J-S08040-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    CORIE REX HILLIARD                         :
                                               :   No. 1370 WDA 2017
                       Appellant

               Appeal from the PCRA Order September 12, 2017
     In the Court of Common Pleas of Somerset County Criminal Division at
                       No(s): CP-56-CR-0000361-2011


BEFORE:      LAZARUS, J., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                       FILED FEBRUARY 27, 2018

       Appellant Corie Rex Hilliard appeals from the Order entered in the Court

of Common Pleas of Somerset County on September 12, 2017, denying as

untimely his petition filed pursuant to the Post Conviction Relief Act. 1     We

affirm.

       On December 12, 2011, Appellant pled guilty to six counts of involuntary

deviate sexual intercourse (IDSI) with a child under the age of thirteen,

graded as a first-degree felony under 18 Pa.C.S.A. § 3123(b), and numerous

other charges related to his sex crimes were withdrawn. N.T. Guilty Plea

Hearing, 12/11/11, at 9.2 Although Appellant originally had been charged with
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142 Pa.C.S.A. §§ 9541-9546.
2Appellant’s plea arose following his admission to the State Police on January
9, 2011, that he had been sexually molesting his five-year-old- daughter for
some time and the subsequent police investigation whereby additional
evidence was gathered including the child’s confirmation of the abuse.
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* Former Justice specially assigned to the Superior Court.
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twelve counts under 18 Pa.C.S.A. § 3123(a)(6), the District Attorney orally

moved to amend the criminal information at the outset of the guilty plea

hearing to substitute Subsection 3123(b) for Subsection 3123(a)(6). Id. at

3.3

       On April 11, 2012, Appellant was sentenced to an aggregate term of

twenty (20) years to forty (40) years in prison. N.T. Sentencing, 4/11/12, at

25-26. Appellant also was informed that “the Pennsylvania statue known as

Megan’s Law requires that you be notified of your obligation to register under

that law; and, because of the nature of the charges that you’ve pled guilty to

and been sentenced on here today, the term of registration will be for the rest

of your life.” Id. at 28.        The trial court denied Appellant’s post sentence

motion in an Order entered on May 22, 2012, and he did not file a direct

appeal.

       On March 17, 2016, Appellant filed a petition for writ of habeas corpus,

pro se, which the PCRA court properly treated as his first PCRA petition. On

March 21, 2016, the PCRA court issued its notice of intent to dismiss

Appellant’s petition without a hearing pursuant to Pa.R.Crim.P. 907. Therein,

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3 “Section 3123(a)(6), which provided a person commits a felony of the first
degree when he or she engages in deviate sexual intercourse with a
complainant who is less than 13 years of age, was … deleted [in 2002].”
Commonwealth v. Snyder, 870 A.2d 336, 340 n.2 (Pa.Super. 2005). The
amended statute included Section 3123(b) as the “identical provision,”
providing that “[a] person commits [IDSI] with a child, a felony of the first
degree, when the person engages in deviate sexual intercourse with a
complainant who is less than 13 years of age.” 18 Pa.C.S.A. § 3123(b); see
id.

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the PCRA court opined that the petition was frivolous in light of the fact

Appellant pled guilty to six counts under Section 3123(b), not Section

3123(a)(1) and because it was filed more than a year after Appellant’s

judgment of sentence had become final.

      Appellant filed a timely appeal with this Court. Upon finding the petition

was Appellant’s first filing and, therefore, he was entitled to the appointment

of counsel, we vacated the Order denying the PCRA petition and remanded to

the PCRA court for the appointment of counsel.       See Commonwealth v.

Hilliard, No. 1052 WDA 2016, unpublished memorandum at 4 (Pa.Super. filed

March 20, 2017).

      Upon remand, counsel was appointed, and the PCRA court heard

argument on May 5, 2017. At that time, counsel discussed Appellant’s alleged

confusion regarding the specific charges on which he had been sentenced.

However, counsel clarified that Appellant did not dispute that at the time he

entered his guilty plea, he pled guilty to six counts under Section 3123(b).

NT. PCRA Argument, 5/5/17, at 4-6.

      Counsel filed an amended PCRA petition on June 5, 2017.          Therein,

Appellant maintained he had not been sentenced on the crimes to which he

had pled guilty, as the transcript of the guilty plea hearing and the docket

entries were unclear as to what provisions under which he was sentenced.

See Amended Petition for Post-Conviction Collateral Relief, filed 6/5/17, at 1-

2.




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      In its Order entered on September 12, 2017, the PCRA court denied the

petition, and Appellant filed a timely appeal on September 14, 2017. On

September 26, 2017, Appellant filed his Concise Statement of Errors

Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b), and on October 17,

2017, the PCRA court filed its Statement Pursuant to Rule 1925 of the

Pennsylvania Rules of Appellate Procedure wherein it stated that the reasons

for its dismissal of Appellant’s PCRA petition had been articulated in its

September 12, 2017, Order dismissing the same.

      In his brief, Appellant presents the following Statement of the Question

Involved:

      1.     Whether the lower court erred in dismissing Appellant’s
      Amended Post-Conviction Collateral Relief Act Petition by finding
      it to be untimely.

      2.     Whether the lower court erred in dismissing Appellant’s
      Amended Post-Conviction Collateral Relief Act Petition by finding
      it Frivolous and Without Merit.

Brief for Appellant at 6 (unnecessary capitalization omitted).

      When reviewing the propriety of an order denying PCRA relief, this Court

is limited to a determination of whether the evidence of record supports the

PCRA court’s conclusions and whether its ruling is free of legal error.

Commonwealth v. Robinson, 635 Pa. 592, 603, 139 A.3d 178, 185 (2016).

This Court will not disturb the PCRA court’s findings unless there is no support

for them in the certified record. Commonwealth v. Lippert, 85 A.3d 1095,

1100 (Pa.Super. 2014).


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      At the outset, we consider whether this appeal is properly before us.

The question of whether a petition is timely raises a question of law, and where

a petitioner raises questions of law, our standard of review is de novo and our

scope of review is plenary. Commonwealth v. Callahan, 101 A.3d 118, 121

(Pa.Super. 2014).

      All PCRA petitions must be filed within one year of the date upon which

the judgment of sentence became final, unless one of the statutory exceptions

set forth in 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) applies. The petitioner bears the

burden of pleading and proving an applicable statutory exception.           If the

petition is untimely and the petitioner has not pled and proven an exception,

the petition must be dismissed without a hearing because Pennsylvania courts

are   without   jurisdiction   to   consider   the   merits    of   the   petition.

Commonwealth v. Taylor, 65 A.3d 462, 468 (Pa.Super. 2013). This is true

even where, as herein, the appellant challenges the legality of his sentence.

Commonwealth v. Fahy, 558 Pa. 313, 331, 737 A.2d 214, 223 (1999)

(holding that claims challenging the legality of sentence are subject to review

within PCRA, but must first satisfy the PCRA's time limits).

      42 Pa.C.S.A. § 9545(b)(1)(i)-(iii) states:

      (b) Time for filing petition.--

      (1)   Any petition under this subchapter, including a second or
            subsequent petition, shall be filed within one year of the
            date the judgment of sentence becomes final, unless the
            petition alleges and the petitioner proves that:




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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). In addition, any petition attempting to invoke one

of these exceptions “shall be filed within 60 days of the date the claim could

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

      Herein, Appellant’s Motion to Modify Sentence was denied on May 22,

2012, and he did not file a direct appeal.       Thus, Appellant’s judgment of

sentence became final thirty days thereafter on or about June 22, 2012, at

which time Appellant’s time for filing a direct appeal expired. See 42 Pa.C.S.A.

§ 9545(b)(3) (“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”).   A timely petition had to be filed by June 22, 2013; therefore,

the instant PCRA petition filed on March 17, 2016, is patently untimely, and

the burden fell upon Appellant to plead and prove that one of the enumerated

exceptions to the one-year time-bar applied to his case. See 42 Pa.C.S.A. §

9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284, 1286 (Pa.Super.




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2008) (to invoke a statutory exception to the PCRA time-bar, a petitioner must

properly plead and prove all required elements of the exception).

      Appellant first asserts he is serving an illegal sentence because the

charges to which he pled guilty were not clarified prior to his guilty plea, and,

therefore, “he falls under the constitutional right exception in that he was

‘sentenced[…]under a statute that he neither pled guilty to nor was convicted

of.’” Brief for Appellant at 13. This bald allegation is insufficient to overcome

the PCRA time-bar. Appellant does not maintain that his failure to assert this

claim in a timely PCRA petition was the result of governmental interference,

based upon facts that were previously unknown to him or the product of a

newly-recognized constitutional right.

      Moreover, a review of the record belies this assertion, for Appellant, who

was present with counsel in the courtroom at the guilty plea hearing, pled

guilty to six counts of 18 Pa.C.S.A. § 3123(b) after the sentencing court

engaged Appellant in a thorough written and oral colloquy prior to his entering

his plea. See Written Guilty Plea Questionnaire, dated 12/12/11; N.T. Guilty

Plea, 12/12/11, at 4-11. Importantly, Appellant did not object to the

amendment of the criminal information at the outset of the guilty plea hearing,

and he does not contend herein that such amendment was improper. Indeed,

as this Court has stated, Section 3123(b), an “identical provision,” replaced

Section 3123(a)(6). See Snyder, supra.         As such, the trial court properly

found this claim was untimely and lacked merit.


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       In addition, in his appellate brief, Appellant raises for the first time a

claim that his petition is timely in light of the Pennsylvania Supreme Court’s

recent decision in Commonwealth v. Muniz, ___ Pa. ____, 164 A.3d 1189

(2017) (Opinion Announcing the Judgment of the Court).4 Brief of Appellant

13-14.     The entirety of Appellant’s argument in this regard is as follows:

             Further, as the Court in Commonwealth v. Muniz, 164
       A.3d 1189 (Pa. 2017) has recently declared SORNA to be
       unconstitutional in certain circumstances, Appellant’s Amended
       PCRA should be addressed. The PCRA court did not even mention
       the Muniz case in dismissing Appellant’s petitions. Even if this
       Honorable Court finds that Appellant is no entitled to relief on his
       habeas corpus request, he is eligible for relief under the Muniz
       holding, therefore negating the PCRA Court’s determination that
       Appellant’s petitions lacked merit.

Brief of Appellant at 13-14.

       While Appellant raises this claim for the first time on appeal, we may

review it. Commonwealth v. Butler, 2017 WL 4914155 at *2 (Pa.Super.

2017) (holding that while issues not raised before the trial court are generally

waived for appellate purposes, a challenge to the legality of a sentence based

on Muniz need not be preserved in the trial court in order to be reviewable).

Notwithstanding, Appellant does not challenge specifically any portion of his

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4 On July 19, 2017, the Supreme Court filed its decision in Muniz holding that
the enhanced registration requirements of the Sexual Offender Registration
and Notification Act (“SORNA”) are punitive and, therefore, applying SORNA
retroactively is a violation of the ex post facto clauses of the U.S. Constitution
and Pennsylvania Constitutions. Muniz at ____, 164 A.3d at 1223.




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sentence imposed under the then-extant Megan’s Law. Indeed, Appellant was

not designated as an SVP at sentencing. N.T. Sentencing, 4/11/12, at 5. In

addition, his sentence predated SORNA, and SORNA did not affect his lifetime

registration requirement under then-extant Megan’s Law.5 Thus, Muniz does

not apply here.

       In light of the foregoing, Appellant has filed a facially untimely PCRA

petition and has failed to plead and prove the applicability of any exception to

the PCRA time-bar. We, therefore, affirm the PCRA court’s Order.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/2018




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5 On December 20, 2011, the legislature replaced Megan's Law with SORNA,
effective December 20, 2012, to strengthen registration requirements for sex
offenders and to bring Pennsylvania into compliance with the Adam Walsh
Child Protection and Safety Act, 42 U.S.C.A. § 16901 et seq.

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