J-S34037-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                  Appellee             :
                                       :
          v.                           :
                                       :
ERIC PAUL HAWK,                        :
                                       :
                  Appellant            :     No. 40 WDA 2018

              Appeal from the PCRA Order December 14, 2017
              in the Court of Common Pleas of Clarion County
           Criminal Division at No(s): CP-16-CR-0000412-2009
                                       CP-16-CR-0000432-2009

BEFORE:        BOWES, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:            FILED: August 7, 2018

     Eric Paul Hawk (Appellant) pro se appeals from the December 14,

2017 order dismissing his petition filed under the Post Conviction Relief Act

(PCRA), 42 Pa.C.S. §§ 9541-9546.      We affirm, albeit on a different basis

than that of the PCRA court.1

     We provide the following background. In January 2010, Appellant pled

guilty to criminal attempt – rape of child, aggravated indecent assault –

forcible compulsion, and indecent assault without the consent of other. The

more than 100 remaining charges were nolle prossed. The trial court found

that Appellant is a sexually violent predator (SVP) and sentenced him on




1 “It is well-settled that this Court may affirm on any basis.”
Commonwealth v. Clouser, 998 A.2d 656, 661 n.3 (Pa. Super. 2010).



* Retired Senior Judge assigned to the Superior Court.
J-S34037-18


December 15, 2010, to an aggregate sentence of 10½ to 30 years of

incarceration. Appellant did not file a post-sentence motion or direct appeal.

        On August 8, 2011, Appellant pro se filed a PCRA petition. The PCRA

court appointed counsel on Appellant’s behalf.             On July 19, 2012, counsel

filed    a   petition   to    withdraw    and    a     no-merit    letter   pursuant    to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988) and Commonwealth

v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).                   The PCRA court

granted counsel’s petition to withdraw and dismissed Appellant’s PCRA

petition without a hearing. Appellant did not file a notice of appeal from that

order.

        On September 25, 2017, Appellant filed pro se a second PCRA petition.

In that petition, Appellant asserted that he is serving an illegal sentence

pursuant to our Supreme Court’s decision in Commonwealth v. Muniz, 164

A.3d 1189 (Pa. 2017) (holding 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    clauses   of   the    federal   and    Pennsylvania      constitutions).      The

Commonwealth filed a response, and on December 14, 2017, the PCRA court

issued an order dismissing the petition.             Appellant timely filed a notice of




                                          -2-
J-S34037-18


appeal on January 2, 2018.2       The Appellant and the PCRA court have

complied with Pa.R.A.P. 1925.3

      On appeal, Appellant contends that the PCRA court erred in dismissing

his petition. Appellant’s Brief at 3. In considering this issue, we must first

consider whether Appellant has timely filed his PCRA 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, if invoking a timeliness exception, the petition “shall be filed

within 60 days of the date the claim could have been presented.” 42 Pa.C.S.

§ 9545(b)(2).




2  After filing his notice of appeal with this Court, Appellant filed with the
PCRA court a “Petition to Reconsider” on January 24, 2018, claiming Muniz
should be applied retroactively and that his SVP status renders his sentence
illegal. The PCRA court denied said petition to reconsider on January 30,
2018.

3 On January 11,    2018, the PCRA court ordered     Appellant to file a concise
statement of the    errors complained of pursuant    to Pa.R.A.P. 1925(b), but
Appellant did not   do so until February 26, 2018.    In the interim, the PCRA
court entered its   opinion pursuant to Pa.R.A.P.    1925(a) on February 13,
2018.



                                     -3-
J-S34037-18


      “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’s judgment of sentence was entered on

December 15, 2010, and he did not file a post-sentence motion or direct

appeal.   His judgment of sentence became final 30 days later, on January

14, 2011, and he had one year, until January 14, 2012, to file timely a PCRA

petition. Thus, Appellant’s September 25, 2017 petition is facially untimely,

and he was required to plead and prove an exception to the timeliness

requirements.

      Appellant pleads the exception set forth in subsection 9545(b)(1)(iii)

(“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 … 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.”).    PCRA Petition, 9/25/2017, at 3.   Appellant relies on our

Supreme Court’s holding in Muniz in support of his petition. Id. at 3-4.

      This   Court     considered   whether   Muniz    applies   under   similar

circumstances in Commonwealth v. Murphy, 180 A.3d 402 (Pa. Super.


                                      -4-
J-S34037-18


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 an appeal regarding a serial

PCRA petition was pending in this Court, Murphy filed a motion with this

Court     asserting   that   Muniz    renders    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 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 that 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 section 9545(b)(1)(iii).” Murphy, 180 A.3d at

406 n.1. The same holds true for Appellant.




                                      -5-
J-S34037-18


      Next, Appellant appears to claim his designation as an SVP renders his

sentence illegal, citing this Court’s decision in Commonwealth v. Butler,

173 A.3d 1212 (Pa. Super. 2017).4        See Appellant’s Brief at 12.     In that

case, Butler challenged his SVP designation on direct appeal.         This Court

concluded that, in light of our Supreme Court’s decision in Muniz and the

United States Supreme Court’s decisions in Apprendi and Alleyne,5

“[sub]section 9799.24(e) of SORNA [relating to SVP designation6] violates

the federal and state constitutions because it increases the criminal penalty

to which a defendant is exposed without the chosen fact-finder making the




4
  We recognize that Appellant did not include his SVP status claim implicating
the legality of his sentence in his PCRA petition and raised it for the first time
in his petition to reconsider filed with the PCRA court. In general, issues not
properly raised before the trial court and preserved on appeal are waived.
However, a challenge to the legality of sentence cannot be waived. See,
e.g., Commonwealth v. Dickson, 918 A.2d 95, 99 (Pa. 2007).
Nonetheless, such claims still must be presented in a timely-filed PCRA
petition. See Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super.
2014) (explaining that “[t]hough not technically waivable, a legality [of
sentence] claim may nevertheless be lost should it be raised … in an
untimely PCRA petition for which no time-bar exception applies, thus
depriving the court of jurisdiction over the claim”) (citation and quotation
marks omitted); Commonwealth v. Taylor, 65 A.3d 462, 465 (Pa. Super.
2013) (“[A]lthough illegal sentencing issues cannot be waived, they still
must be presented in a timely[-filed] PCRA petition.”) (citation omitted).

5 Apprendi v. New Jersey, 530 U.S. 466 (2000); Alleyne v. United
States, 570 U.S. 99 (2013).
6 Subsection 9799.24(e)(3) stated that at a hearing prior to sentencing, the
trial court shall determine, based on clear and convincing evidence, whether
the defendant was an SVP. See 42 Pa.C.S. § 9799.24(e)(3).

                                      -6-
J-S34037-18


necessary factual findings beyond a reasonable doubt.” Butler, 173 A.3d at

1218.

        Here, in challenging his SVP designation and arguing his sentence is

illegal, Appellant has not pled and proven a timeliness exception to his

facially untimely PCRA petition.7      To the extent Appellant argues the

exception set forth in 42 Pa.C.S. § 9545(b)(1)(iii) applies to his SVP claim,

he must demonstrate that the Pennsylvania Supreme Court has held that

Butler applies retroactively to cases pending on collateral review in order to

satisfy that section. At this time, because no such holding has been issued

by our Supreme Court, Appellant cannot rely on Butler to meet this

timeliness exception.      Thus, we are without jurisdiction to address

Appellant’s SVP challenge.      As with Appellant’s first claim, this Court

acknowledges that if the Pennsylvania Supreme Court issues a decision

holding that Butler applies retroactively, Appellant may file a PCRA petition




7
  We note that generally a challenge to one’s classification as an SVP is not
cognizable under the PCRA. Commonwealth v. Price, 876 A.2d 988 (Pa.
Super. 2005); Commonwealth v. Masker, 34 A.3d 841, 843-44 (Pa.
Super. 2011) (en banc). Here, it appears Appellant is claiming his SVP
classification renders his sentence illegal. “Issues relating to the legality of
sentence … are cognizable under the PCRA.”               Commonwealth v.
Hockenberry, 689 A.2d 283 (Pa. Super. 1997). Our research has not
revealed any reported cases addressing whether a challenge to the legality
of a sentence which includes an SVP designation is cognizable in the PCRA
context. Because we do not have jurisdiction to entertain the instant appeal,
we decline to address this issue here.


                                     -7-
J-S34037-18


within 60 days of that decision, attempting to invoke the exception in

subsection 9545(b)(1)(iii). See Murphy, 180 A.3d at 406 n.1.

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

untimely filed, and he has not proven an exception to the timeliness

requirements. Thus, he is not entitled to relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2018




                                     -8-
