J-S30010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

                                                  IN THE SUPERIOR COURT
    COMMONWEALTH OF PENNSYLVANIA,                           OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    TIMOTHY SMITH,

                             Appellant                No. 973 WDA 2017


              Appeal from the PCRA Order Entered May 31, 2017
               In the Court of Common Pleas of Jefferson County
              Criminal Division at No(s): CP-33-CR-0000083-2009


    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    TIMOTHY SMITH,

                             Appellant               No. 1419 WDA 2017


            Appeal from the PCRA Order Entered September 5, 2017
               In the Court of Common Pleas of Jefferson County
              Criminal Division at No(s): CP-33-CR-0000083-2009


BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED AUGUST 24, 2018

        Timothy Smith appeals from the May 31, 2017 order denying, as an

untimely petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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9541-9546, his “Petition for Writ of Habeas Corpus or Coram Nobis”

(hereinafter, “coram nobis petition”). Appellant has also filed an appeal from

the court’s September 5, 2017 order which held in abeyance a second, pro se

PCRA petition that Appellant filed during the pendency of his appeal from the

May 31, 2017 order.1 After careful review, we affirm the court’s May 31, 2017

order, and quash the appeal from its September 5, 2017 order.

       This Court previously summarized the facts and procedural history of

Appellant’s case, as follows:
             Appellant was arrested on January 5, 2009, and charged
       with various offenses after his step-daughter, C.P., alleged that
       he had sexually abused her beginning when she was eight years
       old and continuing until she was approximately thirteen years old.
       Appellant proceeded to a jury trial on October 5 and 6, 2009, at
       the close of which the jury convicted him of 23 counts of
       aggravated indecent assault, 29 counts of indecent assault
       (person less than 13 years of age), and 26 counts of endangering
       the welfare of children. The trial court subsequently sentenced
       Appellant to an aggregate term of 24 years, 8 months, and one
       day to 76 years’ incarceration. Appellant was also determined to
       be a sexually violent predator for Megan’s Law purposes.
       Appellant timely appealed from his judgment of sentence and, on
       September 13, 2011, we affirmed. Commonwealth v. Smith,
       34 A.3d 225 (Pa. Super. 2011) (unpublished memorandum).
       Appellant did not file a petition for allowance of appeal with our
       Supreme Court.

              On October 9, 2012, Appellant filed a timely, counseled
       PCRA petition alleging, inter alia, the ineffective assistance of his
       trial counsel, David S. Shrager, Esq. A PCRA hearing was
       conducted on May 23, 2013, at which Appellant and Attorney
       Shrager both testified. On December 30, 2013, the PCRA court
       issued an opinion and order denying Appellant’s petition.

____________________________________________


1Appellant filed with this Court a request to consolidate his two appeals, which
we granted by per curiam order on November 29, 2017.

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Commonwealth v. Smith, No. 198 WDA 2014, unpublished memorandum

at 1-2 (Pa. Super. filed March 31, 2015). Appellant filed a timely appeal from

the PCRA court’s decision, and this Court affirmed. See id. Appellant then

filed a petition for allowance of appeal with our Supreme Court, which the

Court denied on November 4, 2015. See Commonwealth v. Smith, 125

A.3d 1201 (Pa. 2015).

      On April 24, 2017, Appellant filed the coram nobis petition underlying

the present appeal. Therein, he asserted that Attorney Shrager had “testified

inaccurately” during the May 23, 2013 PCRA hearing.       Petition for Writ of

Habeas Corpus or Coram Nobis, 4/24/17, at 3 (unnumbered).           Appellant

vaguely claimed that he uncovered Attorney Shrager’s allegedly inaccurate

testimony at some unidentified point after the court had denied his October

9, 2012 PCRA petition.    Id.   Appellant neither specified what ‘inaccurate’

testimony Attorney Shrager purportedly offered at the PCRA hearing, nor how

that testimony had impacted the PCRA court’s decision.       He also did not

identify how, or precisely when, he had discovered this information. In regard

to what relief Appellant sought, he asked that the court permit him to amend

his coram nobis petition, submit a witness affidavit from an individual named

Erin Melegari, and schedule a hearing on his petition.

      The trial court deemed Appellant’s coram nobis petition as a PCRA

petition. On April 28, 2017, the court issued a Pa.R.Crim.P. 907 notice of its

intent to dismiss the petition as being untimely filed.     Appellant filed a

response on May 22, 2017. On May 31, 2017, the PCRA court issued an order

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dismissing Appellant’s petition. Appellant filed a timely notice of appeal, and

he also complied with the court’s order to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. The court issued a Rule 1925(a)

opinion on July 31, 2017.

      While that appeal was pending in this Court, Appellant filed a pro se

PCRA petition on August 25, 2017, arguing that his designation as a sexually

violent predator (SVP) is illegal under our Supreme Court’s decision in

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), cert. denied, 138 S.Ct.

295 (2018) (holding that the registration provisions of the Sexual Offender

Registration and Notification Act (SORNA) are punitive and, therefore, cannot

be retroactively applied to a defendant whose crimes were committed prior to

SORNA’s effective date). On September 5, 2017, the PCRA court issued an

order stating that Appellant’s petition was being held in abeyance until his

appeal from the May 31, 2017 order became final. The order did not address

the underlying merits of Appellant’s SVP challenge.          Nevertheless, on

September 25, 2017, Appellant filed a pro se notice of appeal from that order.

The court ordered Appellant to file a Rule 1925(b) statement, and Appellant,

still acting pro se, timely complied. On October 18, 2017, the court issued an

opinion in which it addressed, and rejected, the merits of Appellant’s challenge

to his SVP designation.

      As stated supra, we consolidated Appellant’s two appeals. Herein, he

raises two issues for our review:




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      1) Did the lower court err by disregarding the petition’s title of a
         request for habeas corpus or coram nobis relief and dismissing
         the petition as an untimely PCRA action since [Appellant’s]
         claim is not one that is eligible for relief under 42 Pa.C.S. §
         9543?

      2) Did the lower court err by determining that [Appellant] was not
         eligible to have his [SVP] status retracted under … Muniz?

Appellant’s Brief at 7.

      In Appellant’s first issue, he contends that the court erred by treating

his coram nobis petition as a PCRA petition. According to Appellant, the “crux

of this action … alleges that there was an irregularity in the PCRA hearing[,]”

where Attorney Shrager’s testimony was “untruthful or otherwise grossly

inaccurate….” Appellant’s Brief at 15, 16 (footnote and citations to the record

omitted). Appellant contends that this claim is not cognizable under the PCRA,

thus making him “eligible for habeas corpus or coram nobis relief….” Id. at

17.

      Appellant’s argument is unconvincing.      Appellant is effectively asking

this Court to reopen his prior PCRA action so he can re-litigate the underlying

ineffectiveness claims against Attorney Shrager. Regardless of why he claims

such relief is warranted, his claim boils down to an assertion of ineffective

assistance of counsel, which is indisputably a cognizable claim under the

PCRA. See 42 Pa.C.S. § 9543(a)(2)(ii). Appellant himself concedes this point,

stating that his “ultimate complaint is that his trial counsel was ineffective….”

Appellant’s Brief at 15.   Consequently, the trial court properly treated his

present petition as a PCRA petition. Because that petition is untimely under



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42 Pa.C.S. § 9545(b)(1) (requiring that any PCRA petition be filed within one

year of the date on which Appellant’s judgment of sentence becomes final),

and Appellant does not identify any applicable timeliness exception under 42

Pa.C.S. § 9545(b)(1)(i)-(iii), we discern no error by the PCRA court in its

denial of his petition.2

       In Appellant’s next issue, he claims that his SVP designation is illegal

under Muniz, and this Court’s more recent decision in Commonwealth v.

Butler, 173 A.3d 1212 (Pa. Super. 2017) (holding that SORNA’s provision

directing a trial court to determine, by a preponderance of the evidence,




____________________________________________


2 Even if the claim raised in Appellant’s coram nobis petition is not cognizable
under the PCRA, we would still conclude that the court did not err in denying
him relief. In Commonwealth v. Mangini, 386 A.2d 482 (Pa. 1978), our
Supreme Court stated that the remedy of coram nobis is “generally regarded
as an extraordinary one.” Id. at 490. “[T]he granting of a petition for such
extraordinary relief is not proper unless the extrinsic facts were not only not
discovered at the time of trial, but also not discoverable by the petitioner at
such time by the exercise of due diligence.” Id. Here, as noted supra,
Appellant did not explain in his coram nobis petition how, or when, he
discovered Attorney Shrager’s inaccurate testimony; thus, he failed to
demonstrate that he acted with due diligence in ascertaining this information.

       We also point out that Appellant first raised this issue about Attorney
Shrager’s incorrect testimony in a motion for reconsideration filed with this
Court on April 14, 2015. He reiterated that claim in his petition for allowance
of appeal filed with our Supreme Court, which was denied on November 4,
2015. Appellant then waited nearly a year-and-a-half to file his coram nobis
petition. He offers no explanation for this delay. For these reasons, we would
conclude the court did not err in denying his petition, even if it should not
have been treated as a PCRA petition.



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whether a defendant is an SVP is unconstitutional under Muniz and Alleyne

v. United States, 133 S.Ct. 2151 (2013)).

      Before we may address the merits of Appellant’s legality of sentence

claim, we must first determine if we have jurisdiction over his appeal from the

PCRA court’s September 5, 2017 order.        Commonwealth v. Fowler, 930

A.2d 586, 592 (Pa. Super. 2007) (“[A] court may entertain a challenge to the

legality of the sentence so long as the court has jurisdiction to hear the

claim.”). As set forth in Pennsylvania Rule of Appellate Procedure 341,

      (a) General Rule.--Except as prescribed in paragraphs (d) and
      (e) of this rule, an appeal may be taken as of right from any final
      order of a government unit or trial court.

      (b) Definition of Final Order.--A final order is any order that:

      (1) disposes of all claims and of all parties; or

      (2) RESCINDED

      (3) is entered as a final order pursuant to paragraph (c) of this
      rule.

Pa.R.A.P. 341.

      In the present case, the PCRA court’s September 5, 2017 order did not

dispose of the claim raised in Appellant’s petition; instead, the order held any

decision on that claim in abeyance until Appellant’s appeal from the court’s

May 31, 2017 order was finalized. Moreover, the court did not state that the

order was final and appealable. Accordingly, we conclude that the September

5, 2017 order is not final and appealable. Thus, we quash Appellant’s appeal

at docket number 1419 WDA 2017.




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     Order appealed at docket number 973 WDA 2017 affirmed. Appeal at

docket number 1419 WDA 2017 quashed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/2018




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