J-S41025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

MICHAEL MOSES DURANT

                            Appellant                    No. 1568 MDA 2014


               Appeal from the PCRA Order September 11, 2014
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0001191-2012


BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                              FILED AUGUST 14, 2015

        Michael Moses Durant appeals from the order entered in the Court of

Common Pleas of Luzerne County, dismissing his petition filed pursuant to

the Post Conviction Relief Act (PCRA).1 Upon review, we affirm.

        Durant entered a guilty plea before the Honorable Fred A. Pierantoni to

one count of failure to comply with registration of sexual offenders

requirements2 on October 29, 2012.             Durant was sentenced on December


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*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa. C.S. §§ 9541-9546.
2
  S.B. 92, P.N. 1995 (2004), § 1, as enacted, 18 Pa.C.S. § 4915 (repealed
2013). This is a provision of what was known as “Megan’s Law III,” now
known as the Sex Offender Registration and Notification Act, which requires
registration of sexual offenders.
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19, 2012 to 36 to 72 months’ incarceration followed by six months’

probation; he did not file a direct appeal.

      Durant filed a counseled PCRA petition on May 12, 2014 and amended

the petition on July 18, 2014. Following a hearing on the matter, the trial

court denied Durant’s petition on September 11, 2014. The instant appeal

was timely filed on September 17, 2014.        As directed by the trial court,

Durant filed a concise statement of matters complained of on appeal on

September 30, 2014.

      On appeal, Durant raises one issue:

      Whether the [trial c]ourt erred in denying [Durant’s] [PCRA
      petition] where [Durant] is currently serving an illegal sentence
      and is incarcerated in violation of the due process clause of both
      the Constitution of the United States and the Constitution of the
      Commonwealth of Pennsylvania[.]

Brief of Appellant, at 2.

      Our standard and scope of review for the denial of a PCRA petition is

well-settled.   We review the PCRA court’s findings of fact to determine

whether they are supported by the record, and review its conclusions of law

to determine whether they are free from legal error.       Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014). The scope of our review is limited to

the findings of the PCRA court and the evidence of record, viewed in the light

most favorable to the prevailing party at the trial level. Id.

      Before we may consider the merits of Durant’s claims, we must

consider whether this appeal is properly before us.



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      A PCRA petition, including a second or subsequent one, must be
      filed within one year of the date the petitioner’s judgment of
      sentence became final, unless he pleads and proves one of the
      three exceptions outlined in 42 Pa.C.S. § 9545(b)(1).           A
      judgment becomes final at the conclusion of direct review by
      [the Pennsylvania Supreme] Court or the United States Supreme
      Court, or at the expiration of the time for seeking such review.
      42 Pa.C.S. § 9545(b)(3). The PCRA’s timeliness requirements
      are jurisdictional; therefore, a court may not address the merits
      of the issues raised if the petition was not timely filed. The
      timeliness requirements apply to all PCRA petitions, regardless of
      the nature of the individual claims raised therein. The PCRA
      squarely places upon the petitioner the burden of proving an
      untimely petition fits within one of the three exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (citations and

footnote omitted). Although the legality of a sentence may always be raised

under the PCRA, such “claims must still first satisfy the PCRA’s time limits or

one of the exceptions thereto.”   Commonwealth v. Fahy, 737 A.2d 214,

223 (Pa. 1999).

      Durant was sentenced on December 19, 2012, and did not file a direct

appeal. Thus, Durant’s judgment of sentence became final on January 18,

2013, when his time to file a notice of appeal to this Court expired.      See

Pa.R.A.P. 903. Durant had one year from that date to file a PCRA petition,

specifically, until January 18, 2014. However, Durant filed the instant PCRA

petition on May 12, 2014, and amended the petition on July 18, 2014, such

that the PCRA petition is untimely on its face. Thus, the PCRA court lacked

jurisdiction to review the PCRA petition unless Durant pleaded and proved

one of the statutory exceptions to the time-bar.




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      The three statutory exceptions for an untimely petition under the PCRA

consist of the following:

      (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. § 9545(b)(1)(i)-(iii). Additionally, a petition invoking a timeliness

exception pursuant to the statute must “be filed within 60 days of the date

the claim could have been presented.” Id. at § 9545(b)(2).

      Durant’s claim invokes the newly-recognized constitutional right

exception in section 9545(b)(1)(iii); Durant bases his claim upon the holding

in Commonwealth v. Neiman, 84 A.3d 603 (Pa. 2013), filed on December

16, 2013.   Neiman held that legislation amending Megan’s Law, including

the provision under which Durant pled guilty, violated the single subject rule

in Article III, Section 3 of the Pennsylvania Constitution. Id. at 605. Durant

asserts that since 18 Pa.C.S. § 4915 was invalidated by the Neiman

decision, he is serving an illegal sentence that is subject to collateral review.

      Durant   cannot    invoke   the   newly-recognized    constitutional   right

exception in these circumstances.       First, Neiman did not recognize a new



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constitutional right; rather, it held a statute unconstitutional based upon

precedent interpreting the Pennsylvania Constitution’s single subject rule.

Secondly, Neiman has not been held to apply retroactively in the PCRA

context. See Commonwealth v. Abdul-Salaam, 812 A.2d 497, 501 (Pa.

2002) (the court that recognized the new constitutional right must have

“already held the new constitutional right to be retroactive to cases on

collateral review.”)

      We note that had Durant made an identical argument regarding the

legality of his sentence within a direct appeal, he would have been afforded

the relief he seeks. See Commonwealth v. Myers, No. 1295 MDA 2014,

unpublished memorandum at 16 (Pa. Super. filed July 31, 2015) (holding

offenses created by appellant’s convictions under Megan’s Law III illegal and

void, citing Ex Parte Siebold, 100 U.S. 371, 376 (1879) (conviction under

void statute “is not merely erroneous, but is illegal and void and cannot be a

legal cause of imprisonment”)).

      Here, because Durant seeks collateral relief and filed a PCRA petition,

we have considered it pursuant to the PCRA.      Indeed, facially, the instant

matter is governed by the PCRA, as it asserts that Durant is serving an

illegal sentence. The PCRA explicitly states that in providing an action for

those serving illegal sentences, 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.”         42

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Pa.C.S. § 9542. However, claims that fall outside the sphere of the PCRA

can be advanced by a petition for habeas corpus or coram nobis.                   See

Commonwealth           v.   Judge,     916     A.2d   511   (Pa.   2007);   see   also

Commonwealth v. Descardes, 101 A.3d 105 (Pa. Super. 2014) appeal

granted in part, 112 A.3d 1207 (Pa. 2015) and appeal denied, 113 A.3d 278

(Pa. 2015).

       Though the instant matter is not before us as a habeas corpus petition

and ordinarily a challenge to the legality of a sentence is only to be decided

as a PCRA petition, the circumstances here presented could appropriately be

raised in a habeas corpus petition. This is because the statute under which

Durant was convicted was held to be void in Neiman; it is as if the statute

never existed.     Thus, the charges for which Durant was convicted did not

exist and his conviction is more precisely a void conviction rather than

merely an illegal conviction. Myers, supra. This circumstance simply is not

contemplated by the PCRA’s timeliness provisions and blanket coverage of

illegal sentences, making a habeas corpus petition appropriate. 3                 See

Judge, supra, at 520 (habeas corpus petition not subsumed by PCRA; claim

was cognizable outside PCRA because the “[a]ppellant [was] not asserting


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3
  A habeas corpus petition would be appropriate, rather than a coram nobis
petition. See Descardes, supra, at 109 (coram nobis petition “provides a
way to collaterally attack a criminal conviction for a person . . . who is no
longer ‘in custody’ and therefore cannot seek habeas relief” (citation
omitted)).



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his innocence of the underlying crimes or that his sentence was illegal when

imposed” (emphasis added)).              Nevertheless, as this matter was raised

within a PCRA petition, we are constrained to consider it pursuant to the

PCRA.

       For the foregoing reasons, we find that Durant’s PCRA petition was

untimely filed and that he failed to meet his burden of demonstrating an

untimeliness exception applied. Thus, Durant is entitled to no relief under

the PCRA.4 Jones, supra; Fahy, supra.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/2015




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4
   The trial court did not dismiss the petition on timeliness grounds.
However, it is well settled that we are not limited by the trial court’s
rationale and may affirm its decision on any basis.   Blumenstock v.
Gibson, 811 A.2d 1029, 1033 (Pa. Super. 2002).



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