Com. v. Gooding, J. ( 2018 )

J-S70033-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOSHUA MICHAEL GOODING, :
:
Appellant : No. 557 EDA 2018
Appeal from the PCRA Order January 31, 2018
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003180-2004
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
JUDGMENT ORDER BY GANTMAN, P.J.: FILED DECEMBER 21, 2018
Appellant, Joshua Michael Gooding, appeals pro se from the order
entered in the Chester County Court of Common Pleas, which denied his
second petition brought pursuant to the Post-Conviction Relief Act (“PCRA”),
at 42 Pa.C.S.A. §§ 9541-9546. On October 5, 2004, Appellant entered an
open guilty plea to involuntary deviate sexual intercourse, burglary, and
simple assault. The court sentenced Appellant on March 3, 2005, to an
aggregate term of 12½ to 42 years’ imprisonment, and deemed Appellant a
sexually violent predator. Appellant did not appeal.
On May 7, 2015, Appellant filed pro se a petition for writ of habeas
corpus, which the court treated as a first PCRA petition. The PCRA court
appointed counsel, who filed a no-merit letter, pursuant to Commonwealth
v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley,
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550 A.2d 213 (Pa.Super. 1988) (en banc), and a petition to withdraw on
September 14, 2015. The PCRA court issued notice of its intent to dismiss
pursuant to Pa.R.Crim.P. 907 on November 10, 2015, and denied relief and
granted counsel’s petition to withdraw on January 20, 2016. Appellant did not
appeal.
On October 2, 2017, Appellant filed pro se his second PCRA petition,
which asserted relief due under Commonwealth v. Muniz, 640 Pa. 699, 164
A.3d 1189 (2017), cert denied, ___ U.S. ___, 138 S. Ct. 925, 200 L. Ed. 2d 213
(2018). The PCRA court issued Rule 907 notice on January 3, 2018, and
Appellant responded pro se on January 26, 2018. On January 31, 2018, the
PCRA court denied relief. Appellant timely filed a pro se notice of appeal on
February 20, 2018. The PCRA court, on February 26, 2018, ordered Appellant
to file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b); Appellant timely complied on March 5, 2018.
Preliminarily, any petition for post-conviction collateral relief will
generally be considered a PCRA petition if the petition raises issues cognizable
under the PCRA. See Commonwealth v. Jackson, 30 A.3d 516 (Pa.Super.
2011), appeal denied, 616 Pa. 634, 47 A.3d 845 (2012); 42 Pa.C.S.A. § 9542
(stating PCRA shall be sole means of obtaining collateral relief and
encompasses all other common law and statutory remedies for same
purpose). The timeliness of a PCRA petition is a jurisdictional requisite.
Commonwealth v. Zeigler, 148 A.3d 849 (Pa.Super. 2016). A PCRA petition
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must be filed within one year of the date the underlying judgment becomes
final. 42 Pa.C.S.A. § 9545(b)(1). A judgment of sentence is deemed final at
the conclusion of direct review or at the expiration of time for seeking review.
42 Pa.C.S.A. § 9545(b)(3). The statutory exceptions to the time-bar allow for
very limited circumstances to excuse the late filing of a petition; a petitioner
asserting an exception must file a petition within 60 days of the date the claim
could have been presented. See 42 Pa.C.S.A. § 9545(b)(1-2).
Instantly, Appellant styled his current petition as a PCRA petition but
argues the PCRA court erred by not construing the petition as a different
appropriate legal vehicle. Appellant’s challenge to the constitutionality of his
sex offender registration is cognizable under the PCRA. Thus, the PCRA court
properly treated Appellant’s filing as a PCRA petition. See 42 Pa.C.S.A. §
9543(a)(2)(i); Jackson, supra. Appellant’s judgment of sentence became
final on April 2, 2005, upon expiration of the time to file a direct appeal with
this Court. See Pa.R.A.P. 903(a). Appellant filed the current petition for
collateral relief on October 2, 2017, which is patently untimely. See 42
Pa.C.S.A. § 9545(b)(1). Appellant’s assertion in his PCRA petition that Muniz
satisfies the newly recognized constitutional right exception to the PCRA time-
bar fails. See Commonwealth v. Murphy, 180 A.3d 402 (Pa.Super. 2018),
appeal denied, ___ Pa. ___, ___ A.3d ___ (2018) (stating petitioner cannot
rely on Muniz to meet timeliness exception under Section 9545(b) unless and
until Supreme Court allows). Likewise, Muniz fails to satisfy the new facts
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exception to the PCRA time-bar. See Commonwealth v. Watts, 611 Pa. 80,
23 A.3d 980 (2011) (stating judicial determinations are not “facts” within
meaning of Section 9545(b)(1)(ii)). Therefore, Appellant’s petition remains
time-barred, and the PCRA court lacked jurisdiction to review it. See Zeigler,
supra. Accordingly, we affirm.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/18
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