J-S47038-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                 Appellee              :
                                       :
         v.                            :
                                       :
JOSHUA MICHAEL NOVAK,                  :
                                       :
                 Appellant             :     No. 201 WDA 2018

                 Appeal from the PCRA Order January 9, 2018
                  in the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0001557-2013

BEFORE: OLSON, MCLAUGHLIN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:               FILED SEPTEMBER 06, 2018

     Joshua Michael Novak (Appellant) appeals from the January 9, 2018

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 July 28[], 2004, [Appellant] pled guilty to and was
     sentenced on criminal attempt to commit involuntary deviate
     sexual intercourse in Schuylkill County, Pennsylvania. As a
     result of Appellant’s conviction of said offense, Appellant was
     required to register as a sexual offender for his lifetime pursuant
     to Megan’s Law.

            On June 20[], 2013, the District Attorney’s Office of Erie
     County filed a criminal information, charging Appellant with
     failure to comply with registration requirements-verify address
     or be photographed under 18 Pa.C.S. § 4915.1(a)(2). Following
     a criminal jury trial on November 21[], 2013, the jury found
     Appellant guilty…. On December 31[], 2013, Judge Ernest J.
     DiSantis Jr. sentenced Appellant to [36] to [72] months of
     incarceration, with [240] days of credit for time served.



* Retired Senior Judge assigned to the Superior Court.
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             On October 30[], 2014, Appellant, pro se, filed his first
      PCRA petition.     By order dated October 31[], 2014, Judge
      DiSantis appointed William J. Hathaway, Esq., as Appellant’s
      counsel and directed Attorney Hathaway to supplement or
      amend Appellant’s pro se PCRA petition within thirty days.
      Attorney Hathaway filed a supplement to Appellant’s first PCRA
      petition on December 12[], 2014. Judge DiSantis scheduled an
      evidentiary hearing on January 26[], 2015. At said hearing,
      Appellant made an oral motion to withdraw his first PCRA
      petition, which Judge DiSantis granted.

                                      ***

             Appellant, pro se, filed the instant PCRA petition on August
      9[], 2017, which th[e PCRA] court [considered] as Appellant’s
      proper second PCRA petition. By order dated August 16[], 2017,
      th[e PCRA] court appointed and directed Attorney Hathaway to
      supplement or amend Appellant’s second PCRA petition within
      thirty days. Attorney Hathaway filed a supplement to motion for
      [PCRA] relief on September 13[], 2017.            By order dated
      September 13[], 2017, th[e PCRA] court directed the
      Commonwealth to respond … within thirty days.                  The
      Commonwealth… filed the Commonwealth’s response … on
      October 20[], 2017.

            On December 12[], 2017, th[e PCRA] court issued a notice
      to Appellant of th[e PCRA] court’s intention to dismiss
      Appellant’s second PCRA petition, [pursuant to Pa.R.Crim.P. 907,
      because it] was patently untimely under the [PCRA]. Said notice
      further advised Appellant of his right to file objections to said
      proposed dismissal within twenty days of the date said notice
      was issued. However, Appellant did not file any objections to
      th[e PCRA] court’s notice of intent to dismiss Appellant’s second
      PCRA petition. Thus, by order dated January 8[], 2018, th[e
      PCRA] court dismissed Appellant’s second PCRA petition since
      Appellant failed to allege and prove that his petition satisfied one
      of the three exceptions under 42 Pa.C.S. § 9545(b)(1)(i)-(iii).

PCRA Court Opinion, 3/16/2018, at 1-3 (unnecessary capitalization and

citations omitted).




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        This timely-filed appeal followed.1   On appeal, Appellant raises two

issues for our review: (1) whether the PCRA court erred in failing to grant

collateral relief under Commonwealth v. Muniz, 164 A.3d 1189 (Pa.

2017);2 and (2) whether the PCRA court erred in finding that the PCRA

petition was filed untimely.     Appellant’s Brief at 2.    Before reaching the

merits of Appellant’s claims, we must first consider whether Appellant has

filed timely 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.



1   Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

2 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.

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§ 9545(b)(3). Here, Appellant was sentenced on December 31, 2013. He

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

days later, on January 30, 2014, and he had one year, or until January 30,

2015, to file timely a PCRA petition.       Thus, Appellant’s August 9, 2017

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

exception to the timeliness requirements.

      In his pro se petition, Appellant attempts to plead all three exceptions 3

by invoking Muniz.      Appellant’s PCRA Petition, 8/9/2017, at ¶¶ 14-18.

While Appellant attempts to invoke all three exceptions, his Muniz argument

3 The PCRA provides the following three exceptions to its timeliness
requirements.

      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:

            (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).

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is not appropriate as to the first two exceptions (governmental interference

and newly-discovered facts), but could potentially support the third

exception (new retroactive right).   This Court considered whether Muniz

applies under similar circumstances to establish the third timeliness

exception in Commonwealth v. Murphy, 180 A.3d 402 (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


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J-S47038-18


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

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: 9/6/2018




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