J-S21039-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                        Appellee         :
                                         :
                   v.                    :
                                         :
JAY VAL YUNIK,                           :
                                         :
                        Appellant        :    No. 1531 WDA 2016

              Appeal from the PCRA Order September 1, 2016
             in the Court of Common Pleas of Crawford County
            Criminal Division at No(s): CP-20-CR-0001000-1999

BEFORE: LAZARUS, DUBOW, AND STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                         FILED MAY 30, 2017

      Jay Val Yunik (Appellant) appeals from the September 1, 2016 order

dismissing his petition for writ of coram nobis. We affirm.

      As we write for the parties only, a full recounting of the procedural

history is not necessary.   On June 6, 2000, Appellant pled guilty to one

count of rape. On August 29, 2000, Appellant was sentenced to 54 to 180

months’ imprisonment.     Appellant did not file a direct appeal.   During his

imprisonment, Appellant filed PCRA petitions in 2001, 2005, 2006, 2007,

and 2011, all of which were dismissed.

      On July 28, 2016, Appellant, through counsel, filed a petition for writ

of coram nobis challenging his conviction.    On August 3, 2016, the PCRA

court issued notice that it was construing his petition as if filed pursuant to

the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, and it


*Retired Senior Judge assigned to the Superior Court.
J-S21039-17


intended to dismiss the petition without a hearing. Memorandum and Order,

8/3/2016, at 1-2.     After considering Appellant’s response, the PCRA court

dismissed his petition on September 1, 2016, explaining that Appellant was

not eligible for relief because he had completed his sentence and he had

previously litigated the allegations in prior PCRA petitions dismissed as

untimely filed. Id. at 2; Order, 9/1/2016, at 1-2. Appellant timely filed a

notice of appeal. Both Appellant and the PCRA court complied with Pa.R.A.P.

1925.

        On appeal, Appellant asks this Court to determine whether the PCRA

court erred by considering Appellant’s petition for writ of coram nobis as if

filed under the PCRA and dismissing the petition because Appellant is no

longer serving his sentence. Appellant’s Brief at 2.

        In determining whether      the   PCRA   court properly   characterized

Appellant’s petition as a PCRA petition, we observe the following.

        The current version of Pennsylvania’s [PCRA] explicitly states
        that it shall be the sole means of obtaining collateral relief and
        that its provisions encompass[ ] all other common law and
        statutory remedies for the same purpose that exist when this
        subchapter takes effect, including habeas corpus and coram
        nobis. Under the plain words of the statute, if the underlying
        substantive claim is one that could potentially be remedied
        under the PCRA, that claim is exclusive to the PCRA. It is only
        where the PCRA does not encompass a claim that other collateral
        procedures are available.

Commonwealth v. Pagan, 864 A.2d 1231, 1232–33 (Pa. Super. 2004)

(emphasis added) (internal citations and quotation marks omitted).




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        Here, Appellant contended he was eligible for a writ of coram nobis

because (1) “forensic evidence, not admitted at trial, indicated that testing

for seminal fluid and hair on the alleged victim and/or her clothing ‘yielded

no results,’” and (2) “the alleged victim has recanted and … the [c]ourt, the

Crawford County DA’s office, and various counsel were made aware of this

by letter.”     Petition for Writ of Coram Nobis, 7/28/2016, at ¶¶ 7-8.

Appellant alleged that these facts constituted “exculpatory evidence … not

revealed to him or … admitted at trial.”       Response to Notice of Intent to

Dismiss Petition, 8/29/2016, at ¶ 5.      It is unclear why Appellant pled his

claim in this manner, as he pled guilty and did not have a trial. However, it

appears that Appellant also was attempting to claim that his counsel’s

concealment of this exculpatory evidence unlawfully induced his guilty plea.

Petition for Writ of Coram Nobis, 7/28/2016, at ¶ 6.

        To the extent Appellant presents a claim of availability of exculpatory

evidence, which was unavailable at the time of his guilty plea and which

would have changed the outcome of the proceeding if it had been

introduced, such claim is cognizable under the PCRA.           See 42 Pa.C.S. §

9543 (a)(2)(vi).     Likewise, to the extent Appellant presents a claim of

innocence and unlawful inducement of a guilty plea under circumstances that

made it likely that the inducement caused him to plead guilty, such claim is

cognizable under the PCRA. Id. at § 9543(a)(2)(iii). Accordingly, the PCRA

court    properly   considered   Appellant’s   petition   as   a   PCRA   petition.



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

collateral petition that raises an issue that the PCRA statute could remedy is

to be considered a PCRA petition[.]”).

      Because Appellant’s judgment of sentence became final in 2000, the

PCRA court had no jurisdiction to entertain Appellant’s petition unless one or

more of the three statutory exceptions to the time bar applied. 42 Pa.C.S. §

9545(b)(1); Commonwealth v. Taylor, 933 A.2d 1035, 1038 (Pa. Super.

2007) (holding that the PCRA’s “[s]tatutory time restrictions are mandatory

and jurisdictional in nature, and may not be altered or disregarded to reach

the merits of the claims raised in the petition”).        None of the three

exceptions was applicable, including the newly-discovered facts exception.

To satisfy that exception, the petitioner must plead and prove facts that

were unknown to him and could not have been ascertained by the exercise

of due diligence. See 42 Pa.C.S. § 9545(b)(2)(ii). Any petition invoking an

exception to the jurisdictional time-bar must “be filed within 60 days of the

date the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).

      Although Appellant’s petition refers to a forensic test allegedly proving

his innocence and a letter allegedly describing the victim’s recanting, the

petition omits the date of Appellant’s discovery of these facts. It is apparent

that Appellant has known about both the forensic report and the letter for

more than sixty days prior to filing the 2016 petition, as Appellant’s 2005,

2006, and 2011 PCRA petitions all include averments regarding the forensic



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report and letter.   PCRA Petition, 9/9/2005, at 5, 8, 10; PCRA Petition,

2/21/2006, at 2; PCRA Petition, 9/12/2011, at 2-4.        Appellant’s 2005 and

2006 PCRA petitions even attach the forensic report to the petitions. Thus,

Appellant’s 2016 petition fails to overcome the jurisdictional time-bar.

      In addition, Appellant is not eligible for PCRA relief because he is no

longer serving his sentence, even if he is still subject to continuing collateral

consequences imposed by the Sex Offender Registration and Notification Act

(SORNA).     See 42 Pa.C.S. § 9543(a)(1); Commonwealth v. Turner, 80

A.3d 754, 766 (Pa. 2013) (“[T]he General Assembly, through the PCRA,

excluded from collateral review those individuals who were no longer subject

to a state sentence….”); Commonwealth v. Williams, 977 A.2d 1174,

1175 (Pa. Super. 2009) (“Appellant is not eligible for PCRA relief, despite the

requirement that he register under Megan's Law II, [42 Pa.C.S. §§ 9791–

9799.7,] because he is not serving a sentence of incarceration, probation, or

parole.”)1

      Appellant contends that, even though he is no longer serving a

sentence, the newly-discovered forensic report and letter warrant coram

nobis relief because the facts were unknown to Appellant while he was

serving his sentence, precluding him from prevailing on a PCRA petition.


1
  As with SORNA, Megan’s Law II required individuals who committed certain
sexual offenses to comply with non-punitive registration, notification, and
counseling requirements. Commonwealth v. Price, 876 A.2d 988, 992
(Pa. Super. 2005); Commonwealth v. Perez, 97 A.3d 747, 758 (Pa.
Super. 2014).


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Appellant’s Brief at 7, 9. As described above, Appellant was aware of the

report   and   letter   during   his   incarceration.     Moreover,    Appellant

acknowledges that our Supreme Court has held that when a petitioner’s

claim is cognizable under the PCRA, the PCRA is the exclusive method by

which the petitioner may obtain relief, even if a petitioner’s particular claim

lacked merit. Commonwealth v. Descardes, 136 A.3d 493, 502-03 (Pa.

2016). We are bound by our Supreme Court’s ruling on this issue.

      Accordingly, the trial court did not err in denying Appellant’s petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/30/2017




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