J-A18044-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                 Appellee               :
                                        :
         v.                             :
                                        :
BENJAMIN SCHRAGGER,                     :
                                        :
                 Appellant              :    No. 3816 EDA 2017

                Appeal from the PCRA Order November 9, 2017
                 in the Court of Common Pleas of Lehigh County
              Criminal Division at No(s): CP-39-CR-0001091-2004
                                          CP-39-CR-0003747-2003
                                          CP-39-CR-0003748-2003

BEFORE: STABILE, J., STEVENS,* P.J.E., and STRASSBURGER,** J.

MEMORANDUM BY STRASSBURGER, J.:                  FILED OCTOBER 10, 2018

     Benjamin Schragger (Appellant) appeals from the November 9, 2017

order dismissing his petition filed under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.

     The PCRA court provided the following background.

            On August 23, 2004, [Appellant] entered guilty but
     mentally ill pleas in the above-captioned matters to two counts
     of rape, two counts of involuntary deviate sexual intercourse,
     one count of indecent assault, and six counts of corruption of
     minors.     [A]ppellant, who was a prominent member of a
     medieval reenactment group known as the “Society for Creative
     Anachronism,” sexually abused nine boys and two girls, most of
     whom were under his supervision pursuant to the group’s
     activities. The abuse occurred between 1997 and 2003 on a
     farm belonging to [A]ppellant’s parents, where he also resided.



___________________
* Former Justice specially assigned to the Superior Court.

** Retired Senior Judge assigned to the Superior Court.
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PCRA Court Opinion, 1/29/2018, at 1 (unnecessary capitalization, footnotes,

and parenthetical numbers omitted).

        On February 16, 2005, Appellant was found to be a sexually violent

predator (SVP) and was sentenced to an aggregate term of 31 ¼ to 62 ½

years of incarceration. Appellant did not move to withdraw his guilty plea or

file a notice of appeal.

        On April 14, 2015, Appellant pro se filed a petition for modification of

sentence nunc pro tunc, which the PCRA court treated as Appellant’s first

PCRA petition, and appointed counsel. On May 24, 2016, this Court affirmed

the PCRA court’s dismissal of Appellant’s PCRA petition. Commonwealth v.

Schragger, 151 A.3d 1157 (Pa. Super. 2016) (unpublished memorandum).

        On August 29, 2017, Appellant filed a subsequent PCRA petition which

is the subject of this appeal, alleging, inter alia, that he is entitled to relief

pursuant to Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).1 PCRA

Petition, 8/29/2017, at 2.      The PCRA court dismissed Appellant’s PCRA

petition on November 9, 2017.

        This timely-filed appeal followed.2   On appeal, Appellant raises three

issues for our review: (1) whether applying SORNA to Appellant violates the



1 In Muniz, our Supreme Court held that certain registration provisions of
Pennsylvania’s Sex Offender Registration and Notification Act (SORNA) are
punitive and retroactive application of those provisions violates the ex post
facto clause of the Pennsylvania constitution.
2   Both Appellant and the PCRA court have complied with Pa.R.A.P. 1925.

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ex post facto clauses of the Pennsylvania and United States constitutions;

(2) whether Appellant’s plea was voluntary; and (3) whether Appellant’s

sentences should have merged for sentencing purposes. Appellant’s Brief at

4. Before reaching the merits of Appellant’s claims, we must first consider

whether Appellant has timely filed his petition, 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).

      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).

      “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, Appellant was sentenced on February 16, 2005. He did

not file a direct appeal.   Thus, his judgment of sentence became final 30

days later, on March 18, 2005, and he had one year, or until March 20,




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2006,3 to file timely a PCRA petition.          Thus, Appellant’s August 29, 2017

petition is facially untimely, and he was required to plead and prove an

exception to the timeliness requirements.

        In his petition, Appellant attempts to plead the third timeliness

exception, the new retroactive right exception,4 by invoking Muniz.5 PCRA

Petition, 8/29/2017, at 2.      This Court considered whether Muniz applies

under similar circumstances in Commonwealth v. Murphy, 180 A.3d 402

3See 1 Pa.C.S. § 1908 (“Whenever the last day of any such period shall fall
on Saturday or Sunday…, such day shall be omitted from the
computation.”).

4   This exception provides as follows.

        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).

5  In his reply brief to this Court, Appellant attempts to plead another
timeliness exception, the newly-discovered facts exception, based upon
“[t]he breach of Appellant’s plea agreement” when SORNA was applied to
him. Appellant’s Reply Brief at 10, citing 42 Pa.C.S. § 9545(b)(1)(ii). 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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(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.   This Court considered

that argument and offered the following.

            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
     [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).

     In other words, this Court concluded that the holding in Muniz does

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

acknowledges that “if the Pennsylvania Supreme Court issues a decision

holding that Muniz applies retroactively, Murphy can then file a PCRA

petition, within 60 days 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. The same holds true for Appellant.

     Based on the foregoing, we conclude that Appellant’s petition was filed

untimely, and he has not asserted an exception to the timeliness


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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).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/18




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