designation on direct appeal. The

Butler I court held that the provision of SORNA requiring a court to designate

a defendant an SVP by clear and convincing evidence violates the federal and

state constitutions because it increases a defendant’s criminal penalty without

the fact-finder making necessary factual findings beyond a reasonable doubt.

Butler I, 173 A.3d at 1218.

While appellant’s appeal was pending, however, our supreme court

reversed Butler I on March 26, 2020 (“Butler II”). In Butler II, our

supreme court held that “the procedure for designating individuals as SVPs

under Section 9799.24(e)(3) [of SORNA] is not subject to the requirements

[Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United

States, 570 U.S. 99 (2013),] and remains constitutionally permissible.”

Butler II, 226 A.3d at 976. The Butler II court explained:

Although we recognize the [registration, notification,
and counseling] 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 these circumstances,
and also because we do not find the [registration,
notification, and counseling] requirements to be
excessive in light of the heightened public safety

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concerns attendant to SVPs, we conclude the
[registration, notification, and counseling]
requirements do not constitute criminal punishment.

Id. at 992.

Instantly, in light of our supreme court’s recent decision in Butler II,

we conclude that because an SVP adjudication is not criminal punishment,

appellant’s designation as an SVP under SORNA does not constitute reversible

error.6

Accordingly, we find that the PCRA court properly dismissed appellant’s

petition as untimely and affirm its January 10, 2019 order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/23/2020

6 We further note the Rivera-Figueroa decision cited by appellant is
inapplicable. In Rivera-Figueroa, a panel of this court held that in the
context of a timely filed PCRA petition, “Muniz created a substantive rule
that retroactively applies in the collateral context.” Rivera-Figueroa, 174
A.3d at 678. This matter, however, is clearly distinguishable because
appellant’s PCRA petition was patently untimely.

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