Com. v. Haberman, R. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ROBERT HABERMAN :
:
Appellant : No. 1465 MDA 2019
Appeal from the PCRA Order Entered August 9, 2019,
in the Court of Common Pleas of Franklin County,
Criminal Division at No(s): CP-28-CR-0000076-2012.
BEFORE: SHOGAN, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 17, 2020
Robert Haberman appeals from the order denying his petition for relief
filed pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.
Haberman sexually abused his stepdaughter from approximately 2001
to 2007. In 2012, when the abuse was reported, police charged Haberman
with rape by forcible compulsion and other sex crimes. In 2014, Haberman
entered a negotiated guilty plea to one count of rape by forcible compulsion.
The trial court deferred sentencing pending an assessment of Haberman by
the Sexual Offenders Assessment Board (“SOAB”), and a sexually violent
predator (“SVP”) hearing. In 2015, the trial court determined that Haberman
is an SVP and sentenced him to five to ten years of incarceration for rape.
This Court affirmed Haberman’s judgment of sentence, and our Supreme
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1 See 42 Pa.C.S.A. §§ 9541-9546.
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Court denied allowance of appeal on March 23, 2016. See Commonwealth
v. Haberman, 134 A.3d 101 (Pa. Super. 2015) (unpublished memorandum),
appeal denied, 135 A.3d 583 (Pa. 2016).
In 2018, Haberman filed a pro se motion to revoke his SVP designation.
The lower court treated that filing as a PCRA petition.2 The PCRA court
appointed Haberman counsel, who filed an amended PCRA petition challenging
the constitutionality of his designation as an SVP. The PCRA court issued
notice of its intent to dismiss the petition without a hearing. Haberman filed
a response to the notice. The PCRA court conducted a hearing on the petition.
Thereafter, the parties submitted additional briefing on the issue. On August
9, 2019, the PCRA court dismissed the petition on the basis that it was
untimely and the court lacked jurisdiction to address the claim. Haberman
filed a timely notice of appeal, and both he and the PCRA court complied with
Pa.R.A.P. 1925.
Haberman raises the following issue for our review: “Did the PCRA court
err in denying [Haberman’s] amended motion for [PCRA] relief . . . on
jurisdictional grounds?” Haberman’s Brief at 8 (some capitalization omitted).
Pursuant to our standard of review:
We review an order dismissing a petition under the PCRA in
the light most favorable to the prevailing party at the PCRA level.
This review is limited to the findings of the PCRA court and the
evidence of record. We will not disturb a PCRA court’s ruling if it
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2 See Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013)
(holding that all motions filed after a judgment of sentence has become final
are to be construed as PCRA petitions).
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is supported by evidence of record and is free of legal error. This
Court may affirm a PCRA court’s decision on any grounds if the
record supports it. Further, we grant great deference to the
factual findings of the PCRA court and will not disturb those
findings unless they have no support in the record. However, we
afford no such deference to its legal conclusions. Where the
petitioner raises questions of law, our standard of review is de
novo and our scope of review plenary.
Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations
omitted).
Under the PCRA, any petition “shall be filed within one year of the date
the judgment becomes final[.]” 42 Pa.C.S.A. § 9545(b)(1). A judgment
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 time for seeking the review.” Id.
§ 9545(b)(3); see also U.S.Sup.Ct.R. 13.1. The PCRA’s timeliness
requirements are jurisdictional in nature, and a court may not address the
merits of the issues raised if the PCRA petition was not timely filed.
Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa. 2010). However,
Pennsylvania courts may consider an untimely PCRA petition if the petitioner
can explicitly plead and prove one of the three exceptions set forth under 42
Pa.C.S.A. § 9545(b)(1).
It does not appear from the record that Haberman sought review in the
Supreme Court of the United States. Accordingly, his judgment of sentence
became final on June 21, 2016, which was 90 days after the Pennsylvania
Supreme Court denied his petition for allowance of appeal and his time for
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filing a petition for writ of certiorari to the United States Supreme Court
expired.3 See U.S.Sup.Ct.R. 13.1. Haberman therefore had until June 21,
2017, to file the instant petition. However, he did not do so until September
20, 2018.
In the PCRA court, Haberman acknowledged that his petition was facially
untimely, since it was filed beyond the PCRA’s one-year time bar. However,
Haberman argued that he satisfied the timeliness exception provided by
§ 9545(b)(1)(iii), which permits a PCRA court to consider an untimely petition
if the petitioner alleges and proves that “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)(iii). Specifically, Haberman argued in his petition that he was
entitled to PCRA relief based on the holdings of Commonwealth v. Muniz,
164 A.3d 1189 (Pa. 2017) (holding that the registration provisions of
Pennsylvania’s Sex Offender Registration and Notification Act (“SORNA”), 42
Pa.C.S.A. §§ 9799.10-9799.41, are punitive, and that retroactive application
of those provisions violates federal and state ex post facto clauses), and
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3 We note that, in its opinion, the PCRA court incorrectly stated several critical
dates, including the date on which our Supreme Court denied allowance of
appeal. See PCRA Court Opinion, 8/9/19, at 2. Consequently, the PCRA court
incorrectly calculated the date on which Haberman’s judgment of sentence
became final. See id. Despite this miscalculation, however, the PCRA court
correctly found the PCRA petition untimely.
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Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super. 2017) (holding that
the portion of SORNA that permits a trial court to find a defendant to be an
SVP by clear and convincing evidence is unconstitutional, and that trial courts
can no longer designate defendants as SVPs or hold SVP hearings until our
General Assembly enacts a constitutional designation mechanism).
Haberman concedes that, at the time he filed his pro se petition on
September 20, 2018, the PCRA required that any petition invoking the newly-
recognized constitutional right exception to the timeliness requirement “shall
be filed within 60 days of the date the claim could have been presented.” 42
Pa.C.S.A. § 9545(b)(2) (effective until December 23, 2017). As Muniz was
decided on July 19, 2017, and Butler was decided on October 31, 2017,
Haberman recognizes that his petition was filed beyond the sixty–day time
period provided by the then-applicable version of § 9545(b)(2).
Nevertheless, Haberman claims that his petition was not untimely. He
points out that § 9545(b)(2) was amended, effective December 24, 2017, to
extend the time period in which to file a petition asserting a newly recognized
constitutional right from sixty days to one year. He claims that, because his
petition was filed within one year of the Butler decision, his petition is timely
pursuant to the amended version of § 9545(b)(2). He additionally points out
that our Supreme Court has accepted review of Butler but has not yet
rendered a decision in that case. Haberman posits that, should our Supreme
Court affirm this Court’s ruling in Butler, the “recognized date” of his averred
constitutional right would be the date of a decision by the Supreme Court.
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Finally, Haberman acknowledges that, in order for him to invoke a
newly-recognized constitutional right, it must be held to apply retroactively by
either the United States Supreme Court or the Pennsylvania Supreme Court.
See 42 Pa.C.S.A. § 9445(1)(iii). He claims that, in Commonwealth v.
Rivera-Figueroa, 174 A.3d 674 (Pa. Super. 2017), this Court ruled that
Muniz announced a new constitutional right that applies retroactively to
collateral review proceedings. He further argues that the Pennsylvania
Supreme Court has implicitly recognized that Muniz applies retroactively by
vacating this Court’s decision in Commonwealth v. Polzer, 153 A.3d 1116
(Pa. Super. 2016), allocatur granted in part and denied in part, 182 A.3d 431
(Pa. 2018) (granting review on the question of whether SORNA’s internet
notification provision and quarterly verification requirements violate due
process and ex post facto clauses where the defendant is not an SVP).
The PCRA court considered Haberman’s arguments, but ultimately
determined that the petition was untimely filed and that Haberman failed to
establish any exception to the PCRA’s time bar. It reasoned as follows:
[Haberman’s] claim that the recent amendment of 42
Pa.C.S.A. § 9545(b)(2) is applicable to his PCRA claim is refuted
by the text of 42 Pa.C.S.A. § 9545 and the text of Act 2018, P.L.
894, No. 146. First, the Superior Court’s decision in Rivera-
Figueroa does not trigger the timeliness exception laid out in the
statute:
“[T]he 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.”
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42 Pa.C.S.A. § 9545(b)(1)(iii) (emphasis added). [Haberman]
has not averred that the Supreme Court of the United States or
the Supreme Court of Pennsylvania has held that the
constitutional right articulated in Muniz is to apply retroactively
for collateral claims purposes. Muniz, 164 A.3d at 1218.
Second, Section 3 of Act 2018, October 24, P.L. 894, No 146
explicitly provides that “the amendment of subsec. (b)(2) by that
Act [whereby the filing deadline for newly established
constitutional rights was extended from 60 days to 1 year] shall
apply to claims arising on Dec. 24, 2017 or thereafter.” According
to [Haberman’s] theory, the Superior Court’s decision in Rivera-
Figueroa issued November 14, 2017, gave rise to [Haberman’s]
claim. This [c]ourt disagrees. The Rivera-Figueroa decision was
issued prior to the December 24, 2017 date articulated in Section
3 of Act 2018 requiring the PCRA claim to be filed within 60 days
of November 14, 2017 to meet the timeliness exception required
to remain in keeping with [Haberman’s] theory of timeliness. It
is clear that even according to [Haberman’s] erroneous legal
theory that Rivera-Figueroa provides a timeliness exception for
[him], the claim is still untimely.
PCRA Court Opinion, 8/9/19/ at 5-6 (emphasis in original).
We discern no abuse of discretion or error of law by the PCRA court in
concluding that Haberman’s petition is untimely, and that it lacked jurisdiction
to address his claim because he did not satisfy any exception to the PCRA’s
one-year time bar. Although this Court ruled in Rivera-Figueroa that Muniz
created a substantive rule that retroactively applies in the collateral context,
such holding was limited to timely-filed PCRA petitions. See Rivera-
Figueroa, supra. Haberman’s petition was not timely filed; thus, Rivera-
Figueroa does not apply.
Moreover, even if the ruling in Rivera-Figueroa applied to untimely
filed PCRA petitions, it would afford Haberman no relief, as a ruling by this
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Court is insufficient for purposes of 42 Pa.C.S.A. § 9545(b)(1)(iii). A newly
recognized constitutional right must be held to apply retroactively by the
United States Supreme Court or the Pennsylvania Supreme Court. See id.
To date, our Supreme Court has not ruled that Muniz applies retroactively to
untimely PCRA petitions. For this reason, this Court has held on multiple
occasions that Muniz does not provide an exception to the PCRA’s timeliness
requirements. See id.; see also Commonwealth v. Murphy, 180 A.3d 402,
406 (Pa. Super. 2018) (holding that, because the Pennsylvania Supreme Court
has not held that Muniz applies retroactively, appellant could not rely on
Muniz to satisfy the PCRA’s timeliness requirements).
Finally, with regard to Haberman’s argument regarding Butler, we note
that at the time he filed the instant appeal, our Supreme Court had granted
allowance of appeal in Butler to address whether this Court erred in vacating
the trial court’s order finding the defendant to be an SVP by extrapolating the
decision in Muniz to declare SVP hearings and designations unconstitutional.
See Butler, 190 A.3d 581 (Pa. 2018). While this appeal was pending,
however, our Supreme Court issued its opinion in Butler, wherein it
determined that the registration requirements applicable to SVPs do not
constitute criminal punishment, and reversed this Court’s holding otherwise.
See Commonwealth v. Butler, 2020 Pa. LEXIS 1692 (Pa. 2020). Thus,
Haberman’s reliance on this Court’s ruling in Butler is moot.
In sum, because Haberman’s PCRA petition was untimely filed, and he
failed to satisfy any exception to the PCRA’s time bar, the PCRA court patently
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lacked jurisdiction to address it. See Commonwealth v. Leggett, 16 A.3d
1144, 1145 (Pa. Super. 2011) (holding that neither this Court nor the PCRA
court has jurisdiction to address the merits of an untimely-filed petition); see
also Commonwealth v. Jackson, 30 A.3d 516, 523 (Pa. Super. 2011)
(holding that, where the petition was not timely filed, and the petitioner did
not establish any of the statutory exceptions to § 9545, the PCRA court had
no jurisdiction to offer any form of relief); Commonwealth v. Jones, 932
A.2d 179, 182 (Pa. Super. 2007) (holding that where a petitioner files an
untimely PCRA petition raising a legality of sentence claim, the jurisdictional
limits of the PCRA render the claim incapable of review). Having recognized
its lack of statutory jurisdiction to grant Haberman relief, the PCRA court
properly dismissed his petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/17/2020
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