J-S43023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DONALD SPRANKLE                            :
                                               :
                       Appellant               :   No. 1910 WDA 2017

               Appeal from the PCRA Order November 16, 2017
     In the Court of Common Pleas of Jefferson County Criminal Division at
                       No(s): CP-33-CR-0000265-2013

BEFORE: STABILE, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY DUBOW, J.:                              FILED JANUARY 29, 2019

        Appellant, Donald Sprankle, appeals pro se from the November 16, 2017

Order entered in the Jefferson County Court of Common Pleas dismissing his

second Petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546. Because Appellant filed an untimely Petition, we are

without jurisdiction to review its merits. Accordingly, we affirm.

        On July 12, 2013, the Commonwealth charged Appellant with 25 counts

each of Indecent Assault—Person Less than 13, Corruption of Minors, and

Aggravated Indecent Assault of a Child, a first-degree felony, arising from

crimes Appellant committed in 2006 and 2007.1           On September 4, 2013,




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1   18 Pa.C.S. §§ 3126(a)(7); 6301(a)(1)(ii); and 3125(b), respectively.
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Appellant entered a negotiated guilty plea to 2 counts each of Aggravated

Indecent Assault, a second-degree felony, and Corruption of Minors.2

       On January 3, 2014, the court sentenced Appellant to two consecutive

terms of 5 to 10 years’ incarceration for his Aggravated Indecent Assault

convictions, and to two additional consecutive sentences of 1 day to 5 years’

incarceration for his Corruption of Minors convictions.             Thus, Appellant’s

aggregate sentence was 10 years’ and 2 days’ to 30 years’ incarceration.

       The court also determined that Appellant is a Sexually Violent Predator.

Additionally, Appellant’s conviction of Aggravated Indecent Assault classified

him as a Tier III sexual offender, and required him to comply with the lifetime

registration and reporting requirements of the Sexual Offender Registration

and   Notification    Act    (“SORNA”).        See   42   Pa.C.S.   §§   9799.14(d);

9799.15(a)(3).       Appellant did not file a Post-Sentence Motion or a direct

appeal from his Judgment of Sentence. His sentence, thus, became final 30

days later, on February 3, 2014.3



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2 18 Pa.C.S. §§ 3125(a)(7) and 6301(a)(1)(ii), respectively. Appellant’s
Sentencing Order, however, incorrectly identified the subsection and grading
of Appellant’s Aggravated Indecent Assault conviction as 18 Pa.C.S. §
3125(b), a first-degree felony. Recognizing this error, on October 28, 2016,
the trial court entered an Order correcting Appellant’s sentences to reflect that
he had pleaded guilty to Aggravated Indecent Assault, 18 Pa.C.S. §
3125(a)(7), a second-degree felony.
3See 42 Pa.C.S. § 9545(b)(3); Pa.R.A.P. 903. The thirtieth day after January
3, 2014, was Sunday, February 2, 2014.



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       On July 20, 2016, Appellant filed a pro se PCRA Petition in which he

claimed that his plea counsel, John Ingros, Esquire, had rendered ineffective

assistance and that he is serving an illegal mandatory minimum sentence

pursuant to Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016).

       The PCRA court appointed counsel who, on July 29, 2016, filed a Petition

to Withdraw as Counsel as well as a Turner/Finley “no-merit” letter.4 On

August 1, 2016, the PCRA court advised Appellant of its intent to dismiss his

Petition without a hearing pursuant to Pa.R.Crim.P. 907.

       That same day, the court permitted counsel to withdraw, and on August

25, 2016, it dismissed Appellant’s PCRA Petition as untimely. Appellant timely

appealed, but on January 30, 2017, this Court dismissed Appellant’s appeal

for failure to file a brief. See Commonwealth v. Sprankle, No. 1505 WDA

2016 (Pa. Super. filed Jan. 30, 2017).

       On June 2, 2017, Appellant filed with the PCRA court a “Letter in

Application for ‘Application to Reinstate Appeal.’” In this “Letter,” Appellant

requested that the PCRA court reinstate his appeal rights nunc pro tunc. The

PCRA court denied this request on June 8, 2017.

       On September 22, 2017, Appellant filed pro se the instant PCRA Petition.

In this Petition, Appellant reiterated his claim that he is serving an illegal

mandatory minimum sentence pursuant to Wolfe, and asserted that the

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4 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).



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requirement that he register as a sex offender for his lifetime is

unconstitutional pursuant to Commonwealth v. Muniz, 164 A.3d 1189 (Pa.

2017).5 In an effort to overcome the PCRA’s jurisdictional time-bar, Appellant

averred that his petition was timely pursuant to 42 Pa.C.S. § 9545(b)(1)(iii)

(“[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.”).

       On October 12, 2017, the PCRA court advised Appellant of its intent to

dismiss his Petition without a hearing pursuant to Pa.R.Crim.P. 907.       On

November 6, 2017, Appellant filed a Response to the court’s Rule 907 Notice,

baldly restating his claim that he is entitled to relief pursuant to Wolfe and

Muniz.

       On November 16, 2017, the PCRA court dismissed Appellant’s Petition

as untimely and meritless. This appeal followed. Both Appellant and the PCRA

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

       Appellant raises the following two issues on appeal:

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5 In Muniz, the Court held that SORNA’s stringent registration and reporting
requirements constitute criminal punishment for purposes of the ex post facto
clause of the Pennsylvania Constitution, and therefore do not apply to
offenders whose crimes occurred before SORNA’s December 20, 2012
effective date. Muniz, 164 A.3d at 1223. The Pennsylvania Supreme Court
has not held that the new right that Muniz created applies retroactively in
order to satisfy the timeliness exception provided in 42 Pa.C.S. §
9545(b)(1)(iii). Commonwealth v. Murphy, 180 A.3d 402, 405-06 (Pa.
Super. 2018).

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         1. Did the lower court err by denying PCRA relief from the SORNA
            registration ruled unconstitutional by [the] Supreme Court of
            Pennsylvania?

         2. Did the lower court err by denying PCRA relief from the illegal
            mandatory minimum sentence imposed on the Appellant?

Appellant’s Brief at 7.

         We review the denial of a PCRA Petition to determine whether the record

supports the PCRA court’s findings and whether its order is otherwise free of

legal error. Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014). This

Court grants great deference to the findings of the PCRA court if they are

supported by the record. Commonwealth v. Boyd, 923 A.2d 513, 515 (Pa.

Super. 2007).      We give no such deference, however, to the court’s legal

conclusions.     Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super.

2012). Before addressing the merits of Appellant’s claims, however, we must

first determine whether we have jurisdiction to entertain the underlying PCRA

Petition.     No court has jurisdiction to hear an untimely PCRA petition.

Commonwealth v. Hackett, 956 A.2d 978, 983 (Pa. 2008).

         A petitioner must file a PCRA Petition within one year of the date the

underlying judgment becomes final; a judgment is deemed final at the

conclusion of direct review or at the expiration of time for seeking review. 42

Pa.C.S. § 9545(b)(1), (3). The PCRA, however, provides exceptions to the

timeliness requirement in certain circumstances. 42 Pa.C.S. § 9545(b)(1)(i)-

(iii).   In addition to establishing the elements of a timeliness exception, a




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petitioner must also establish that he filed his PCRA petition within 60 days of

the date he could have presented his claim. 42 Pa.C.S. § 9545(b)(2).6

       We note that even though a defendant cannot waive a legality of

sentence issue, we do not have jurisdiction to review the legality of a sentence

in a PCRA petition unless the petitioner can establish that the PCRA grants the

court the authority to exercise jurisdiction over the legality of sentence issue.

Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super. 2007); see 42

Pa.C.S. § 9545(b); Commonwealth v. Fahy, 737 A.2d 214, 223 (Pa. 1999)

(“Although legality of sentence is always subject to review within the PCRA,

claims must still first satisfy the PCRA’s time limits or one of the exceptions

thereto.” (citation omitted)).

       Appellant’s Petition, filed on September 22, 2017—more than 3 years

after his Judgment of Sentence became final—is facially untimely.

       In his PCRA Petition and in his Brief to this Court, Appellant attempted

to invoke the timeliness exception set forth in Section 9545(b)(1)(iii), alleging

that his illegal sentence claims are based on a newly recognized constitutional

right. We must, however, first determine whether Appellant filed his PCRA




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6 The legislature recently amended 42 Pa.C.S. § 9545(b)(2) so that, effective
December 24, 2018, a petitioner must file his petition asserting a timeliness
exception within one year of the date he could have presented his claim. See
Section 3 of Act 2018, Oct. 24, P.L. 894, No. 146, effective Dec. 24, 2018
(providing that “the amendment of subsec. (b)(2) by that Act shall apply to
claims arising on Dec. 24, 2017 or thereafter”).


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Petition within 60 days of the date when Appellant could first assert a

challenge to the legality of his sentence.

       In his first issue, Appellant claims that, pursuant to the Pennsylvania

Supreme Court’s holding in Muniz, SORNA’s registration requirements are

unconstitutional as applied to him because he committed the crimes for which

he was convicted between late 2006 and mid-2007, prior to SORNA’s

enactment,      and    the   trial   court     imposed   the   increased   registration

requirements that SORNA mandates. Appellant’s Brief at 13, 18.

       The Pennsylvania Supreme Court filed its decision in Muniz on July 19,

2017. Thus, Appellant could have first asserted a claim on this date. The 60-

day time period for raising his claim expired on Monday, September 18, 2017.7

       This Court’s review of the record indicates that Appellant hand-dated

the instant PCRA Petition on September 19, 2017, a day after the 60-day

period expired.       Furthermore, the prothonotary docketed the Petition on

September 22, 2017, three days after the time period expired.                    Thus,

Appellant did not satisfy even the first requirement that he file his Petition

within 60 days that he could have first asserted a claim under Muniz. Since

Appellant failed to do so, we lack jurisdiction over his PCRA Petition.8
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7See 42 Pa.C.S. § 9545(b)(2). The sixtieth day after July 19, 2017, was
Sunday, September 17, 2017.

8 Even if Appellant had timely filed his Petition, as noted supra, the
Pennsylvania Supreme Court has not held that the new constitutional right
that Muniz establishes applies retroactively. Murphy, 180 A.3d at 406.
Thus, Appellant cannot rely on Muniz to satisfy the timeliness exception to
the PCRA’s time-bar. Id.

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      In his second issue, Appellant claims that, pursuant to Commonwealth

v. Wolfe, 140 A.3d 651 (Pa. 2016), he is serving an illegal mandatory

minimum sentence. He avers that he filed this claim within 60 days of the

Pennsylvania Supreme Court’s June 20, 2016 decision. The record, however,

belies this claim. As discussed, supra, Appellant filed the instant Petition on

September 22, 2017, which is more than 15 months after the Court filed the

decision in Wolfe.      This claim is, likewise, untimely and we are without

jurisdiction to review it.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/29/2019




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