Com. v. Brown, A.

J-S75027-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

ALLEN BROWN :

:

Appellant : No. 916 WDA 2019

Appeal from the PCRA Order Entered June 6, 2019,

in the Court of Common Pleas of Allegheny County,

Criminal Division at No(s): CP-02-CR-0008971-2005.

BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 10, 2020

Allen Brown appeals from the order denying his serial petition filed

pursuant to the Post Conviction Relief Act (“PCRA”).1 We affirm.

In 2007, Brown was convicted of numerous sexual offenses involving

his daughter, including rape, incest, statutory sexual assault, and endangering

the welfare of children. On August 16, 2007, the trial court sentenced Brown

to an aggregate term of nine to eighteen years in prison. This Court affirmed

the judgment of sentence, and our Supreme Court denied allowance of appeal

on July 7, 2009. See Commonwealth v. Brown, 968 A.2d 786 (Pa. Super.

2009) (unpublished memorandum), appeal denied, 980 A.2d 109 (Pa. 2009).

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* Retired Senior Judge assigned to the Superior Court.

1 See 42 Pa.C.S.A. § 9541-9546.

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Brown thereafter filed two PCRA petitions and a petition for writ of habeas

corpus, all of which were denied.

On January 17, 2018, Brown filed the instant pro se PCRA petition. The

PCRA court appointed counsel, who filed an amended petition. Therein, Brown

argued that his registration requirements under the Sexual Offender

Notification and Registration Act (“SORNA”), see 42 Pa.C.S.A. §§ 9799.10-

9799.42, violate federal and state constitutional prohibitions on ex post facto

criminal punishments. On January 29, 2019, the PCRA court granted relief,

and ruled that Brown was not required to register under SORNA.

The Commonwealth filed a timely motion for reconsideration with the

PCRA court, but did not file an appeal to this Court within the thirty-day appeal

period. In his response to the Commonwealth’s reconsideration motion,

Brown argued that, since thirty days had elapsed since the entry of the

January 29, 2019 order granting PCRA relief, and the PCRA court did not

expressly grant reconsideration in that thirty-day period, the PCRA court

lacked jurisdiction to modify or rescind that order under 42 Pa.C.S.A. § 5505.2

Notably, the January 29, 2019 order granting PCRA relief was entered by a

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2 Pursuant to § 5505, “[e]xcept as otherwise provided or prescribed by law, a

court upon notice to the parties may modify or rescind any order within 30

days after its entry, notwithstanding the prior termination of any term of court,

if no appeal from such order has been taken or allowed.” 42 Pa.C.S.A. § 5505.

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judge who retired from the bench shortly thereafter. The case was thereafter

reassigned to another judge.

On June 6, 2019, the new judge presiding in the PCRA court entered an

order vacating the January 29, 2019 order that previously granted PCRA relief.

Brown filed a timely notice of appeal. Both Brown and the PCRA court

complied with Pa.R.A.P. 1925.

Brown raises one issue for our review:

Did Judge Tranquilli lack jurisdiction to enter his June 6, 2019

Order vacating Judge McDaniel’s January 29, 2019 order granting

Brown’s amended PCRA petition and/or petition for writ of habeas

corpus, and effectively dismissing Brown’s amended PCRA petition

and/or petition for writ of habeas corpus?

Brown’s Brief at 5 (some capitalization omitted).

The crux of Brown’s argument is that, pursuant to § 5505, the PCRA

court was divested of jurisdiction to modify or rescind its January 29, 2019

order because thirty days had elapsed since the entry of that order. The PCRA

court maintains that it had the inherent authority to vacate the January 29,

2019 order. It opined that the original PCRA judge lacked statutory

jurisdiction under the PCRA to enter that order. See PCRA Court Order,

6/11/19, at 2-3 (unnumbered).

The question herein presented, regarding the power of courts to correct

allegedly illegal sentencing orders absent jurisdiction pursuant to the PCRA or

the court’s inherent authority under 42 Pa.C.S.A. § 5505, is a question of law.

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Commonwealth v. Holmes, 933 A.2d 57, 65 (Pa. 2007). Accordingly, our

scope of review is plenary and our standard of review is de novo. Id.

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.” 42

Pa.C.S.A. § 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 Brown sought review in the

Supreme Court of the United States. Accordingly, his judgment of sentence

became final on October 5, 2009, which was 90 days after the Pennsylvania

Supreme Court denied his petition for allowance of appeal and his time for

filing a petition for writ of certiorari to the United States Supreme Court

expired. See U.S.Sup.Ct.R. 13.1. Brown therefore had until October 5, 2010

to file the instant petition. However, he did not do so until January 17, 2018.

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In the PCRA court, Brown acknowledged that his petition was facially

untimely, since it was filed beyond the PCRA’s one-year time bar. However,

Brown 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, Brown 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 that SORNA’s registration provisions

are punitive, and that retroactive application of those provisions violates

federal and state ex post facto clauses), and Commonwealth v.

Derhammer, 173 A.3d 723 (Pa. 2017) (holding that appellant could not be

prosecuted for violating the registration requirements of Megan’s Law III

because, at the time of his trial, Megan’s Law III had been voided as

unconstitutional).3

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3 Brown was sentenced under SORNA’s predecessor, Megan’s Law II. While

SORNA did not enhance the registration period for rape, which remained

lifetime registration, it did augment the registration requirements for all Tier

III offenders, such as Brown, to include quarterly in-person reporting and the

posting of their personal information on the Pennsylvania State Police website.

Muniz, 164 A.3d at 1210-11.

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This Court has ruled that Muniz created a substantive rule that

retroactively applies in the collateral context to timely-filed PCRA petitions.

See Commonwealth v. Rivera-Figueroa, 174 A.3d 674 (Pa. Super. 2017).

However, to date, our Supreme Court has not ruled that Muniz applies

retroactively to untimely PCRA petitions. Moreover, 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).

Similarly, Brown was required to demonstrate in his PCRA petition that

the United States Supreme Court or the Pennsylvania Supreme Court has held

that Derhammer applies retroactively to untimely PCRA petitions in order to

satisfy § 9545(b)(1)(iii). Brown did not do so. Nor could he, as no such

holding has yet been issued. Thus, Brown, cannot rely on Derhammer to

meet the timeliness exception.4

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4 Even if Derhammer had been held to apply retroactively, we fail to see how

it would benefit Brown. Derhammer was prosecuted for violating his Megan’s

Law III’s registration requirements after our Supreme Court invalidated

Megan's Law III in Commonwealth v. Neiman, 84 A.3d 603, 605 (Pa. 2013).

Here, Brown’s judgment of sentence became final before the Neiman

decision. Brown does not discuss the Neiman decision, let alone argue that

it applies retroactively to invalidate his conviction under Megan’s Law II.

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Hence, because Brown’s PCRA petition was untimely, and our Supreme

Court has not ruled that Muniz or Derhammer applies retroactively to

untimely PCRA petitions, the PCRA court patently 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 the error, and its lack of

statutory jurisdiction to grant Brown relief, the PCRA court properly vacated

its January 29, 2019 order, and dismissed the petition.5

While Brown is correct that, pursuant to § 5505, a court is generally

divested of jurisdiction to modify or rescind any order beyond thirty days after

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5 Brown superficially mentions the coordinate jurisdiction rule which generally

commands that, upon transfer of a matter between judges of coordinate

jurisdiction, the transferee judge may not alter the resolution of a legal

question previously decided by the transferor judge. See Commonwealth

v. Starr, 664 A.2d 1326, 1331 (Pa. 1995). However, an exception to this rule

exists where, as here, the prior holding was clearly erroneous and would

create a manifest injustice if followed. Id. at 1332.

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its entry, the rule is not without exception. Indeed, our Supreme Court has

held that the statute was never intended to eliminate the inherent power of a

court to correct obvious and patent mistakes in its orders, judgments and

decrees. See Holmes, 933 A.2d at 65 (holding that “the limits of jurisdiction

enshrined in § 5505 do not impinge on that time-honored inherent power of

courts”); see also Commonwealth v. Cole, 263 A.2d 339, 341 (Pa. 1970)

(considering the predecessor to § 5505). If the PCRA court had jurisdiction to

entertain Brown’s petition (i.e., if it was timely filed or Brown had, in fact,

established a timeliness exception), we would agree that pursuant to § 5505,

the PCRA court could not modify or rescind its January 29, 2019 order beyond

thirty days. However, as the PCRA court lacked statutory jurisdiction to enter

its January 29, 2019 order, the court retained the inherent authority to correct

its patent and obvious mistake. We therefore affirm the June 6, 2019 order

vacating the January 29, 2019 order.

Order affirmed.

Judge Stabile joins the memorandum.

Judge Pellegrini concurs in the result.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/10/2020

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