J-S46042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID CHARLES TANNER                       :
                                               :
                       Appellant               :   No. 108 EDA 2019

            Appeal from the PCRA Order Entered November 27, 2018
      In the Court of Common Pleas of Monroe County Criminal Division at
                        No(s): CP-45-CR-0000072-2012


BEFORE:      PANELLA, P.J., OLSON, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.:                          FILED SEPTEMBER 13, 2019

        Appellant, David Charles Tanner, appeals from the order entered

November 27, 2018, dismissing his first petition filed under the Post

Conviction Relief Act (PCRA).1 For the reasons set forth below, we affirm.

        On December 14, 2011, the Commonwealth charged Appellant with

three counts of rape of a child, three counts of statutory sexual assault, and

two counts of aggravated indecent assault.2 The charges related to allegations

that he had vaginal and oral sexual intercourse with a 12-year old female

victim on three or four occasions in November 2011.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   42 Pa.C.S. §§ 9541-9546.
2   18 Pa.C.S. §§ 3121(c), 3122.1(a), 3125(a)(7)-(8), respectively.
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       On July 2, 2012, Appellant pleaded guilty to one count of rape of a child.3

On November 2, 2012, the trial court sentenced Appellant to 84 to 168 months

of imprisonment and directed Appellant to comply with applicable sexual

offender registration requirements under Megan’s Law III, which was then in

effect.4 On the date of his sentencing, Appellant completed a “Notification at

Sentencing” form in which he acknowledged that he would be subject to

lifetime registration under Megan’s Law III.          Notification at Sentencing,

11/2/12, ¶11; see also 42 Pa.C.S. § 9595.1(b)(2) (expired).                      The

Commonwealth filed a timely post-sentence motion for the modification of the

term of imprisonment imposed upon Appellant, which the trial court denied on

February 1, 2013. Appellant did not file a notice of appeal from the November

2, 2012 sentencing order or the February 1, 2013 order denying the

Commonwealth’s post-sentence motion.

       On May 17, 2018, Appellant filed, pro se, his first PCRA petition in which

he alleged that the retrospective application of the Sex Offender Registration

and Notification Act (SORNA) to Appellant violated the ex post facto clauses

of   the   United     States    and    Pennsylvania   constitutions   pursuant    to

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017). On May 31, 2018,
____________________________________________


3The remaining charges against Appellant were nolle prossed on September
30, 2016.
4 42 Pa.C.S. §§ 9791-9799.9 (expired). Megan’s Law III remained as the
operative sexual offender registration legislation in Pennsylvania until its
successor legislation, the Sex Offender Registration and Notification Act, 42
Pa.C.S. §§ 9799.10-9799.42, went into effect on December 20, 2012. See
42 Pa.C.S. § 9799.41.

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the PCRA court entered an order scheduling a hearing on the petition and

granting Appellant’s counsel, who had previously been appointed to represent

Appellant in 2014, leave to file an amended petition.       Appellant’s counsel,

however, did not file an amended petition.          The Commonwealth filed an

answer to the PCRA petition, and following the hearing, the PCRA court

entered an order directing the parties to submit briefs concerning the issue

raised in the petition.

       On November 27, 2018, the PCRA court filed an order and opinion

dismissing the PCRA petition.           The PCRA court concluded that it lacked

jurisdiction over the petition because it was not timely filed within one year of

the date upon which the judgment of sentence became final and Appellant did

not file his petition within 60 days of the date the Muniz decision was issued

as he was required to do in order to avail himself of the PCRA’s timeliness

exceptions. PCRA Court Opinion, 11/27/18, at 4-5. On December 26, 2018,

Appellant filed a timely notice of appeal.5

       Appellant presents the following issue for our review:

       Whether the PCRA court erred and abused its discretion by
       dismissing [Appellant’s] PCRA petition as untimely where a
       material change in law, and the [Appellant’s] subsequent
       knowledge and discovery thereof, makes his filing timely?

Appellant’s Brief at 5 (unnecessary capitalization omitted).


____________________________________________


5Appellant filed his statement of errors complained of on appeal on January
18, 2019. On February 6, 2019, the trial court entered a statement in lieu of
opinion, in which it indicated that it was relying on its earlier opinion.

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       The PCRA provides that “[a]ny petition under this subchapter, including

a second or subsequent petition, shall be filed within one year of the date the

judgment becomes final.” 42 Pa.C.S. § 9545(b)(1). A PCRA petition may be

filed beyond the one-year time period only if the petitioner alleges and proves

one of the following 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.

Id. 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).6 “The PCRA’s time limitations implicate our jurisdiction and may


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6 In Act 146 of 2018, the General Assembly changed the timeframe for
asserting a timeliness exception under Section 9545(b)(2) from 60 days to
one year, effective December 24, 2018. Act of October 24, 2018, P.L. 894,
No. 146, §§ 2, 4. The legislature provided that this amendment “shall apply
only to claims arising one year before the effective date of this section or
thereafter.” Id., § 3. Appellant’s claim arose on the date Muniz was decided,
July 19, 2017, more than one year before the amendment to Section
9545(b)(2) went into effect; therefore, the expanded timeframe for asserting
a timeliness exception under the current version of this provision is not
applicable to the instant petition.



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not be altered or disregarded in order to address the underlying merits of a

claim.” Commonwealth v. Greco, 203 A.3d 1120, 1124 (Pa. Super. 2019).

       Appellant concedes that his PCRA petition is untimely.7          See PCRA

Petition, 5/17/18, ¶4. Furthermore, Appellant acknowledges that his May 17,

2018 PCRA petition was filed more than 60 days beyond the date that Muniz

was issued on July 19, 2017.            Appellant’s Brief at 12-13.   Nevertheless,

Appellant contends in his appellate brief that, pursuant to Commonwealth

v. Burton, 158 A.3d 618 (Pa. 2017), an incarcerated, pro se PCRA petitioner

is not presumed to have knowledge of information that is of public record and

his petition was timely based on the date he became aware of the Muniz

decision. Id. at 11-13.

       This claim fails.    In Burton, our Supreme Court held that a pro se

prisoner cannot be presumed to have knowledge of facts of public record for

the purposes of the newly discovered fact exception of Section 9545(b)(1)(ii)

of the PCRA.      158 A.3d at 638.        In his PCRA petition and appellate brief,

however, Appellant has invoked the timeliness exception set forth in
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7 Appellant did not file a direct appeal from his sentence, and therefore his
judgment of sentence became final 30 days after the trial court denied the
Commonwealth’s post-sentence motion on February 1, 2013. 42 Pa.C.S. §
9545(b)(3) (where a defendant does not file a direct appeal, judgment of
sentence becomes final at the expiration of the time for seeking review);
Pa.R.Crim.P. 720(A)(4) (where the Commonwealth files a timely motion to
modify sentence, the defendant’s notice of appeal from the judgment of
sentence shall be filed within 30 days of the disposition of that motion).
Appellant’s PCRA petition filed on May 17, 2018 was therefore patently beyond
the one-year time period allowed for in the PCRA.



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subsection (b)(1)(iii), asserting that our Supreme Court recognized a new

constitutional right with retroactive application in Muniz. See PCRA Petition,

5/17/18, ¶4; Appellant’s Brief at 12.8 In contrast to the newly discovered fact

timeliness exception of subsection (b)(1)(ii), a prisoner who asserts the

timeliness exception for a newly recognized retroactive constitutional right

under subsection (b)(1)(iii) is deemed to have knowledge of the underlying

judicial decision on the date it was issued, regardless of the date that the

petitioner became aware of the decision. Commonwealth v. Brandon, 51

A.3d 231, 235 (Pa. Super. 2012); see also Commonwealth v. Leggett, 16

A.3d 1144, 1146-47 (Pa. Super. 2011). “Neither the court system nor the

correctional system is obliged to educate or update prisoners concerning

changes in case law.” Brandon, 51 A.3d at 235 (citation omitted).9

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8 Even if Appellant had pleaded the subsection (b)(1)(ii) timeliness exception
in his PCRA petition based on his discovery of the Muniz ruling, this would
also fail. As our Supreme Court has explained, “judicial determinations are
not facts,” and therefore “decisional law does not amount to a new ‘fact’ under
section 9545(b)(1)(ii) of the PCRA.” Commonwealth v. Watts, 23 A.3d 980,
986-87 (Pa. 2011).
9 While Brandon and Leggett preceded our Supreme Court’s decision in
Burton recognizing the limited access that pro se prisoners face in accessing
information, the rule announced in Burton abolishing the presumption that
pro se prisoners have access to publically available information was confined
to the subsection (b)(1)(ii) timeliness exception.         158 A.3d at 638.
Furthermore, the Court in Burton specifically distinguished the statutory
language of the subsection (b)(1)(ii) and (b)(1)(iii) exceptions noting “that,
unlike subsection (b)(1)(ii), subsection (b)(1)(iii) precludes consideration of
the petitioner’s knowledge and an assessment of due diligence.” Id. at 636
(emphasis in original). Consequently, Burton did not alter the holdings of
Brandon and Leggett that a prisoner is presumed to be aware of changes in



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       Accordingly, because Appellant did not file his PCRA petition within 60

days of the date that the Muniz decision was issued as required by Section

9545(b)(2), he could not avail himself of the PCRA timeliness exception of

Section 9545 (b)(1)(iii).       The PCRA court therefore correctly ruled that it

lacked jurisdiction to reach the merits of his petition. See Greco, 203 A.3d

at 1124.

       Moreover, even if Appellant had filed his claim within 60 days of the date

that the Muniz decision was issued, his appeal would still fail to trigger the

Section 9545(b)(1)(iii) timeliness exception because our Supreme Court has

not recognized that Muniz is retroactive. In Commonwealth v. Murphy,

180 A.3d 402 (Pa. Super. 2018), a defendant filed an untimely PCRA petition

as to his 2009 conviction on sexual offenses, claiming that his lifetime

registration was unconstitutional pursuant to Muniz. This Court explained:

       Appellant’s reliance on Muniz cannot satisfy the ‘new retroactive
       right’ exception of section 9545(b)(1)(iii). In Commonwealth v.
       Abdul–Salaam, [] 812 A.2d 497 ([Pa.] 2002), our Supreme
       Court held that,

           [s]ubsection (iii) of Section 9545 has two requirements.
           First, it provides that the right asserted is a constitutional
           right that was recognized by the Supreme Court of the
           United States or this court after the time provided in this
           section. Second, it provides that the right “has been held”
           by “that court” to apply retroactively. Thus, a petitioner
           must prove that there is a “new” constitutional right and
           that the right “has been held” by that court to apply
           retroactively. The language “has been held” is in the past
____________________________________________


the law and therefore the 60-day period of Section 9545(b)(2) begins on the
date that a judicial decision is issued.

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          tense. These words mean that the action has already
          occurred, i.e., “that court” has already held the new
          constitutional right to be retroactive to cases on collateral
          review.    By employing the past tense in writing this
          provision, the legislature clearly intended that the right was
          already recognized at the time the petition was filed.

       Id. at 501.

       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 Abdul–Salaam[,
       812 A.2d at 501]. Because at this time, no such holding has been
       issued by our Supreme Court, Appellant cannot rely on Muniz to
       meet that timeliness exception.

Id. at 405-06 (emphasis in original); see also Greco, 203 A.3d at 1124-25.

To date, our Supreme Court has not ruled that Muniz is retroactive.

Accordingly, Appellant’s untimely PCRA petition does not satisfy the

requirements of the Section 9545(b)(1)(iii) timeliness exception.

       For the foregoing reasons, we affirm the PCRA court’s dismissal of

Appellant’s PCRA petition.10

       Order affirmed.




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10 Finally, we note that Muniz appears to have no application here because
Appellant was initially notified at sentencing that he would be required to
report as a sexual offender pursuant to Megan’s Law III and there is no
indication in the record that SORNA reporting requirements were
retrospectively applied to him.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/19




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