J-S42016-18

                                   2019 PA Super 30

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROCCO ROBERT GRECO                         :
                                               :
                       Appellant               :   No. 219 MDA 2018

             Appeal from the PCRA Order Entered January 12, 2018
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0000608-1986


BEFORE:      BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

OPINION BY McLAUGHLIN, J.:                          FILED FEBRUARY 08, 2019

        Rocco Robert Greco, a convicted sex offender, petitioned the trial court

to determine whether he was required to register pursuant to the Sex Offender

Registration and Notification Act, (SORNA), 42 Pa.C.S. §§ 9799.10-9799.41

(effective 12/20/2012). The trial court concluded that Greco did not have to

comply with SORNA’s registration requirements, but nonetheless ordered him

to comply with the registration requirements of Megan’s Law II.1 We conclude

that the trial court should have treated Greco’s petition as a Post Conviction

Relief Act2 petition and denied relief because the petition was untimely. We

therefore vacate the order and remand.

        The record submitted to this Court contains few details of the factual or

procedural background to this case. Nevertheless, the following is clear and is
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1The court referenced the reporting requirements defined in Megan’s Law II,
42 Pa.C.S. §§ 9791 – 9799.9 (expired Dec. 20, 2012).

2   42 Pa.C.S.A. §§ 9541 – 9546.


*    Retired Senior Judge assigned to the Superior Court.
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sufficient to dispose of this appeal. In May 1986, Greco pleaded guilty to four

counts of rape and numerous related crimes, including one count of incest.

The victim was his daughter, then 12 to 14 years old. See Commonwealth

v. Greco, 92 HBG 1991, unpublished memorandum at 2 (Pa.Super. filed Oct.

28, 1991). Greco was sentenced to an aggregate term of 20 to 40 years of

incarceration. He lodged an appeal, but we dismissed it as untimely. Id.

Thereafter, he filed several unsuccessful petitions for collateral relief. Id.

       In August 2017, Greco filed with the trial court a motion titled, “Motion

to Confirm Defendant is Not Required to Register under SORNA.” Greco’s Mot.,

08/10/2017. In this motion, Greco noted that his convictions predated the

enactment of SORNA.3 Citing in support Commonwealth v. Muniz, 164 A.3d

1189 (Pa. 2017), Greco sought confirmation that he was not subject to

retroactive application of SORNA’s registration provisions.4 In response, the

Commonwealth asserted that the motion was a timely but meritless PCRA

petition. See Commonwealth’s Response, 08/25/2017, at 1.

       In January 2018, the lower court examined the motion on the merits. It

concluded that, despite Muniz, and barring further legislative action, Greco


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3 Though we refer to this statute as SORNA, Pennsylvania courts have also
referred to it as “Megan’s Law IV.” See Commonwealth v. Giannantonio,
114 A.3d 429, 432 n.1 (Pa.Super. 2015).

4 It is not apparent from the record whether Greco has been granted parole
or whether he is presently subject to registration, though in his brief to this
Court, he suggests his parole awaits a home plan approval. See Greco’s Br.
at 3.

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remained subject to lifetime registration under Megan’s Law II due to his rape

conviction. Trial Ct. Order, 01/12/2018.

      Greco timely appealed. In a court-ordered Pa.R.A.P. 1925(b) statement,

Greco asserted that the court erred in directing his compliance with Megan’s

Law II because “under SORNA, all prior versions of Megan’s Law have

expired.” Greco’s Pa.R.A.P. 1925(b) Statement, 03/01/2018.

      In its responsive opinion, the lower court reinterpreted the motion as an

untimely PCRA petition. According to the court, Greco failed to establish an

exception to the PCRA’s one-year time bar, and therefore, the court was

precluded from addressing the merits of his claim. See Trial Ct. Opinion (TCO),

03/08/2018, at 2-4 (citing in support Commonwealth v. Murphy, 180 A.3d

402, 405-06 (Pa.Super. 2018) (concluding that the substantive rule

recognized in Muniz does not establish a timeliness exception to the PCRA)).

      Greco raises the following claim on appeal:

          Whether the [lower] court erred after it held that [Greco] is
          required to comply with Megan’s Law II, where Megan’s Law
          III, which replaced Megan’s Law II, was held to be invalid in
          2013[,] when Commonwealth v. Derhammer, 173 A.3d 723
          (Pa. 2017)[,] held that under SORNA, all previous versions
          of Megan’s Law have expired?

Greco’s Br. at 2.

      Initially, we consider the nature of Greco’s motion. It is well settled that

the PCRA has subsumed other post-conviction relief. Commonwealth v.

Taylor,   65   A.3d   462,   465-66   (Pa.Super.    2013)   (citing,   inter   alia,

Commonwealth v. Peterkin, 722 A.2d 638 (Pa. 1998)); 42 Pa.C.S. § 9542.


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“Issues that are cognizable under the PCRA must be raised in a timely PCRA

petition.” Taylor, 65 A.3d at 466. Thus, a petitioner may not mislabel his

petition in an attempt to circumvent the PCRA’s timeliness requirements. Id.

      In his motion, Greco sought relief from the sex offender registration

provisions set forth in SORNA. See Greco’s Motion. This Court has determined

previously that a challenge to retroactive application of Megan’s Law does not

implicate “the statutory and rule-based requirements governing a PCRA

petition.” Commonwealth v. Bundy, 96 A.3d 390, 394 (Pa.Super. 2014);

see also Commonwealth v. Price, 876 A.2d 988, 992 (Pa.Super. 2005)

(stating that challenge to non-punitive, regulatory “registration, notification,

and counseling requirements for offenders under Megan’s Law” is not

cognizable under the PCRA). Thus, this Court has in the past criticized the

analysis of lower courts where they have denied petitions for relief from

Megan’s Law’s registration requirements, on the basis that they were untimely

PCRA petitions. See, e.g., Bundy, 96 A.3d at 394 (rejecting the lower court’s

conclusion that the appellant’s petition was untimely under the PCRA and

addressing the merits of the appellant’s claim); Commonwealth v. Partee,

86 A.3d 245, 247 (Pa.Super. 2014) (rejecting the lower court’s PCRA

analysis).

      Recently, however, our Supreme Court determined that SORNA’s

registration provisions are punitive and that retroactive application of SORNA’s

registration provisions violates the federal and state ex post facto clauses.

Muniz, 164 A.3d at 1193. The punitive nature of these provisions implicates

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the legality of a sex offender’s sentence. See Commonwealth v. Butler, 173

A.3d 1212, 1215 (Pa.Super. 2017) (concluding that a challenge to an

appellant’s increased registration requirements under SORNA implicated the

legality of the sentence imposed). Thus, claims challenging application of

SORNA’s registration provisions – unlike prior versions of Megan’s Law – are

properly considered under the PCRA. Murphy, 180 A.3d at 405-06 (discussing

the impact of Muniz on the timeliness of a petitioner’s PCRA petition);

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

(remanding for further proceedings to address the petitioner’s timely PCRA

claim in light of Muniz).

      For these reasons, we agree with the lower court that Greco’s motion is

properly considered a PCRA petition. His invocation of Muniz implicates the

legality of his sentence, which is an issue cognizable under the PCRA and,

therefore, subject to the PCRA’s timeliness requirements. Murphy, 180 A.3d

at 405-06; Taylor, 65 A.3d at 466.

      We review an order denying relief under the PCRA to determine whether

the findings of the PCRA court are supported by the evidence of record and

free of legal error. Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa.

2007). We afford the court’s factual findings deference unless there is no

support for them in the certified record. Commonwealth v. Brown, 48 A.3d

1275, 1277 (Pa. Super. 2012) (citing Commonwealth v. Anderson, 995

A.2d 1184, 1189 (Pa. Super. 2010)).




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      Before addressing the merits of Greco’s claim, we must consider its

timeliness. Under the PCRA, any petition for relief, including second and

subsequent petitions, must be filed within one year of the date on which the

judgment of sentence becomes final. See Commonwealth v. Bennett, 930

A.2d 1264, 1267 (Pa. 2007).

      There are three exceptions:

         (i) the failure to raise the claim previously was the result of
         interference by government officials with the presentation
         of the claim in violation of the Constitution or laws of this
         Commonwealth or the Constitution or laws of the United
         States;

         (ii) the facts upon which the claim is predicated were
         unknown to the petitioner and could not have been
         ascertained by the exercise of due diligence; or

         (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)(i)-(iii). Any petition attempting to invoke these

exceptions “shall be filed within 60 days of the date the claim could have been

presented.” 42 Pa.C.S. § 9545(b)(2); see Commonwealth v. Gamboa-

Taylor, 753 A.2d 780, 783 (Pa. 2000). The PCRA’s time limitations implicate

our jurisdiction and may not be altered or disregarded in order to address the

underlying merits of a claim. See Bennett, 930 A.2d at 1267.




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       Greco’s motion – i.e., his petition seeking relief available under the PCRA

– was untimely.5 Accordingly, he was required to establish jurisdiction by

pleading and proving an exception to the one-year time bar. See Bennett,

930 A.2d at 1267. Greco neither pleaded nor proved an exception. See

Greco’s Motion.

       Belatedly, Greco attempts to establish on appeal the “new retroactive

right” exception of section 9545(b)(1)(iii). See Greco’s Br. at 5-6. According

to Greco, “Muniz created a substantive rule that retroactively applies in the

collateral context.” Id. (citing Rivera-Figueroa, 174 A.3d at 678). However,

exceptions to the time bar must be pleaded and proved in the PCRA petition

and may not be raised for the first time on appeal. Thus, he has waived this

issue. Bennett, 930 A.2d at 1267; Commonwealth v. Burton, 936 A.2d

521, 525 (Pa.Super. 2007); see also Pa.R.A.P. 302(a) (“Issues not raised in

the lower court are waived and cannot be raised for the first time on appeal.”).

       Absent waiver, Greco’s assertion of the “new retroactive right” exception

is without merit. In Murphy, a convicted sex offender untimely petitioned for

collateral relief from a sentence imposed in 2009. Murphy, 180 A.3d at 404.



____________________________________________


5 It is patently untimely. Greco pleaded guilty in May 1986; we dismissed his
initial appeal as untimely shortly thereafter, and he withdrew a subsequent
nunc pro tunc appeal in 1988. See Commonwealth v. Greco, 516 HBG 1986
(Pa.Super. entered Sept 23, 1986); 710 HBG 1988 (Pa.Super. entered Nov.
2, 1988); and 711 HBG 1988 (Pa.Super. entered Nov. 2, 1988). Therefore,
his judgment of sentence became final 30 years ago. See 42 Pa.C.S. §
9545(b)(3).

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According to the petitioner, Muniz rendered his sentence unconstitutional. Id.

at 405. Upon review, we stated the following:

          Appellant’s reliance on Muniz cannot satisfy the ‘new
          retroactive right’ exception of section 9545(b)(1)(iii). . . .
          Here, we acknowledge that this Court has declared that,
          “Muniz created a substantive rule that retroactively applies
          in the collateral context.” Commonwealth v. Rivera-
          Figueroa, 174 A.3d 674, 678 (Pa. Super. 2017). However,
          because Appellant’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 section
          9545(b)(1)(iii). See [Commonwealth v. ]Abdul-Salaam,
          [812 A.2d 497, 501 (Pa. 2002)]. Because at this time, no
          such holding has been issued by our Supreme Court,
          Appellant cannot rely on Muniz to meet that timeliness
          exception.

Murphy, 180 A.3d at 405-06. Thus, under circumstances similar to those

here, this Court has concluded that the rule recognized in Muniz does not

establish a timeliness exception to the PCRA. Id.

       A petition of the sort Greco filed – a post-conviction petition for a

declaration that he is not subject to SORNA, filed in the Court of Common

Pleas and against the Commonwealth – is subsumed under the PCRA.6 His

motion was therefore properly an untimely PCRA petition. However, he filed

his motion more than one year after his judgment of sentence became final

and he has failed to establish an exception to the PCRA’s timeliness

____________________________________________


6 Greco may be able to obtain relief by other means, such as by filing a petition
for review in the Commonwealth Court. See, e.g., J.J. M. v. Pa. State Police,
183 A.3d 1109 (Pa.Cmwlth. 2018) (applying Muniz and granting relief).



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requirements. Id. Accordingly, the lower court was without jurisdiction to

entertain the merits of his claim. Bennett, 930 A.2d at 1267. We therefore

vacate the January 12, 2018 order and remand.7 Ragan, 923 A.2d at 1170.

       Order vacated. Case remanded. Jurisdiction relinquished.

       Judge Strassburger joins the Opinion.

       Judge Bowes files a Concurring and Dissenting Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/08/2019




____________________________________________


7 Hereafter, if the Pennsylvania Supreme Court holds that Muniz applies
retroactively to untimely PCRA petitions, Appellant may file a new petition
within 60 days of that decision. See 42 Pa.C.S. § 9545(b)(2).

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