J-S41037-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
MICHAEL B. STAHLEY,                       :
                                          :
                 Appellant                :     No. 22 MDA 2019

          Appeal from the PCRA Order Entered December 5, 2018
             in the Court of Common Pleas of Franklin County
           Criminal Division at No(s): CP-28-CR-0000910-2004

BEFORE:     LAZARUS, J., MURRAY, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:           FILED SEPTEMBER 11, 2019

      Michael B. Stahley (Appellant) appeals from the December 5, 2018

order dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. Upon review, we affirm.

      A prior panel of this Court provided the following history.

             A jury found Appellant guilty of forcible rape, involuntary
      deviate sexual intercourse, simple assault, burglary, terroristic
      threats, and theft arising from a break-in and sexual assault that
      occurred on or about May 21, 2004. On October 2, 2006, the
      trial court adjudicated Appellant a sexually violent predator [],
      and imposed an aggregate sentence of [22½ to 47½ years of]
      imprisonment.     This Court affirmed Appellant’s judgment of
      sentence. Commonwealth v. Stahley, 965 A.2d 303 (Pa.
      Super. 2008) (unpublished memorandum). The Pennsylvania
      Supreme Court denied Appellant’s petition for allowance of
      appeal on May 2, 2011. Appellant’s judgment of sentence
      became final, therefore, on August 1, 2011.




*Retired Senior Judge assigned to the Superior Court.
J-S41037-19


Commonwealth v. Stahley, 159 A.3d 599 (Pa. Super. 2016) (unpublished

memorandum at 1-2) (unnecessary capitalization and some citations

omitted).

     Thereafter,   Appellant   filed   several   unsuccessful   PCRA   petitions.

Relevant to this appeal, Appellant filed a petition for writ of habeas corpus

on November 13, 2017, alleging PCRA court error and ineffective assistance

of counsel.   Appellant subsequently filed a PCRA petition on January 26,

2018, averring that he was entitled to relief pursuant to Commonwealth v.

Muniz, 164 A.3d 1189 (Pa. 2017).1 Pro se PCRA Petition, 1/26/2018, at 4;

see generally Brief in Support of PCRA Relief, 1/26/2018 (unnumbered).

As such, Appellant sought “to be removed from the Megan’s Law and SORNA

registry because it is unconstitutional and cannot be applied retroactively to

[him], and no law now exists[.]”       Pro se PCRA Petition, 1/26/2018, at 6

(unnecessary capitalization omitted). The PCRA court treated both filings as

PCRA petitions, and on November 15, 2018, issued notice of its intent to

dismiss the petitions without a hearing, pursuant to Pa.R.Crim.P. 907. On




1 In Muniz, our Supreme Court held that certain registration provisions of
Pennsylvania’s Sex Offender Registration and Notification Act (SORNA), 42
Pa.C.S. §§ 9799.10-9799.42, are punitive and therefore retroactive
application of those provisions violates the ex post facto clauses of the
Pennsylvania and United States constitutions.



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December 5, 2018, the PCRA court dismissed Appellant’s petitions as

untimely filed. 2

      This timely-filed notice of appeal followed.3    On appeal, Appellant

raises two issues for our review.

    1. The motion Memorandum of Law and Averments[4] shows the fact that
       the appeal was timely and within the 60 day new evidence rule. Which
       is not a PCRA petition.

    2. The requirements to register under SORNA included in his sentence
       violates the Defendant’s Constitutional rights.

Appellant’s Brief at 3 (verbatim).

      Appellant first claims the PCRA court erred by treating his petitions as

PCRA petitions.

      It is well-settled that the PCRA is intended to be the sole means
      of achieving post-conviction relief. Unless the PCRA could not
      provide for a potential remedy, the PCRA statute subsumes
      the writ of habeas corpus. Issues that are cognizable under the
      PCRA must be raised in a timely PCRA petition and cannot be

2 Appellant timely mailed a response, but it was not docketed until the day
after the PCRA court dismissed Appellant’s petitions.
3 Both Appellant and the PCRA court complied with Pa.R.A.P. 1925. The
PCRA court additionally referred this Court to its November 15, 2018 order,
detailing its reasoning for dismissing Appellant’s petitions. Opinion sur
Pa.R.A.P. 1925(a) and Order of Court, 1/31/2019, at 2.
4 This appears to be a reference to Appellant’s response to the PCRA court’s
notice of intent to dismiss. Although largely incomprehensible and spanning
only four sentences, his response purports to argue that the petition (it is
unclear which one) was not a PCRA petition and therefore not subject to the
PCRA’s rules, but was nonetheless within the time limits of the 60-day “new
evidence rule.” Answer to Show Cause for Intent to Dismiss Memorandum
of Law and Averments, 12/6/2018.



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      raised in a habeas corpus petition.      Phrased differently, a
      defendant cannot escape the PCRA time-bar by titling his
      petition or motion as a writ of habeas corpus.

Commonwealth v. Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013).

      The November 13, 2017 petition for writ of habeas corpus raised

claims of ineffective assistance of counsel, which are cognizable under the

PCRA, and therefore must be raised in a PCRA petition.       Id.   Additionally,

the January 26, 2018 petition challenged the application of SORNA’s

registration provisions pursuant to Muniz. Such a claim, which implicates

the legality of Appellant’s sentence, is also cognizable under the PCRA, and

therefore must be raised in a PCRA petition. See Commonwealth v Greco,

203 A.3d 1120, 1123 (Pa. Super. 2019) (holding that claims challenging

application   of     SORNA’s     registration   provisions   and    “invocation

of Muniz implicate[] the legality of [the] sentence, which is an issue

cognizable under the PCRA and, therefore, subject to the PCRA’s timeliness

requirements”).    Accordingly, the PCRA court properly treated Appellant’s

petitions as PCRA petitions and his first claim fails.

      Before reaching the merits of Appellant’s second claim, we must first

consider whether Appellant has timely filed his petitions, as neither this

Court nor the PCRA court has jurisdiction to address the merits of an

untimely-filed petition.   Commonwealth v. Leggett, 16 A.3d 1144, 1145

(Pa. Super. 2011).




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        Any PCRA petition, including second and subsequent petitions, must

either (1) be filed within one year of the judgment of sentence becoming

final, or (2) plead and prove a timeliness exception. 42 Pa.C.S. § 9545(b).

Furthermore, the petition “shall be filed within 60 days of the date the claim

could have been presented.” 42 Pa.C.S. § 9545(b)(2).5

        “For purposes of [the PCRA], a judgment [of sentence] 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.”             42 Pa.C.S.

§ 9545(b)(3).     Here, as detailed supra, Appellant’s judgment of sentence

became final on August 1, 2011, following the expiration of time for seeking

review before the United States Supreme Court. Appellant had one year, or

until August 1, 2012, to file timely a PCRA petition. Thus, Appellant’s 2017

and 2018 petitions are facially untimely, and he was required to plead and

prove an exception to the timeliness requirements.

        In his petition, Appellant attempts to plead the new-retroactive-right

exception,6 by invoking Muniz and its progeny. Appellant’s Brief at 7. This


5 This subsection was recently amended, effective December 24, 2018, to
extend the time for filing from 60 days of the date the claim could have been
presented to one year. However, this amendment does not apply to
Appellant’s PCRA petition because it was filed prior to the amendment’s
effective date.

6   This exception provides as follows.
(Footnote Continued Next Page)


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Court considered whether Muniz applies under similar circumstances in

Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super. 2018).                   In that

case, Murphy was convicted of a number of sex-related crimes in 2007, and

after review, his judgment of sentence became final on July 28, 2009. On

October 18, 2017, while a serial PCRA petition was pending in this Court,

Murphy filed a motion asserting that Muniz rendered portions of his

sentence unconstitutional.               In considering that argument, this Court

acknowledged that

      this Court has declared that, “Muniz created a substantive rule
      that   retroactively  applies   in  the   collateral context.”
(Footnote Continued)   _______________________




      Any petition under this subchapter, including a second or
      subsequent petition, shall be filed within one year of the date the
      judgment becomes final, unless the petition alleges and the
      petitioner proves that:

                                                 ***

             (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. § 9545(b)(1)(iii).

      On appeal, Appellant also attempts to invoke, without any elaboration,
the newly-discovered facts exception set forth at subsection 9545(b)(1)(ii).
See Appellant’s Brief at 7. This argument was not raised before the PCRA
court, and thus it is waived. See Commonwealth v. Burton, 936 A.2d
521, 525 (Pa. Super. 2007) (“[E]xceptions to the time bar must be pled in
the PCRA petition, and may not be raised for the first time on appeal.”).



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      Commonwealth v. Rivera–Figueroa, 174 A.3d 674, 678 (Pa.
      Super. 2017). However, because [Murphy’s] PCRA petition is
      untimely (unlike the petition at issue in Rivera–Figueroa), he
      must demonstrate that the Pennsylvania Supreme Court has
      held that Muniz applies retroactively in order to satisfy
      [sub]section 9545(b)(1)(iii). Because at this time, no such
      holding has been issued by our Supreme Court, [Murphy] cannot
      rely on Muniz to meet th[e third] timeliness exception.

Murphy, 180 A.3d at 405-06 (emphasis in original; some citations omitted).

      Because neither our Supreme Court nor the United States Supreme

Court has held that Muniz applies retroactively, the holding in Muniz does

not apply at this point to untimely-filed PCRA petitions.       This Court

acknowledges that “if the Pennsylvania Supreme Court [or the United States

Supreme Court] issues a decision holding that Muniz applies retroactively,

Murphy can then file a PCRA petition, within [one year] of that decision,

attempting to invoke the ‘new retroactive right’ exception in [sub]section

9545(b)(1)(iii).” Murphy, 180 A.3d at 406 n.1.

      Based on the foregoing, we conclude that Appellant’s petitions were

filed untimely, and he has not proven an exception to the timeliness

requirements.   Thus, he is not entitled to relief.   See Commonwealth v.

Albrecht, 994 A.2d 1091, 1095 (Pa. 2010) (affirming dismissal of PCRA

petition without a hearing because the appellant failed to meet burden of

establishing timeliness exception).




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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/11/2019




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