Com. v. Schaffner, B. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BRIAN ALEX SCHAFFNER, :
:
Appellant. : No. 610 WDA 2018
Appeal from the Order, March 28, 2018,
in the Court of Common Pleas of Allegheny County,
Criminal Division at No(s): CP-02-CR-0005883-2000.
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 01, 2019
Brian Alex Schaffner appeals from the order denying as untimely his
serial petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 42
Pa.C.S.A. §§ 9541-46. We affirm.
The pertinent facts and procedural history are as follows: On July 26,
2000, Schaffner entered a negotiated guilty plea to one count each of
aggravated indecent assault, indecent assault, and corruption of minors.
These charges resulted from acts he perpetrated upon his girlfriend’s nine-
year-old niece. On October 20, 2000, the trial court sentenced Schaffner to
the negotiated 2 ½ to 5 year sentence. In addition, the trial court designated
Schaffner a sexually violent predator. Schaffner therefore was required to
comply with the registration, verification, counseling, and notification
provisions of Megan’s Law II. 42 Pa.C.S.A. §§ 9791-99 (expired).
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Schaffner filed a timely appeal to this Court. In an unpublished
memorandum filed on February 19, 2004, we affirmed his judgment of
sentence, and on September 29, 2004, our Supreme Court denied his petition
for allowance of appeal. Commonwealth v. Schaffner, 849 A.2d 609 (Pa.
Super. 2004), appeal denied, 859 A.2d 768 (Pa. 2004). While this appeal was
pending, Schaffner filed a pro se PCRA petition, which the PCRA court
dismissed without prejudice.
On August 30, 2005, Schaffner filed another pro se PCRA petition, and
the PCRA court appointed counsel. On September 20, 2006, PCRA counsel
filed a no-merit letter and motion to withdraw as counsel pursuant to the
dictates of Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). On
October 3, 2006, the PCRA court issued Pa.R.Crim.P. 907 notice of its intention
to dismiss Schaffner’s PCRA petition and granted PCRA counsel’s motion to
withdraw. Schaffner did not file a response. By order entered October 25,
2006, the PCRA court dismissed the petition.
No further action appears in the certified record until September 18,
2017, when counsel filed a “Petition to Remove Defendant from the
Registration and Reporting Requirements” of the Sex Offender Registration
and Notification Act (“SORNA”). On February 28, 2018, the Commonwealth
filed an answer. Treating the filing as a serial PCRA petition, the PCRA court
issued, on March 22, 2018, Pa.R.Crim.P. 907 notice of its intention to dismiss
the petition as untimely. Schaffner filed a timely response. By order entered
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March 28, 2018, the PCRA court denied the petition. This appeal follows. The
PCRA Court did not require Pa.R.A.P. 1925 compliance.
Schaffner raises the following issues on appeal:
I. Whether the PCRA court erred in finding Schaffner’s
petition to remove him from the SORNA registration
and reporting requirements was time barred?
II. Whether the PCRA court erred in failing to allow
Schaffner to advance the claim that Act 10 of 2018 is
unconstitutional?
Schaffner’s Brief at 4.
Initially, we note that the trial court correctly treated Schaffner’s 2017
filing as a serial PCRA petition. In response to the PCRA court’s Rule 907
notice, Schaffner cited this Court’s decision in Commonwealth v. Partee, 86
A.3d 245 (Pa. Super. 2014), to argue that his petition should not be treated
under the PCRA. In the alternative, Schaffner argued that his filing could be
considered as a petition for habeas corpus relief. Finally, Schaffner argued
that if the filing was to be treated under the PCRA, he had proven an exception
to the PCRA’s time bar in that he filed his petition within sixty days of our
Supreme Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa.
2017), which recognized a new constitutional right.
Schaffner’s reliance upon this Court’s decision in Partee, supra, is
misplaced, as his filing did not request specific enforcement of a plea
agreement he made with the Commonwealth. Additionally, “this Court has
consistently held that, pursuant to the plain language of Section 9542, where
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a claim is cognizable under the PCRA, the PCRA is the only method of obtaining
collateral review. See Commonwealth v. Turner, 622 Pa. 318, 80 A.3d
754, 770 (2013) (“The PCRA at Section 9542 subsumes the remedies of
habeas corpus and coram nobis.”) Therefore, Schaffner’s characterization of
his request as a habeas corpus petition is incorrect. Thus, we will address
Schaffner’s remaining claim, that although untimely, he has met an exception
to the PCRA’s time bar.
This Court’s standard of review regarding an order dismissing a petition
under the PCRA is whether the determination of the PCRA court is supported
by the evidence of record and is free of legal error. Commonwealth v.
Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA court’s findings will not
be disturbed unless there is no support for the findings in the certified record.
Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super. 2001).
The timeliness of a post-conviction petition is jurisdictional.
Commonwealth v. Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013).
Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
becomes final unless the petition alleges, and the petitioner proves, that an
exception to the time for filing the petition, set forth at 42 Pa.C.S.A. sections
9545(b)(1)(i), (ii), and (iii), is met.1 42 Pa.C.S.A. § 9545. A PCRA petition
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1 The exceptions to the timeliness requirement are:
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invoking one of these statutory exceptions must “be filed within 60 days of
the date the claims could have been presented.” See Hernandez, 79 A.3d
651-52 (citations omitted); see also 42 Pa.C.S.A. § 9545(b)(2). Finally,
exceptions to the PCRA’s time bar must be pled in the petition, and may not
be raised for the first time on appeal. Commonwealth v. Burton, 936 A.2d
521, 525 (Pa. Super. 2007); see also Pa.R.A.P. 302(a) (providing that issues
not raised before the lower court are waived and cannot be raised for the first
time on appeal).
Here, Schaffner’s judgment of sentence became final on December 28,
2004, ninety days after he failed to file a writ of certiorari to the United States
Supreme Court after the Pennsylvania Supreme Court denied his petition for
allowance of appeal on September 29, 2004. See 42 Pa.C.S.A. § 9545(b)(3);
U.S .Sup.Ct.R. 13. Thus, in order to be timely, Schaffner had to file his PCRA
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(i) the failure to raise the claim previously was the result of
interference of 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)(1)(i), (ii), and (iii).
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petition by December 28, 2005. As he filed the petition at issue in 2017, it is
untimely, unless Schaffner satisfied his burden of pleading and proving that
one of the enumerated exceptions applies. See Hernandez, supra.Schaffner has failed to establish any exception to the PCRA’s time bar.
As noted above, he claims that the Muniz decision establishes the “newly
recognized constitutional right exception to the PCRA’s time bar pursuant to
Section 9545(b)(1)(iii). Schaffner also notes that he filed his petition within
sixty days of the Muniz decision. 42 Pa.C.S.A. § 9545(b)(2). In Muniz, the
Pennsylvania Supreme Court held that SORNA’s registration provisions
constituted criminal punishment that cannot be retroactively applied to a
defendant whose crimes were committed prior to SORNA’s enactment.
The Muniz decision does not entitle Schaffner to post-conviction relief.
This Court has held that “the recent holding in Muniz created a substantive
rule that retroactively applies in the collateral context.” Commonwealth v.
Rivera-Figueroa, 174 A.3d 674, 678 (Pa. Super. 2017). However, because
Schaffner’s PCRA petition was untimely, unlike the timely PCRA petition at
issue in Rivera-Figueroa, he must demonstrate that the Pennsylvania
Supreme Court has held Muniz applies retroactively to untimely PCRA
petitions in order to satisfy Section 9545(b)(1)(iii). Because our Supreme
Court has yet to reach this conclusion, he cannot rely on Muniz to establish
that time-bar exception. See Commonwealth v. Murphy, 180 A.3d 402,
405-06 (Pa. Super. 2018). However, if our Supreme Court issues a decision
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holding that Muniz applies retroactively, Schaffner may file another PCRA
petition within one year of that decision, attempting to invoke a time-bar
exception in subsection 9545(b)(1)(iii). See Act of 2018, October 24, P.L.
894, No. 146, §§ 2 and 3 (recent amendment to the PCRA); see also
Commonwealth v. Murphy, 180 A.3d at 406 n.1.
In light of the foregoing, we conclude that Schaffner’s PCRA petition was
untimely filed, and he has not pled and proven an exception to the PCRA’s
timeliness requirements. As such, the PCRA court correctly concluded that it
lacked jurisdiction,2 and we affirm the court’s order denying Schaffner post-
conviction relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/01/2019
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2 Because Schaffner’s petition was time-barred, he also cannot proceed with
the constitutional claim he raises in his second issue.
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