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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


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 Super. 2015) (unpublished memorandum),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
____________________________________________


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

____________________________________________


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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