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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   v.                    :
                                         :
RICHARD COPPOLINO,                       :          No. 822 EDA 2019
                                         :
                        Appellant        :


             Appeal from the PCRA Order Entered March 4, 2019
            In the Court of Common Pleas of Montgomery County
              Criminal Division at No. CP-46-CR-0010128-2001


BEFORE: BOWES, J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED NOVEMBER 14, 2019

      Richard Coppolino appeals from the March 4, 2019 order entered by the

Court of Common Pleas of Montgomery County denying his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. After careful review, we affirm.

      On August 3, 2001, a jury convicted appellant of one count of

involuntary deviate sexual intercourse, three counts of aggravated indecent

assault, and one count each of simple assault, recklessly endangering another

person, unlawful restraint, terroristic threats, and intimidation of a witness.1

The trial court sentenced appellant to a term of 61-122 months’ imprisonment

to be followed by 3 years’ probation on November 26, 2001. On November 27,


1 18 Pa.C.S.A. §§ 3123(a)(1), 3125(a)(1), 2701(a)(1), 2705, 2902(a)(1),
2706, and 4952(a)(3), respectively.
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2002, a previous panel of this court affirmed appellant’s judgment of

sentence, and our supreme court denied appellant’s petition for allowance of

appeal on June 30, 2003.     Commonwealth v. Coppolino, 816 A.2d 326

(Pa.Super. 2002) (unpublished memorandum), appeal denied, 827 A.2d 429

(Pa. 2003). Appellant did not seek further review in the Supreme Court of the

United States.

      Appellant filed a timely first PCRA petition on September 27, 2004.

Following an agreement between counsel, the PCRA court reduced appellant’s

sentence to 35 months and 11 days to 70 months and 22 days’ imprisonment

to be followed by 4 years’ probation.

      On June 16, 2010, appellant filed a petition for a writ of habeas corpus,

in which he averred that he should not be subject to registration and reporting

requirements pursuant to Megan’s Law. Following a conference, the PCRA

court dismissed appellant’s petition on December 1, 2010. A previous panel

of this court affirmed the PCRA court’s denial of relief, but remanded for

appellant to be properly notified of his obligations pursuant to Megan’s Law.

Commonwealth v. Coppolino, 40 A.3d 193 (Pa.Super. 2011 (unpublished

opinion). Appellant filed a petition for allowance of appeal with our supreme

court, which was denied on May 31, 2012. Commonwealth v. Coppolino,

47 A.3d 844 (Pa. 2012).

      On January 16, 2018, appellant filed the instant PCRA petition/petition

for writ of habeas corpus. Therein, he argued that he should not be subject



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to the reporting and registration requirements of the Sex Offender

Registration   and    Notification   Act    (“SORNA”)    due   to   the   holding   of

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), which holds that

application of SORNA to sex offenders who committed their crimes prior to

SORNA’s enactment constitutes an ex post facto violation under both the

United States and Pennsylvania Constitutions.           Appellant filed an amended

PCRA petition/petition for writ of habeas corpus on May 9, 2018.

      The PCRA court filed a notice of intention to dismiss appellant’s PCRA

petition without a hearing pursuant to Pa.R.Crim.P. 907 on October 31, 2018,

and appellant filed a response on November 16, 2018. Appellant subsequently

filed a supplemental response on January 14, 2019. The PCRA court dismissed

appellant’s petition on March 4, 2019.           Subsequent to the PCRA court’s

dismissal of appellant’s petition, appellant filed an addendum to his

supplemental response to the PCRA court’s Rule 907 notice on March 8, 2019.

      Appellant timely filed a notice of appeal on March 15, 2019. The PCRA

court did not order appellant to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b). On April 17, 2019, the PCRA

court filed an opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issues for our review:

            [I.]     Is the appellant’s claim reviewable as a habeas
                     corpus petition? If not, was appellant’s petition
                     untimely?

            [II.] Is the appellant entitled to relief where the
                  Commonwealth seeks to enforce retroactive


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                  sentencing obligations upon the appellant under
                  Act 10 of 2018?

Appellant’s brief at 2 (extraneous capitalization omitted).2

      In order to reach a decision on appellant’s first issue, we must determine

whether the instant petition is within the purview of the PCRA or, alternatively,

should be reviewed as a petition for a writ of habeas corpus.          Appellant

contends that the issues raised in his petition fall outside of the scope of the

PCRA and should, therefore, be reviewed under the standards for petitions for

a writ of habeas corpus. (Id. at 9.)

            It is well-settled that the PCRA is intended to be the
            sole means of achieving post-conviction relief.
            42 Pa.C.S.[A.] § 9542; Commonwealth v. Haun, []
            32 A.3d 697 ([Pa.] 2011). Unless the PCRA could not
            provide for a potential remedy, the PCRA statute
            subsumes       the    writ    of   habeas     corpus.
            [Commonwealth v. Fahy, 737 A.2d 214, 223-224
            (Pa. 1999)]; Commonwealth v. Chester, [] 733
            A.2d 1242 ([Pa.] 1999). Issues that are cognizable
            under the PCRA must be raised in a timely PCRA
            petition and cannot be raised in a habeas corpus
            petition. See Commonwealth v. Peterkin, [] 722
            A.2d 638 ([Pa.] 1998); see also Commonwealth v.
            Deaner, 779 A.2d 578 (Pa.Super. 2001) (a collateral
            petition that raises an issue that the PCRA statute
            could remedy is to be considered a PCRA petition).
            Phrased differently, a defendant cannot escape the
            PCRA time-bar by titling his petition or motion as a
            writ of habeas corpus.[Footnote 3]

                  [Footnote 3] The common law writ of
                  habeas corpus has not been eliminated.
                  In both Commonwealth v. West, [] 938
                  A.2d     1034   ([Pa.]  2007)     and

2 For ease of discussion, we have re-ordered appellant’s issues raised on
appeal.


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                   Commonwealth v. Judge, [] 916 A.2d
                   511 ([Pa.] 2007), our Supreme Court held
                   that claims that fall outside the sphere of
                   the PCRA can be advanced via a writ of
                   habeas corpus.

Commonwealth v. Taylor, 65 A.3d 462, 465-466 (Pa.Super. 2013).

      Here, appellant contends that his petition does not challenge the

propriety of his underlying conviction or sentence; therefore, his petition does

not fall under the purview of the PCRA.3 We disagree. In Commonwealth

v. Greco, 203 A.3d 1120, 1123 (Pa.Super. 2019), we determined that

because our supreme court had held that SORNA’s retroactive application

violates state and federal ex post facto clauses, the legality of a defendant’s

sentence   is   implicated,   thereby   implicating   the   PCRA.   Id.,   citing

Commonwealth v. Butler, 173 A.3d 1212, 1215 (Pa.Super. 2017);

Commonwealth v. Murphy, 180 A.3d 402, 405-406 (Pa.Super. 2018).

      Accordingly, we find that the trial court did not err when it reviewed

appellant’s petition as a PCRA petition.

      We must now determine whether appellant’s PCRA petition was timely

filed. The PCRA requires that any petition for collateral relief be filed within


3 We note that appellant cites cases in which challenges to the applicability of
Megan’s Law and its successor, SORNA, were treated as writs of
habeas corpus. (See appellant’s brief at 9, citing Commonwealth v.
Giannantonio, 114 A.3d 429, 433 (Pa.Super. 2014), and Commonwealth
v. Miller, 787 A.2d 1036, 1038 (Pa.Super. 2001).) Both cases are inapposite
here, as neither addresses an underlying conviction in Pennsylvania state
courts. The defendant in Giannantonio pled guilty to sexual offenses in
federal court, while the defendant in Miller was convicted in Hawaii. See
Giannantonio, 114 A.3d at 431; Miller, 787 A.2d at 1037.


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one year of the date that the judgment of sentence becomes final.

42 Pa.C.S.A. § 9545(b)(1). “[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.” Commonwealth v. Callahan, 101 A.3d 118,

122 (Pa.Super. 2014), quoting 42 Pa.C.S.A. § 9545(b)(3). A petitioner may

only timely file a PCRA petition beyond one year of the date the judgment of

sentence becomes final if:

            (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)(i)-(iii).

            “[T]he time limitations pursuant to . . . the PCRA are
            jurisdictional.”      [Fahy, 737 A.2d at 222.]
            “[Jurisdictional time] limitations are mandatory and
            interpreted literally; thus, a court has no authority to
            extend filing periods except as the statute permits.”
            Id. “If the petition is determined to be untimely, and
            no exception has been pled and proven, the petition
            must be dismissed without a hearing because


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            Pennsylvania courts are without jurisdiction to
            consider the merits of the petition.” Commonwealth
            v. Perrin, 947 A.2d 1284, 1285 (Pa.Super. 2008).

Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa.Super. 2011), appeal

denied, 47 A.3d 845 (Pa. 2012).

      Here, appellant’s judgment of sentence became final on September 28,

2003, following the conclusion of the period in which appellant could have filed

a petition for a writ of certiorari with the Supreme Court of the United States.

See U.S. Sup. Ct. R. 13.      Appellant filed the PCRA petition at issue on

January 16, 2018—over 14 years after his judgment of sentence became final

and over 13 years after a PCRA petition could be considered timely.        See

42 Pa.C.S.A. § 9545(b)(1).

      Appellant argues that he is entitled to relief because he filed the PCRA

petition at issue within 60 days of the effective date of SORNA. (Appellant’s

brief at 10.) He further argues that our supreme court’s decision in Muniz

renders his registration requirements unconstitutional. (Id. at 10-11.)

      Newly enacted legislation is not an exception to the jurisdictional

time-bar recognized by the PCRA.         Moreover, Muniz does not provide

appellant with an avenue toward relief. Indeed, the Muniz court held that the

retroactive application of SORNA’s registration requirements violates the

federal ex post facto clauses of both the United States and Pennsylvania

Constitutions. Muniz, 164 A.3d at 1123. The court, however, did not create

a retroactive right as contemplated by Section 9545(b)(1)(iii) of the PCRA.



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Commonwealth v. Murphy, 180 A.3d 402, 405 (Pa.Super. 2018), appeal

denied, 195 A.3d 559 (Pa. 2018). As conceded by appellant, this court held

Muniz applied retroactively on collateral review only in cases involving timely

filed PCRA petitions. See Commonwealth v. Rivera-Figueroa, 174 A.3d

674, 678 (Pa.Super. 2017); Commonwealth v. Knecht,             A.3d     , 2019

WL 4459069 (Pa.Super. September 18, 2019).

      Accordingly, we find that appellant has neither pled nor proved an

exception to the PCRA time-bar. Therefore, we do not have jurisdiction to

consider the merits of the issues raised by appellant on appeal.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 11/14/19




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