J-S18002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 MOHAMMAD SOHAIL SALEEM                   :
                                          :
                    Appellant             :   No. 1582 MDA 2018

          Appeal from the PCRA Order Entered September 4, 2018
   In the Court of Common Pleas of Lebanon County Criminal Division at
                     No(s): CP-38-CR-0000565-2014


BEFORE:    BOWES, J., NICHOLS, J., and STEVENS,* P.J.E.

MEMORANDUM BY BOWES, J.:                              FILED APRIL 17, 2019

      Mohammad Sohail Saleem appeals from the September 4, 2018 order

treating his petition for habeas corpus as a PCRA petition, and dismissing it as

untimely. We affirm.

      Appellant was charged at two criminal numbers in March and May of

2014 with multiple counts of sexual assault, indecent assault, and one count

of involuntary deviate sexual intercourse involving two different female

victims who were his employees of his small business. On April 21, 2015, he

entered a negotiated guilty plea to two counts of indecent assault at No. 0565,

and one count each of indecent assault and harassment at No. 1112. The

remaining charges were non prossed. He was sentenced on June 3, 2015, to

two consecutive terms of imprisonment of nine months to four years, and

$200 in fines at No. 0565, and a consecutive term of imprisonment of three

months to two years in a state correctional facility. The harassment conviction

____________________________________
* Former Justice specially assigned to the Superior Court.
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merged for sentencing purposes. In the sentencing order, the court noted

that Appellant met the criteria to be classified as a sexually violent predator

(“SVP”) under Megan’s Law, and further, that Appellant might be impacted by

“collateral immigration consequences.” Order, 6/3/15, at 2.

      Appellant filed an untimely post-sentence motion asking the court to

modify his sentence or, in the alternative, permit him to withdraw his plea as

it was not entered into voluntarily, knowingly, and intelligently. He alleged

that he was incorrectly informed that he would be deported immediately, but

subsequently learned that he would have to serve his sentence first. The court

denied him the right to file the motion nunc pro tunc, but granted him leave

to file a PCRA petition.

      On August 31, 2015, Appellant filed a counseled PCRA petition in which

he alleged that he pled guilty based upon statements made by his counsel and

the assistant district attorney.          After a hearing, the court found no

ineffectiveness   and      denied   relief.     On   appeal,   this   Court   affirmed.

Commonwealth v. Saleem, 168 A.3d 357 (Pa.Super. 2017) (unpublished

memorandum). Appellant filed a second pro se PCRA petition on April 6, 2017,

which the PCRA court dismissed without a hearing as untimely. We affirmed

on May 1, 2018.      Commonwealth v. Saleem, 192 A.3d 207 (Pa.Super.

2018) (unpublished memorandum).

      On May 10, 2018, Appellant filed a petition for writ of habeas corpus

challenging his status as an SVP after Commonwealth v. Muniz, 164 A.3d

1189 (Pa. 2017) (finding SORNA registration punitive).                The PCRA court

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appointed counsel and directed him to file an amended PCRA petition.

Instead, counsel sought leave to withdraw pursuant to Turner/Finley,

attached a copy of his no-merit letter to his petition, and served it upon

Appellant. Counsel represented therein that he had conducted a review of the

record and concluded that there were no issues of merit as the petition was

untimely. After reviewing counsel’s petition to withdraw, his no-merit letter,

and the record, the court granted the petition. The court concluded that after

Muniz, Appellant’s claims were cognizable under the PCRA, applied the PCRA’s

time limitations, and dismissed the petition as untimely.

      Appellant timely filed the instant pro se appeal, and both Appellant and

the PCRA court complied with Pa.R.A.P. 1925. Appellant presents one issue

for our review: “Whether the lower court erred by treating [his] writ of habeas

corpus as a PCRA petition, where the claim presented has no remedy under

the PCRA and the legislature did not create a remedy?” Appellant’s brief at 5.

      Before we can determine whether we have jurisdiction to entertain the

merits of the within petition, we must determine whether the PCRA court

properly treated the petition, styled as a habeas corpus petition, as a PCRA

petition. The case of Commonwealth v Masker, 34 A.3d 841 (Pa.Super.

2011), relied upon by Appellant for the proposition that SVP designations and

registration requirements are civil collateral consequences of a plea and not

cognizable under the PCRA, is no longer the applicable law. In Muniz, our

Supreme Court held that SORNA registration is punitive and part of the


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sentence. Hence, such claims are now cognizable under the PCRA. Where,

as here, the PCRA provides a means of obtaining relief, “it encompasses all

other common law and statutory remedies for the same purpose . . . including

habeas corpus and coram nobis. Commonwealth v. Descardes, 136 A.3d

493, 496-97 (Pa. 2016). Thus, the trial court properly treated Appellant’s

petition as a PCRA petition.

      Our standard of review of an order dismissing a petition under the PCRA

is whether the determination of the PCRA court is supported by evidence of

record and is free of legal error. Commonwealth v. Burkett, 5 A.3d 1260,

1265 (Pa.Super. 2010). Before we can address the merits of the petition,

however, we must first determine if the petition is timely. The time limitations

of the PCRA are jurisdictional, and we may not reach the merits of the petition

unless it is timely filed. Commonwealth v. Albrecht, 994 A.2d 1091, 1093

(Pa. 2010). Under the PCRA, “any petition shall be filed within one year of

the date when the judgment becomes final[.] 42 Pa.C.S. § 9545(b)(1). A

judgment of sentence 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 the time for seeking

the review.” Id. at § 9545(b)(3).

      Appellant’s judgment of sentence became final on or about July 3, 2015,

when the time to file a direct appeal to this Court expired. Id. Thus, any

petition, in order to be timely, would have to be filed before July 3, 2016. The


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instant petition filed May 10, 2018, is untimely on its face. Nevertheless, we

may consider a facially untimely petition if the petitioner pleads and proves

one of the exceptions to the time-bar set forth in § 9545(b)(1)(i-iii).

      Appellant does not invoke any of the exceptions to the time-bar. Nor

can he rely upon Muniz to satisfy the “new retroactive right” exception of

§ 9545(b)(1)(iii).   Our Supreme Court held in Commonwealth v. Abdul-

Salaam, 812 A.2d 497 (Pa. 2002), that a newly-recognized constitutional

right under § 9545(b)(1)(iii) must also have been held by the court

recognizing it to apply retroactively. Although Muniz created a substantive

rule that retroactively applies in the collateral context, this Court held in

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

Muniz does not “satisfy the ‘new retroactive right’ exception of section

9545(b)(1)(iii).”

      Accordingly, the PCRA court correctly treated Appellant’s habeas corpus

petition as a PCRA petition, and dismissed it as untimely.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 04/17/2019




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