Com. v. Garrison, K. (memorandum)

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J -S42012-17 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. KENNETH E. GARRISON Appellant No.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. FILED AUGUST 01, 2017 MEMORANDUM BY OLSON, J.: 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 therefore the petition is was challenging the validity of his conviction, and 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, J -S42012-17 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. 9799.13(3)(i). See 42 Pa.C.S.A. 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 ' 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). -2 guilty to all charges, J -S42012-17 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 March 2, 2015, Appellant filed appointed and filed a Turner, 544 A.2d 927 no -merit a a direct appeal. On pro se PCRA petition. Counsel was letter pursuant to Commonwealth v. (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 corpus relief, which the trial court treated as a for habeas 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). December 22, 2016, the trial court dismissed the petition. On This timely appeal followed.6 Appellant presents three issues for our review: 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? 1. Did 5 The charge of failure to provide accurate registration information was nolle prossed as part of the negotiated guilty plea agreement. 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. 6 -3 J -S42012-17 court err [by] not enforcing the [g]uilty [p]lea that was accepted by the court in 1993? 2. Did the [PCRA] 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 Whether petition for post -conviction relief. properly construed as a PCRA petition is a a pleading is question of law; therefore, our standard of review is de novo and our scope of review Commonwealth v. Descardes, 136 A.3d 493, 497 is plenary. See (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. § 9542. . . including habeas corpus and coram A petition petitioner's claim is for writ of habeas corpus is nobis." 42 Pa.C.S.A. only appropriate where a See Descardes, 136 not cognizable under the PCRA. 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 -4 under the PCRA. See J -S42012-17 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 ineffective assistance of counsel are claims sounding in the alleged Thus, the PCRA court specifically deemed cognizable under the PCRA). 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 a petition is timely raises 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). -5 J -S42012-17 of review is de novo and our scope of review v. is plenary." Commonwealth 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. Appellant did not file imposed on June 9, 2014. a § 9545(b)(3). direct appeal from his judgment of sentence 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 -6 (Pa. J -S42012-17 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. seph D. Seletyn, Prothonotary J Date: 8/1/2017 -7

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