J   -S42012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA                     1   IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                           Appellee

                      v.

KENNETH E. GARRISON

                           Appellant                      No. 243 MDA 2017


               Appeal from the PCRA Order December 22, 2016
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0006082-2013


BEFORE:     OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                               FILED AUGUST 01, 2017

        Appellant, Kenneth Garrison, appeals pro se from an order entered on

December 22, 2016, raising three issues for our review. We agree with the

trial court that Appellant    is   challenging the validity of his conviction, and

therefore the petition      was     properly treated as    a   petition under the

Post -Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We further

conclude that the claims raised in Appellant's PCRA petition are untimely and

that Appellant   is   therefore not entitled to PCRA relief.      Accordingly, we

affirm.

        As our disposition is based solely on the procedural history of this

case, we do not set forth the factual background.        On September 13, 1993,
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Appellant pled guilty and was sentenced to an aggregate term of four to ten

years' imprisonment for, inter alia, aggravated indecent assault.' In 1995,

Megan's     Law       I   took effect, requiring Appellant to register with the

Pennsylvania State Police ("PSP") for           a   period of ten years.   In 2003,

Appellant was released from prison and began his ten-year registration

requirement.          On December 20, 2012, while Appellant was still subject to

registration requirements, Pennsylvania's Sexual Offender Registration and

Notification Act ("SORNA"), 42 Pa.C.S.A. §§ 9799.10-9799.41, took effect.

SORNA provides            that any individual previously required to register for   a


sexually violent offense with the PSP, and who has not fulfilled that period of

registration,    is   required to register pursuant to SORNA.     See 42 Pa.C.S.A.

§   9799.13(3)(i).         Under SORNA, Appellant's aggravated indecent assault

conviction required that he register for the remainder of his life.

        On September 3, 2013, Appellant was charged with two counts of

failing to verify address and obtain photographs,2 failure to comply with

registration requirements,3 and failure to provide accurate registration

information.4         On June 9, 2014, Appellant pleaded      guilty to all charges,



'    18 Pa.C.S.A § 3125(a)(1).

2
     18 Pa.C.S.A. §       4915.1(a)(2).
3
     18 Pa.C.S.A. §       4915.1(a)(1).
4
     18 Pa.C.S.A. §       4915.1(a)(3).


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except failure to      provide accurate registration         information,     and   was

sentenced to an aggregate term of three to six years' incarceration.5

        Appellant filed neither   a   post -sentence motion nor   a   direct appeal. On

March 2, 2015, Appellant filed           a   pro se PCRA petition.        Counsel was

appointed and filed      a   no -merit    letter pursuant to Commonwealth v.

Turner, 544 A.2d 927         (Pa. 1988), and      Commonwealth v. Finley, 550
A.2d 213 (Pa. Super 1988) (en banc). On August 11, 2015, the PCRA court

dismissed the petition. Appellant did not appeal.

        On October 26, 2016, Appellant filed a pro se petition              for habeas

corpus relief, which the trial court treated as       a   second PCRA petition.     On

November 8, 2016, the trial court issued notice of its intent to dismiss the

petition without an evidentiary hearing.           See Pa.R.Crim.P. 907(A).         On

December 22, 2016, the trial court dismissed the petition.                  This timely

appeal followed.6

        Appellant presents three issues for our review:

        1. Did  the [PCRA] court err by treating [] Appellant's [p]etiton
           for [w]rit of [h]abeas [c]orpus as a PCRA [petition] instead of
           the [w]rit of [h]abeas [c]orpus as was filed?




5
  The charge of failure to provide accurate registration information was nolle
prossed as part of the negotiated guilty plea agreement.

6 The trial court did not order Appellant to file a concise statement of errors
complained of on appeal ("concise statement"). See Pa.R.A.P. 1925(b).
Nonetheless, Appellant filed a concise statement on February 21, 2017.


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        2. Did the [PCRA]  court err [by] not enforcing the [g]uilty [p]lea
            that was accepted by the court in 1993?

        3   Did the [PCRA] court err by not sentencing                   [] Appellant to   a
            sentence under [42 Pa.C.S.A. §] 9718.4[]?

Appellant's Brief at 3.

        Appellant first claims that it was improper to treat his habeas corpus

petition as       a   petition for post -conviction relief.             Whether    a   pleading is

properly construed as             a PCRA    petition   is a   question of law; therefore, our

standard of review is de novo and our scope of review                         is   plenary.    See

Commonwealth v. Descardes, 136 A.3d 493, 497                               (Pa. 2016) (citation

omitted).

        "The [PCRA is] the sole means of obtaining collateral relief and

encompasses all other common law and statutory remedies for the same

purpose.     .    .   including habeas corpus and coram                 nobis."     42 Pa.C.S.A.

§   9542.    A petition         for writ of habeas     corpus    is   only appropriate where     a


petitioner's claim         is   not cognizable under the PCRA.            See Descardes, 136

A.3d at 499.

        Here, Appellant challenges the validity of his conviction and sentence

by arguing that he should not be required to register under SORNA because

registration was not part of his original plea deal.                   Essentially, Appellant is

arguing that his conviction should be overturned because he never should

have been subject to SORNA registration requirements. A claim challenging

the    legality       of   a     sentence    is   cognizable      under     the    PCRA.       See


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Commonwealth v. Holmes, 933 A.2d 57, 60              (Pa. 2007) (finding legality of

sentence is always subject to review within the PCRA, as long as the claim

satisfies the Act's time limitations).       Further, Appellant's petition can be

construed as invoking an ineffective assistance of counsel claim, since his

original plea agreement was not raised as an affirmative defense.                      See

Commonwealth v. Grant, 813 A.2d 726, 742                  (Pa. 2002) (finding          that

claims sounding      in   the alleged     ineffective assistance of counsel             are

specifically deemed cognizable under the PCRA).               Thus, the PCRA court

correctly treated Appellant's filing as   a PCRA   petition and not      a    petition for   a


writ of habeas corpus.'

        Before we address the merits of Appellant's next two issues, we must

first determine whether the instant        PCRA    petition was timely filed.           The

timeliness requirement for PCRA petitions "is mandatory and jurisdictional in

nature, and the court may not ignore it in order to reach the merits of the

petition." Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super.

2013) (citation omitted). "The question of whether        a   petition   is   timely raises

a   question of law. Where the petitioner raises questions of law, our standard

7
   This case is distinguishable from Commonwealth v. Demora, 149 A.3d
330 (Pa. Super. 2016). In Demora, the petitioner was not convicted of
violating SORNA's registration requirements. Rather, the petitioner took
affirmative action through a petition for habeas corpus relief to enforce his
plea agreement. See also Dougherty v. Pennsylvania State Police, 138
A.3d 152, 155 (Pa. Cmmw. 2016) (en banc) (holding petitioner's request to
order specific performance of his plea agreement was properly brought as a
petition for review in the nature of a writ of mandamus).


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of review is de novo and our scope of review         is   plenary." Commonwealth

v.   Taylor, 65 A.3d 462, 468 (Pa. Super. 2013) (citations omitted).

        The   PCRA    mandates that all petitions for post -conviction relief,

including second and subsequent petitions, be filed within one year of the

date upon which the judgment becomes final, unless one of the three

statutory exceptions       applies.      See   42    Pa.C.S.A.     §   9545(b)(i)-(iii).

Pennsylvania law makes clear that when "a PCRA petition is untimely,

neither [the Superior] court nor the trial court has jurisdiction over the

petition." Commonwealth v. Seskey, 86 A.3d 237, 241 (Pa. Super. 2014)

(citation omitted).      For purposes of the PCRA, a judgment of sentence

becomes final at the conclusion of direct review, or at the expiration of the

time for seeking such review. 42 Pa.C.S.A.       §   9545(b)(3).

        Appellant did not file   a   direct appeal from his judgment of sentence

imposed on June 9, 2014.         Thus, Appellant's judgment of sentence became

final on or about July 9, 2014. Appellant had to file his petition within one

year from that date or demonstrate that an exception applies.                Appellant

filed his petition on October 26, 2016, over two years after his judgment of

sentence became final.      Appellant has neither pled nor proven any of the

three statutory exceptions to the timeliness provisions of the PCRA. Thus,

Appellant's PCRA petition was patently untimely and no exceptions have

been established.      Commonwealth v. Walter, 966 A.2d 560, 566                   (Pa.




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2009).    Therefore, the PCRA court properly held that it lacked jurisdiction

over his untimely petition.

        Application to supplement the certified record denied. Order affirmed.




Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 8/1/2017




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