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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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 Super. 2007) (unpublished memorandum).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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