Com. v. Hunter, B. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 HUNTER :
:
Appellant : No. 3064 EDA 2019
Appeal from the PCRA Order Entered September 30, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0208781-2004
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED: JANUARY 11, 2021
Brian Hunter (Appellant) appeals from the order dismissing as untimely
his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. Upon review, we vacate and remand.
The PCRA court summarized the procedural history of this case as
follows:
On November 22, 2003, [Appellant] was arrested and charged
with involuntary deviant sexual intercourse and related offenses
for having sexual contact with [the seven-year-old victim] in
1995. On April 4, 2005, [Appellant] entered into an open guilty
plea before the Honorable Rose Marie DeFino-Nastasi. [Appellant]
was subsequently sentenced to seven to fourteen years of
imprisonment for involuntary deviant sexual intercourse plus five
years of probation. He also received a concurrent sentence of five
years of probation for corruption of a minor.
On September 23, 2005[, Appellant] filed a Notice of Appeal to
the Superior Court. On August 8, 2006, the Superior Court
affirmed his judgment of sentence. On January 9, 2007, the
Pennsylvania Supreme Court denied allocatur. [Appellant]’s
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judgment of sentence became final on April 9, 2007, ninety days
after the Pennsylvania Supreme Court denied allocatur.
PCRA Court Opinion, 12/20/19, at 1-2 (footnotes omitted).
On September 11, 2017, Appellant filed a pro se PCRA petition. The
PCRA court appointed counsel. In his petition, Appellant sought relief from
the requirement that he register as a sex offender under Pennsylvania’s
Sexual Offender Registration and Notification Act (SORNA).1 See PCRA
Petition, 9/11/17, ¶ 20-27.2 Appellant argued that because he committed his
underlying offenses in 1995, prior to the effective dates of both SORNA and
Megan’s Law,3 his SORNA registration requirement is an ex post facto violation
of the United States and Pennsylvania Constitutions pursuant to our Supreme
Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017),
cert. denied sub nom., Pennsylvania v. Muniz, (2018). See PCRA Petition,
9/11/17, ¶ 20-27. In Muniz, the Supreme Court held the registration and
reporting requirements of SORNA constitute criminal punishment, and their
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1 42 Pa.C.S.A. §§ 9799.10–9799.41.
2 The PCRA provides “the action established in this subchapter shall be the
sole means of obtaining collateral relief and encompassing all other common
law remedies for the same purpose that exists when this subchapter takes
effect . . . .” 42 Pa.C.S.A. § 9542. Our Supreme Court has held “the PCRA
subsumes all forms of collateral relief, including habeas corpus, to the extent
a remedy is available under such enactment.” Commonwealth v.
West, 938 A.2d 1034, 1043 (Pa. 2007) (emphasis in original).
3 42 Pa.C.S.A §§ 9791–9799.9.
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retroactive application violated the ex post facto clauses of the United States
and Pennsylvania Constitutions. Id. at 1223.
On April 11, 2019, the PCRA court issued notice of its intent to dismiss
Appellant’s PCRA petition pursuant to Pennsylvania Rule of Criminal Procedure
907. On September 30, 2019, the PCRA court dismissed Appellant’s petition
as untimely. Appellant timely appealed.4
Appellant presents the following issue for our review:
Did the [PCRA] court err in failing to grant PCRA relief where the
retroactive application of the registration requirements of SORNA
and Megan’s Law to criminal acts which predated the enactment
of the original Megan’s Law constituted an illegal sentence which
violated the ex post facto clauses of the United States and
Pennsylvania Constitutions?
Appellant’s Brief at 3.
We review the denial of PCRA relief by “examining whether the PCRA
court’s findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Busanet,
54 A.3d 35, 45 (Pa. 2012). “Our scope of review is limited to the findings of
the PCRA court and the evidence of record, viewed in the light most favorable
to the party who prevailed in the PCRA court proceeding.” Id.Further, “Pennsylvania law makes clear no court has jurisdiction to hear
an untimely PCRA petition.” Commonwealth v. Monaco, 996 A.2d 1076,
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4 Both the PCRA court and Appellant have complied with Pennsylvania Rule
of Appellate Procedure 1925.
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1079 (Pa. Super. 2010) (citation omitted). A petitioner must file a PCRA
petition within one year of the date on which the petitioner’s judgment of
sentence became final, unless one of the three statutory exceptions
enumerated at 42 Pa.C.S.A. § 9545(b)(1) applies. If a petition is untimely,
and the petitioner has not pled and proven an exception, “neither this Court
nor the trial court has jurisdiction over the petition. Without jurisdiction, we
simply do not have the legal authority to address the substantive claims.”
Commonwealth v. Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007)
(citation omitted).
Appellant filed his petition on September 11, 2017, more than ten years
after his judgment of sentence became final. Thus, the PCRA court treated it
as a facially untimely PCRA petition.
Recently, in Commonwealth v. Lacombe, 234 A.3d 602 (Pa. 2020),
our Supreme Court discussed the correct way to challenge sex offender
registration status, and concluded there was no one mechanism. Lacombe,
234 A.3d at 617. The Court noted that frequent changes to the relevant
statutes, along with complicated requirements and retroactive applications,
made it difficult to establish a single means to challenge requirements which
are imposed years after the judgment of sentence becomes final. Id. at 617-
18. The Court stated, “we decline to find the PCRA, or any other procedural
mechanism, is the exclusive method for challenging sexual offender
registration statutes and we thus conclude the trial court had jurisdiction to
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consider Lacombe’s ‘Petition to Terminate His Sexual Offender Registration
Requirements.’” Id. at 618.
This Court recently interpreted Lacombe, and held that the trial court
erred in treating a pleading seeking removal from SORNA registry
requirements as an untimely PCRA petition. Commonwealth v. Smith, ---
A.3d ---, 2020 WL 5755494, at *2 (Pa. Super. Sep. 28, 2020). We stated:
[T]he Lacombe Court expressly declined “to find the PCRA, or any
other procedural mechanism is the exclusive method for
challenging sexual offender registration statutes[.]” Lacombe
[234 A.3d at 618]. According to the Court, an offender’s
requirements change frequently and may be retroactively
applicable. See id. Thus, the strict jurisdictional requirements of
the PCRA render it unsuitable, because many registrants will be
ineligible for relief on timeliness grounds or because their criminal
sentence has expired while their registration requirements
continue. See id.
For these reasons, we conclude that Appellant’s Motion for
Removal was not an untimely PCRA petition. His substantive
claims challenging the application of Subchapter I of SORNA II’s
lifetime registration requirements are not cognizable under the
PCRA and, thus, not subject to its time-bar. We therefore vacate
the lower court’s Order and remand for the court to consider his
claims in the first instance.
Id. at *3.
Instantly, Appellant filed a facially untimely PCRA petition challenging
his SORNA registration requirements. This Court, in three recent
memorandums, has relied on Lacombe and Smith to conclude that PCRA
petitions challenging sex offender registration requirements should be
addressed on the merits and not dismissed as untimely. See
Commonwealth v. Richards, 2020 WL 6581196, at *4 (123 8 WDA 2020)
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(Pa. Super. Nov. 10, 2020); Commonwealth v. King, 2020 WL 6581194,
**4-5 (2636 EDA 2019) (Pa. Super. Nov. 10, 2020); Commonwealth v.
Puterbaugh, 2020 WL 6581308, at *8 (1388 MDA 2020) (Pa. Super. Nov.
10, 2020).5
Consistent with the foregoing, and because the PCRA court in this case
did not address the merits of Appellant’s claim, we vacate the order and
remand for the PCRA court to address the merits.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/21
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5Pennsylvania Rule of Appellate Procedure 126 was amended to allow citation
of non-precedential unpublished memorandum decisions of this Court for their
persuasive value, so long as the decisions were filed after May 1, 2019. See
Order Amending Rule 126 of the Pennsylvania Rules of Appellate Procedure,
No. 278 (Pa. 2019).
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